Citation Nr: A21020531 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 211118-198658 DATE: December 27, 2021 ORDER Entitlement to service connection for a left shoulder injury is denied. Entitlement to service connection for a right shoulder injury is denied. REMANDED Entitlement to service connection for a left knee injury is remanded. Entitlement to service connection for bilateral feet urticaria is remanded. FINDINGS OF FACT 1. The Veteran's claimed left shoulder disability was not manifested during his service; and the preponderance of the evidence is against a finding any such disability is etiologically related to his service. 2. The Veteran's claimed right shoulder disability was not manifested during his service; and the preponderance of the evidence is against a finding any such disability is etiologically related to his service. CONCLUSIONS OF LAW 1. Service connection for a left shoulder disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. Service connection for a right shoulder disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1954 to August 1957. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2021 rating decision. In a November 2021 VA Form 10182 notice of disagreement (NOD), the Veteran chose the Direct Review track. Therefore, the Board may only consider the evidence of record at the time of issuance of the September 2021 rating decision. During the pendency of the appeal, to include higher level review, the Veteran filed an August 2020 VA Form 20-0995 supplemental claim application. In November 2020 correspondence, VA notified the Veteran that his attempted supplemental claim is premature as a decision on his prior claim was pending adjudication. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, to include arthritis, may be presumed to be service-connected if manifested to a compensable degree within a specified period post service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Under 38 U.S.C. § 5103A(d), an examination or medical opinion is necessary when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence that an event, injury, or disease occurred in service; (3) an indication that the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1., 2. Entitlement to service connection for a left and right shoulder injury are denied. The September 2021 rating decision found new and relevant evidence has been received (reopening the claims of a left and right shoulder injury). The rating decision conceded a qualifying inservice event, injury, or disease (November 18, 1954 inservice diagnosis of degenerative joint disease, multiple due to unknown cause), a present diagnosis of bilateral shoulder degenerative changes, the claimed disabilities of degenerative changes of the bilateral shoulders are a chronic disease which may be presumptively linked to service, the degenerative changes are manifest to a degree of 10 percent or more following service, the Veteran has sufficient service to merit the minimum requirements for presumptive service connection, and his private treatment records note current treatment for the bilateral shoulder disabilities. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(e). Factual Background The Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnoses of a shoulder condition. His May 1954 entrance examination and August 1957 separation examination note a mild osteoarthritic change to his internal articular condyle of the left knee tibia, and his entrance report of medical history notes a torn ligament of the left leg at sixteen years of age. The Veteran received a waiver for his left knee condition prior to service and his military personnel records indicate a notation of a PULHES score of 3 for the lower body (L). His STRs note inservice treatment for urticaria, described as hive attacks, that frequently occur during cold, damp weather and usually disappear within fifteen minutes. See January, February, March 1956, March, April 1957 STRs. In October 1954, he was hospitalized with pain in his knees and diagnosed with myositis, chronic. In November 1954, the Veteran was diagnosed with degenerative joint disease, multiple due to unknown cause. In December 1954, a doctor reviewed the prior x-rays, noted the only arthritis objectively is in the left knee, and determined that a diagnosis of rheumatoid arthritis/osteoarthritis cannot be rendered. In January 1955, the Veteran was treated again for leg pain and swelling. He was hospitalized in February 1955 with a diagnosis of muscular dystrophy, but no organic disease was found. A February 1955 provider noted x-rays are normal and all joints are within the normal range of motion with no painful motion. The provider noted that were no evidence of an orthopedic disease and there was probably no organic basis for the patient's complaints. On March 1969 (skin) examination, the provider noted no present diagnosis of a rash. The provider documented the Veteran's reports that the urticaria occurs on his hands and feet during the cold and damp weather. On September 1977 VA examination, the Veteran reported chronic back pain that radiates to both legs. He related that his rash cleared up. At a January 1978 Board hearing, the Veteran testified to suffering a left knee injury prior to service. He related that he first started having trouble with the left knee again after boot camp described as pain in his back, spine, ankles, and knees. He testified he slipped on a ladder in boot camp, but did not note any problems until he arrived at his first naval assignment. A December 2018 private treatment record noted the Veteran's longstanding history of bilateral shoulder problems, crepitus, pain, difficulty sleeping, numerous cortisone injections, and severe bilateral shoulder pain with restricted motion. Private treatment records note the Veteran's complaints of bilateral shoulder pain, a prescription of medical marijuana for the chronic pain, treatment of injections for the bilateral shoulder pain, and MRIs interpreted to show degenerative changes of the bilateral shoulders. See e.g., December 2018, July, August 2019. The Veteran's October 2019 VA 21-526EZ (Fully Developed Claim Form) alleged that his bilateral shoulder injuries are related to his service as a boatswain's mate in August 1954. Analysis The Veteran's STRs are silent for an August 1954 injury or event, and nor has the Veteran provided an explanation for how the alleged bilateral shoulder injury occurred inservice apart from providing an August 1954 date. The Board notes that while the record does not include a medical opinion in these matters (addressing the possibility of a nexus between the bilateral shoulder disabilities and the Veteran's service, because there is no competent evidence in the record indicating that the bilateral shoulder disabilities might be related to the Veteran's service (disease or in jury therein), development for any advisory medical opinion in the matter is not necessary, as even the generally accepted low threshold standard for when development for a medical opinion is necessary is not met. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in his post service medical records that his bilateral shoulder disabilities were diagnosed inservice, or within one year of service (nor does he allege the onset of arthritis inservice or within one year of service.) Consequently, service connection for a right or left shoulder disability (to include arthritis) on the basis that such disability manifested in service and persisted, or on a chronic disease presumptive basis is not warranted. See § 3.309(a). While noting that bilateral shoulder disabilities are not listed as a chronic disease in § 3.309(a), for which service connection may be established based on continuity, the Board has considered the Veteran's assertion on his claim form that his bilateral shoulder disability is related to his service as a boatswain's mate in August 1954. The Board notes that there is no evidence of a diagnosis of/treatment for a shoulder disability (or arthritis located in either of his shoulders until approximately 61 years following service), and the interim treatment records, do not show a notation of a bilateral shoulder disability or injury (from the claimed inservice event of August 1954 until 2018 as noted in private treatment records). However, there is no competent evidence in the record indicating, or suggesting, that his current right or left shoulder disabilities may be etiologically related to his service, or a related disease of injury therein (as none is shown). Regarding the Veteran's own assertion on his October 2019 VA 21-526EZ that his bilateral shoulder injuries are related to his service as a boatswain's mate, the Board observes that the etiology of a right or left shoulder disability (whether it may be related to a disease or injury in over sixteen years postservice is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran is a layperson, and does not cite to support clinical data, or medical opinion or treatise evidence. Considering the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. There is no probative evidence that his current right or left shoulder may be related to a disease or injury in service. Accordingly, the appeal in this matter must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left knee injury is remanded. The September 2021 rating decision found new and relevant evidence has been received (reopening the claim for a left knee injury). The rating decision conceded a qualifying inservice event, injury, or disease (November 18, 1954 inservice diagnosis of degenerative joint disease, multiple due to unknown cause), a separation examination noted osteoarthritic changes in the lateral articular condyle of the tibia, the claimed disability of degenerative changes to the left knee is a chronic disease which may be presumptively linked to service, and the Veteran has sufficient service to merit the minimum requirements for presumptive service connection. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(e). As discussed above, the Veteran's left knee arthritis was noted on his entrance examination, STRs document the Veteran's reports of left knee pain inservice, and he claims a present left knee disability. Notably, VA previously ordered development in this matter to obtain an adequate VA (orthopedic) examination to determine the etiology of the Veteran's left knee disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.) The record does not contain a medical opinion addressing whether the Veteran's left knee disability clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service illness, event, or injury during service. Therefore, remand is necessary to obtain an adequate VA examination and medical opinion regarding the etiology of the Veteran's left knee disability. 2. Entitlement to service connection for bilateral feet urticaria is remanded. The September 2021 rating decision found new and relevant evidence has been received, thus reopening the claims of bilateral feet urticaria. The rating decision conceded a qualifying inservice event, injury, or disease (urticaria treated on March 19, 1957 and April 22, 1957). The Board is bound by this favorable finding. 38 C.F.R. § 3.104(e). As discussed above, the Veteran STRs indicate several diagnoses of rashes/urticaria inservice and his lay statements inservice reporting onset of bilateral feet urticaria around late 1955. VA previously ordered development in this matter to obtain an adequate VA (skin) examination to determine the etiology of the Veteran's bilateral feet urticaria disability. On a March 1969 skin examination, the provider found no diagnosis of a rash and noted the Veteran's reports that the urticaria occurs on his hands and feet during cold and damp weather. As the Veteran has not been afforded a VA examination during the pendency of the present claim (last examination took place in 1969 and the Veteran alleged that examination did not occur under the cold/damp conditions required to exhibit his urticaria/rashes), remand is necessary for a medical examination of the Veteran to determine whether a present disability exists during the present claim period. To the extent possible, the medical examination should be scheduled for a time of year that typically presents with cold weather. The matters are REMANDED for the following action: 1. Arrange for the Veteran's claims file to be forwarded to an appropriate VA clinician with expertise in orthopedics to schedule a medical examination and a medical advisory opinion regarding the likely etiology of his left knee disability. The examiner should provide opinions that respond to the following: (a.) Identify the likely etiology for the Veteran's claimed left knee disability. [If left knee arthritis is not diagnosed, reconcile the finding with the notations in the STRs noting diagnoses of left knee arthritis on the entrance examination, a December 1954 STR, and on his separation examination.] (b.) Is there clear and unmistakable (obvious or manifest, undebatable) medical evidence to demonstrate that a left knee disability existed prior to the Veteran's entrance into service? The examiner should direct their attention to the preservice report of medical history, entrance examination, and the Veteran's testimony at the January 1978 Board hearing. (c.) If a left knee disability clearly and unmistakably preexisted the Veteran's active service, is there clear and unmistakable evidence that the disability was not aggravated beyond its natural progression during active service? (d.) If a left knee disability is not found to have clearly and unmistakably preexisted service, is it at least as likely as not (50 percent or greater probability) that the condition had its onset in service or is otherwise etiologically related to his active duty service? 2. Arrange for the Veteran's claims file to be forwarded to an appropriate VA clinician with expertise in dermatology to schedule a medical examination and a medical advisory opinion regarding the likely etiology of his bilateral feet urticaria. To the extent possible, attempt to schedule the examination during cold/damp weather as the Veteran noted these conditions are necessary to exhibit his claimed skin condition (urticaria). The examiner should provide an opinion that responds to the following: (a.) Identify the likely etiology for the Veteran's claimed bilateral feet urticaria. Specifically, is it at least as likely as not (50 percent or greater probability) that the condition had its onset in service or is otherwise etiologically related to his active duty service? All opinions must include rationale that cites to supporting factual data and/or medical literature, as deemed appropriate. If an opinion sought cannot be provided without resort to mere speculation, there must be explanation why that is so. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lederman, Michael 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.