Citation Nr: 21072849 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 09-16 824 DATE: December 6, 2021 ORDER Entitlement to service connection for psoriatic arthritis is denied. Entitlement to service connection for degenerative joint disease (DJD), i.e., arthritis of the thoracolumbar spine is denied. Entitlement to service connection for DJD of the left shoulder is denied. Entitlement to service connection for DJD of the left knee is denied. FINDINGS OF FACT 1. The competent, probative evidence of record fails to relate the diagnosed psoriatic arthritis to service or a service-connected disability. 2. The competent, probative evidence of record fails to relate a thoracolumbar disorder to service or a service-connected disability. 3. The competent, probative evidence of record fails to relate a left shoulder disorder to service or a service-connected disability. 4. The competent, probative evidence of record fails to relate a left knee disorder to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for psoriatic arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303, 3.310. 2. The criteria for service connection for a thoracolumbar disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.310. 3. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.310. 4. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to March 1970. The Veteran's claims for service connection for DJD of his thoracolumbar spine, left shoulder, and left knee were denied by a VA regional office (RO)in a May 2008 rating decision. The Board notes the procedural history of this appeal is extensive and encompasses multiple remands dated in April 2011, September 2013, November 2015, January 2019, November 2020, and July 2021. The Board also requested a VHA medical opinion in March 2018. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include hypertension, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a) can also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Finally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal as the preponderance of the evidence weighs against a finding of a relationship between the Veteran's claimed disorders and any service-connected disability. In deciding a claim for service connection, all theories of entitlement must be considered. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. 1. Psoriatic arthritis The Veteran is seeking entitlement to service connection for psoriatic arthritis that he believes are due to his military service. Alternatively, the Veteran is arguing this disorder is due to or aggravated by his service connected left ankle disability and left hand with ulnar nerve injury disability. See September 2020 Appellant Brief. In the present case, the record shows the Veteran has been diagnosed with psoriatic arthritis. See again August 2021 VA Non-Degenerative Arthritis DBQ. Therefore, the first element of service connection has been satisfied. Next, as to the second element of service connection, the Board notes that the service treatment records are completely silent for any complaints of, treatment for, or a diagnosis of psoriasis or psoriatic arthritis during service. Thus, there is no evidence of in-service incurrence on a direct basis, despite the Veteran's contentions that his diagnosed disorder is directly attributable to his military service. Additionally, there is no evidence that the claim was noted. Hence, service connection based on continuity of symptomatology is not warranted. As noted in the introduction, there have been multiple remands in the present appeal in attempts to obtain adequate opinions. As the substance of the examinations and opinions of those deemed inadequate have been discussed ad nauseam in the prior remands, the Board need not discuss the matter again. Therefore, the November 2013 VA examination report, April 2016 Addendum Opinion, April 2018 VHA expert opinion response, February 2020 VA examinations and opinions, and February 2021 VA examination reports and opinions are all inadequate and not probative for rating purposes. The only adequate examination and opinion of record is the August 2021. See again August 2021 VA Non-Degenerative Arthritis DBQ. Thus, as to the determinative issue of etiology, and the third element of service connection, the nexus, the August 2021 VA medical opinion found against both direct and secondary service connection. Specifically, the examiner noted that the Veteran was diagnosed with psoriasis in 2000 and began complaining of multiple joint stiffness and discomfort later. The examiner then confirmed a diagnosis of psoriatic arthritis, beginning 2004. The examiner also attributed the joint pain in the left shoulder, left knee, and thoracolumbar spine to the diagnosed psoriatic arthritis. In the accompanying August 2021 VA Medical Opinion, the examiner explained that the rheumatologists have conferred the blanket diagnosis of Psoriatic Arthritis and have not specified the joints involved. Therefore, since the notes suggest improvement with treatment, it gives weight to the suggestion that all the arthritis complaints are due to the psoriasis. However, the examiner concluded that there is nothing in the medical record that suggests, states, or implies that the psoriasis or the psoriatic arthritis began during the Veteran's service. Therefore, it is less likely than not incurred in or caused by the specific in service illness, event or injury. As to secondary service connection, the examiner noted that it is a chronic heterogeneous inflammatory musculoskeletal disease. He noted it is difficult to assume that the Veteran's history of developing psoriatic arthritis in the 21st century and having his left ankle injured by having the door slammed on his ankle in the late 1960's as having a relationship. Further, the trauma to the ulnar nerve in 1969 and the development of psoriatic arthritis in 2003 cannot be connected physiologically or temporally. See id. Also of record are VA treatment records that show the above noted diagnoses. However, there are no etiological opinions in these treatment records. In fact, the Board notes there are no other opinions of record demonstrating there is a connection between the clamed disorder and his service on either a direct or secondary basis. See 38 C.F.R. § 3.303, 3.310. The only evidence offered in support of his claim that his psoriatic arthritis is either due to service, or due to or aggravated by the service-connected left ankle and left hand with ulnar nerve injury disabilities, are the Veteran's own statements. To this extent, the Board notes that he is competent to describe the symptoms associated with his disorder, such as pain, which is readily observable by laypersons. Indeed, he has done so during his VA examinations and in the course of treatment for the disorder during the appeal. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion as to the etiology of his diagnosed right ankle disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of this disorder, which the August 2021 VA examiner stated was a chronic heterogeneous inflammatory musculoskeletal disease, and requires medical testing to diagnose and medical expertise to determine the etiology. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."); see Savage v. Gober, 10 Vet. App. 488, 494 (1997) (veteran not competent to provide medical opinion linking present arthritis to in-service fall). Thus, the Veteran's opinions regarding the etiology of his claimed disorder is not competent medical evidence. The Board finds the opinions of the August 2021 VA examiners to be significantly more probative than the Veteran's lay assertions, where it is based on medical expertise and consideration of the Veteran's medical history. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Thoracolumbar spine, left shoulder, and left knee disorders The Veteran is seeking entitlement to service connection for thoracolumbar DJD, left knee DJD, and left shoulder DJD, that he believes are due to his military service. Alternatively, the Veteran is arguing that these disorders are due to or aggravated by his service connected left ankle disability in that it has resulted in an altered gait, impacting his back and left knee. Similarly, the Veteran is arguing that these disorders due to or aggravated by his service connected left hand with ulnar nerve injury disability. See September 2020 Appellant Brief. Finally, the record suggests that these disorders may be due to or aggravated by the diagnosed psoriatic arthritis. In the present case, the record shows the Veteran has been diagnosed with DJD of the thoracolumbar spine 2004, left knee in the 1980s, and left shoulder in 2004. See August 2021 VA Examinations. However, the first noted diagnoses of arthritis was, at its earliest, in the 1980s for the left knee. As the diagnoses for DJD were not confirmed until at a minimum of 10 years following his separation in 1970, entitlement to presumptive service connection is not warranted. 38 C.F.R. § 3.309. Moreover, there is no evidence of continuity of symptomatology regarding this disorder as it was first identified in the 1980s for the left knee, and not until 2004 for the thoracolumbar spine and left shoulder. Therefore, continuity of symptomatology is not demonstrated. See 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, 1335-36, 1340 (Fed. Cir. 2013). Turning to direct service connection, the aforementioned diagnoses of DJD for the claimed disorders satisfy the first element of service connection. See again August 2021 VA Examinations. Next, as to the second element of service connection, the Board notes that the service treatment records are completely silent for any complaints of, treatment for, or diagnoses of the claimed conditions during service. Thus, there is no evidence of in-service incurrence on a direct basis, despite the Veteran's contentions that his disorders are directly attributable to his military service. Turning to the determinative issue of etiology, and the third element of service connection, the nexus, the only probative etiological opinion of record are the findings contained in the August 2021 VA examinations and accompanying medical opinion. Specifically, the VA examiner concluded that it is less likely than not the claimed disorders were incurred in or caused by a specific in service illness, event or injury as there is nothing in the medical record to suggest, state or imply that anything other than advancing age and the wear and tear on the joints is the cause of the diagnosed DJD. Turning to secondary service connection as it pertains to the thoracolumbar spine, the examiner stated that it is less likely than not that thoracolumbar spine disorder is the result of the service connected left hand condition due that includes the ulnar nerve injury. As rationale, the examiner explained that "while the hand is connected to the arm and the arm is connected to the shoulder and the shoulder is connected to the spine," there is no physiologic connection in the medical literature that would allow a hand condition to cause a spine arthritis. Further, the examiner stated it is not likely that a peripheral nerve injury could cause a spine arthritis. Finally, as to the argument that the Veteran's left ankle arthritis cause his thoracolumbar arthritis by changing his gait is also not supported in the medical literature. Turning to the left knee, the examiner stated the following: [I]t remains less likely than not that any knee disorder could be due to a hand condition, even if it includes an ulnar nerve injury unless one hypothecated that the left hand held a blunt instrument and repeatedly struck the left knee...it is also less likely than not that the left ankle caused the deterioration of the medial femorotibial joint. Concerning the left shoulder disorder, the examiner noted the condition has previously been judged due to the development of degenerative joint disease and unrelated to any service-connected injury. Further, there is no physiologic mechanism by which an ankle injury or hand condition, could cause a shoulder arthritis and likewise, the ulnar nerve injury could cause a shoulder arthritis. Therefore, the diagnosed left shoulder condition is less likely than not proximately due to or the result of the left hand or left ankle condition. Finally, with respect to the contention that the thoracolumbar, left knee, and left shoulder DJD is due to or aggravated by his psoriatic arthritis, while the August 2021 VA examiner noted that the rheumatologist has conferred the blanket diagnosis of psoriatic arthritis and did not specify the joints involved. Therefore, since the notes suggest improvement with treatment of the psoriatic arthritis, it gives weight to the suggestion that all the arthritis complaints are due to the psoriasis. However, as noted above, service connection has not been established for either psoriasis or psoriatic arthritis. Therefore, secondary service connection on this basis must fail. Also of record are VA treatment records that show the above noted diagnoses. However, there are no etiological opinions in these treatment records. In fact, the Board notes there are no other opinions or record demonstrating there is a connection between the clamed disorders and his service on either a direct or secondary basis. See 38 C.F.R. § 3.303, 3.310. The only evidence offered in support of the Veteran's claims that these disorders are either due to service, or due to or aggravated by his service-connected left ankle and left hand with ulnar nerve injury disabilities, are the Veteran's own statements. To this extent, the Board notes that he is competent to describe the symptoms associated with his disorders, such as pain, which is readily observable by laypersons. Indeed, he has done so during his VA examinations and in the course of treatment for the disorders during the appeal. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion as to the etiology of his diagnosed disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). (Continued on the next page) In this regard, the diagnosis and etiology of the orthopedic disorders, such as is the case here, requires medical testing to diagnose and medical expertise to determine the etiology. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."); see Savage v. Gober, 10 Vet. App. 488, 494 (1997) (veteran not competent to provide medical opinion linking present arthritis to in-service fall). Thus, the Veteran's opinions regarding the etiology of his claimed disorders is not competent medical evidence. The Board finds the opinions of the VA examiner to be significantly more probative than the Veteran's lay assertions, where it is based on medical expertise and consideration of the Veteran's medical history. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.