Citation Nr: 21074003 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-19 432 DATE: December 13, 2021 ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a bilateral leg disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a disability manifested by chronic muscle fatigue is denied. FINDINGS OF FACT 1. The Veteran's bilateral knee disability was not incurred in or due to his active duty service. 2. The Veteran's does not have a bilateral leg disability that was incurred in or due to his active duty service. 3. The Veteran's left shoulder disability was not incurred in or due to his active duty service. 4. The Veteran does not have fibromyalgia or chronic fatigue syndrome that was incurred in or due to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a bilateral leg disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for a disability manifested by chronic muscle fatigue have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1974 to October 1976. This matter was previously before the Board in April 2021, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a July 2021 supplemental statement of the case. The Board finds that VA has substantially complied with the April 2021 Board remand. SERVICE CONNECTION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for a bilateral knee disability and a bilateral leg disability The Veteran contends that he suffers from a bilateral knee disability that is etiologically related to his active-duty service. Additionally, the Veteran has also alleged that he suffers from a bilateral leg disability, generally, is also etiologically related to service. At the outset, the Board notes that the Veteran has been diagnosed with degenerative changes in his bilateral knees, right knee strain, left knee meniscal tear, and bursitis of the left knee. See August 2014 and October 2019 VA examination reports. While the Veteran has alleged a leg disability manifested by pain, it is unclear whether The Veteran's service treatment records show that, on enlistment examination in October 1974, he was in good health, with all orthopedic history listed as negative. The Veteran had some complaints regarding his knee while in service. In September 1976, after complaints of bilateral knee pain, the examination was normal apart from some bursitis in the left medial knee. However, the Veteran's separation examination, also in September 1976 lists him as in good health, with normal lower extremities and no other musculoskeletal issues. Overall, the service records provide some evidence against this claim. After separation from service, the record shows the Veteran did not seek care for a knee condition for an extended period of time until approximately March 1999 when he reported several days of right knee pain but exhibited full range of motion and was diagnosed with a strain. Notably, at an earlier September 1992 physical for work, the Veteran was deemed to be in general good health and fit, with no indication of knee issues. Treatment records show the Veteran continuing to report knee issues in 2001 and thereafter with reported increases in symptoms. While the Veteran has occasionally reported an old childhood trauma to the right knee, none of the Veteran's treating physicians has indicated in any way that the Veteran's current knee problems are related to service. A VA examiner examined the Veteran and reviewed the claims file in October 2019. The examiner undertook a very thorough review of the Veteran's service and post-service treatment records. The examiner noted that the Veteran's current lower extremity disabilities consisted of bilateral femorotibial degenerative joint disease/osteoarthritis first noted in October 2001. The examiner also found that he has a meniscal tear first noted in July 2014 magnetic resonance imaging (MRI). The same MRI also showed anterior cruciate ligament mucoid degeneration, however there were no indications of ligament laxity or tear on examination. While the examiner noted that the Veteran has a history of diffuse intermittent myalgias, he found no diagnosed lower leg disability. After review of the Veteran's claims file, the examiner opined that it was less likely than not that the Veteran's current bilateral knee disorders were etiologically related to service. The examiner provided a detailed rationale with ample citations to the record. Of note, the examiner highlighted that degenerative changes in the knee were first noted in October 2001, two and half decades following his separation from service. The examiner found that the Veteran's bilateral knee osteoarthritis/degenerative joint disease is age related. Earlier imaging of the right knee from 1999 showed a normal knee, and a 1992 work related physical also shows a normal orthopedics exam. Moreover, the examiner also highlighted the Veteran's own statements as to onset, such as his reports in 2002 that bilateral knee pain began six years prior. The Board finds the October 2019 VA examiner's opinions to be highly probative, as it was provided after an examination and review of the claims file and contains a rationale supported by the record. Significantly, there is no probative competent medical opinion of record to the contrary. It is important for the Veteran to understand that the most competent and thorough medical findings provide probative evidence against this claim that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his conditions were the result of service, providing a highly clear basis for the opinion. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). Therefore, entitlement to service connection for a bilateral knee disability and for a bilateral leg disability is denied. Entitlement to service connection for a left shoulder disability The Veteran alleges that he suffers from a left shoulder disability that is etiologically related to his active duty service. At the outset, the Board notes that the Veteran has current left shoulder diagnoses. See October 2019 VA examination. The Veteran's service treatment records show that on enlistment in October 1974 he reported being in good health with all orthopedic history listed as negative. In February 1976, a treatment note shows the Veteran complained of one week of left shoulder pain, denied trauma, and was assessed with muscle bruise with stiffness, cause unknown and was given cream and advised to treat with heat. In July 1976, the Veteran complained of weakness in his left arm with exertion. During the encounter, the Veteran also reported, for the first time, that he had prior trauma to the left arm in approximately 1971. On examination, there were no abnormalities noted with a normal range of motion and he was diagnosed with chronic muscle fatigue and was advised to treat with heat and to return if conditions persisted. There is no indication that the Veteran returned. On his separation examination in September 1976, he reported being in good health and the upper extremities and musculoskeletal system were deemed normal. The Veteran underwent a VA examination of his left shoulder in October 2019. The examiner noted various diagnoses of the Veteran's left shoulder over the year, to include left shoulder impingement syndrome, left shoulder rotator tear, left shoulder acromioclavicular joint osteoarthritis and left severe arm strain. With the exception of the left arm strain, the Veteran's conditions were diagnosed in 2007 and thereafter. The Veteran reported that prior to service, in approximately the 11th or 12th grade, he had a left shoulder injury and was provided with a sling. The Veteran reported that his left shoulder became painful in approximately 2004 and that he has sought care since that time. The Veteran also reported that his left shoulder was painful during service, but admitted that it was brief and that it resolved during service. The examiner opined that it was less likely than not that the Veteran's shoulder condition was incurred in or due to his time in service. The examiner explained that the Veteran's current left shoulder disability of left rotator cuff tear with impingement was diagnosed in June 2007. The Veteran's record shows no post-military shoulder complaints until approximately January 2007, a period of over three decades. Imaging in January 2007 showed incidental cystic changes at the base of the left greater tuberosity, which was the probable date of the left rotator cuff tear. The examiner also opined that there is no clear and unmistakable evidence that the Veteran's left shoulder condition pre-existed his active duty service. While the Veteran reported having a left shoulder condition prior to service, the examiner was unable to find any records to substantiate the Veteran's claims. The examiner noted that it was not reported on his entrance history. The Veteran's in-service left shoulder/arm bruise would not be related to an injury from 2 or more years earlier. Based on the overall record the examiner found that it is not clear that he had a pre-existing condition, and, in the alternative, such a condition was not aggravated during service. The Board finds the opinion of the July 2021 VA examiner to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran's current left shoulder disability is a result of service, or was aggravated by service. The Board finds the report to be adequate: The examiner's findings were based on a thorough review of the evidence, including the service treatment records and post-service treatment records. Additionally, the VA examiner provided reasoning that is supported by, and consistent with, the evidence of record. Again, it is important for the Veteran to understand that the most competent and thorough medical findings provide probative evidence against this claim that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his conditions were the result of service, providing a highly clear basis for the opinion. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). Entitlement to service connection for a disability manifested by chronic muscle fatigue The Veteran asserts that he suffers from a disability manifested by chronic muscle fatigue that was incurred in or due to his time in service. At the outset, it is unclear whether the Veteran has a current diagnosis consistent with his reported symptoms. This may simply be a manifestation of the other problems cited above. The Veteran's service treatment records contain no complaints, history, or findings consistent with fibromyalgia, chronic fatigue syndrome or any unspecified chronic disability. The post-service treatment records fail to document a diagnosis or treatment for fibromyalgia, chronic fatigue syndrome or an unidentified disability. Following the April 2021 remand, the Veteran was provided with examinations for fibromyalgia and chronic fatigue syndrome (CFS) in June 2021. The examiner following an examination of the Veteran and a review of the evidence, determined that a diagnosis of fibromyalgia was not indicated as there was no pathology to support said diagnosis. Similarly, the examiner concluded that the Veteran did not meet criteria for chronic fatigue syndrome. Review of the evidentiary record shows that there is no competent or probative evidence showing that the Veteran currently has fibromyalgia, chronic fatigue syndrome or any unidentified chronic disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. §§ 1131 requires existence of present disability for VA compensation purposes). The Board notes the Veteran's statements regarding his in-service symptoms and reports of ongoing manifestations which he is competent to report. However, the Veteran's lay statements must be weighed against the other evidence of record. See Jandreau, supra. More recent post-service treatment records indicate the Veteran has had chronic intermittent pain in numerous joints since service, especially in his knees, legs, and left shoulder. However, as noted earlier in this decision, the Veteran has multiple diagnoses for his lower extremities and a left shoulder rotator cuff tear, and his reported symptoms have known associated diagnoses. To the extent the Veteran complains of pain, symptoms alone, the Board has considered whether the Veteran's claimed symptoms are of such severity that these would be considered a "disability" as used in 38 U.S.C. § 1110. Simply stated, the best evidence in this case provides evidence against the existence of a current "disability" diagnosed as fibromyalgia, chronic fatigue syndrome or a chronic unidentified disability. (Continued on the next page) As no diagnosed fibromyalgia, chronic fatigue syndrome or a chronic unidentified disability is shown at any time during the period on appeal, the Board concludes that the preponderance of the evidence is against the claims, and service connection is denied; the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.