Citation Nr: 21007675 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-09 333 DATE: February 10, 2021 ORDER New and material evidence has been submitted to reopen claims of service connection of a right shoulder disability, right knee disability, left knee disability; the claims are reopened. Entitlement to service connection of a right knee disability, diagnosed as a degenerative joint disease, is granted. Entitlement to service connection of a left knee disability, diagnosed as degenerative joint disease, is granted. Entitlement to service connection of a right shoulder disability, diagnosed as right shoulder arthritis, is denied. Entitlement to service connection of a right shoulder disability, claimed as a fracture of the clavicle, is denied. Entitlement to service connection of a lumbosacral spine disability is denied. Entitlement to service connection of asthma is denied. FINDINGS OF FACT 1. New and material evidence has been associated with the claims file sufficient to reopen previously denied and final claims of service connection of a right shoulder and bilateral knee disabilities. 2. The Veteran’s degenerative joint disease/osteoarthritis of the right knee is at least as likely as not related to his in-service knee injuries. 3. The Veteran’s degenerative joint disease/osteoarthritis of the left knee is at least as likely as not related to his in-service knee injuries. 4. The Veteran’s present right shoulder arthritis is less likely than not related to his documented in-service shoulder injury. 5. The Veteran does not have a present right clavicle injury or disability. 6. The Veteran does not have a presently diagnosed lumbosacral spine disability; his low back symptoms are less likely than not related to his in-service lumbar strain. 7. The Veteran’s asthma, which clearly and unmistakably preexisted service, did not increase in severity during active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the previously denied and final claims of service connection for a right shoulder disability and right and left knee disabilities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for right knee degenerative joint disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left knee degenerative joint disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right shoulder disability, diagnosed as arthritis, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right shoulder disability, claimed as a fracture of the clavicle, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a lumbosacral spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection of asthma are not met. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304 (b), 3.306(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to December 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A transcript of that hearing is of record. New and Material Evidence If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (West 2014); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); 38 C.F.R. § 3.156 (2016). Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7104(b) (West 2014). The Board is under the statutory obligation to conduct a de novo review of the new and material evidence issue. Butler v. Brown, 4 Vet. App. 167, 171 (1996). Under 38 C.F.R. § 3.104 (a), a decision of the rating agency shall be final and binding as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104. An unappealed decision by the RO is final one year from the date notification of the determination is mailed to the claimant. 38 C.F.R. §§ 20.302, 20.1103 (2016). In general terms, “new” evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. “Material” evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156 (a) (2016). The United States Court of Appeals for the Federal Circuit (Federal Court) has indicated that evidence may be considered new and material if it contributes, “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 115 F. 3d. 1356, 1363 (Fed. Cir. 1998). 1. Whether new and material evidence has been submitted to reopen a claim of service connection of a right shoulder disability 2. Whether new and material evidence has been submitted to reopen a claim of service connection of a right knee disability 3. Whether new and material evidence has been submitted to reopen a claim of service connection of a left knee disability The Veteran’s prior right shoulder claim was denied in a November 2007 rating decision. The Veteran’s prior bilateral knee claims were denied in November 2007 and March 2011 rating decisions. The Veteran did not appeal these denials and they became final. Since the time of the most recent denials, VA has afforded the Veteran medical examinations of his right shoulder and bilateral knees, and obtained medical opinions regarding the etiology thereof. This evidence is new in that it was not of record at the time of the prior denials. It is material in that it gives rise to a more complete picture of the circumstances surrounding the origin of the Veteran’s disability. As such, these claims are reopened. To this limited extent, the appeals are granted. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection 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 nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Regardless of whether or not the claimed condition is listed as a chronic conditions, continuity of symptomatology is a factor to be considered in adjudicating any claim. Service connection may also be granted for a condition which clearly and unmistakably preexisted service, where there is a finding that the disability increased during service, and that increase was not due to the natural progression of the disease. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304 (b), 3.306(a). 4. Entitlement to service connection of a right knee disability, diagnosed as a degenerative joint disease 5. Entitlement to service connection of a left knee disability, diagnosed as a degenerative joint disease The Veteran seeks service connection of right and left knee disabilities, diagnosed as meniscal tear with osteoarthritis. The Board finds that, affording the Veteran the benefit of the doubt, the claims should be granted. As an initial matter, the Board recognizes a present right and left knee disability. Likewise, a review of the Veteran’s service treatment records reveals multiple complaints of pain and injuries to the Veteran’s bilateral knees throughout his period of active service (no knee disability or issue was noted upon entrance). Therefore, the question before the Board is whether or not the Veteran’s bilateral knee disabilities are etiologically related to his in-service knee symptoms and injuries. Of record are two VA medical opinions. In October 2010, a VA examiner conducted an examination and review of the Veteran’s medical history. The examiner then stated that the Veteran did have knee injuries while he was in service. However, while they seemed to have improved over the years, he continued to have pain to the present. After service he also gained a significant amount of weight. Therefore, the present knee disabilities were likely 20 percent due to his injuries during active service, with 80 percent additional disability due to his post-service weight gain and occupational use. In August 2016, a VA examiner also conducted an examination and review of the medical record and concluded that the present disability was less likely than not due to treatment for bilateral knee injuries during service. In support of this, the examiner noted that the Veteran did not report knee issues on his separation examination in 1988, and that there was no evidence of knee issues between separation and his initial claim of service connection for a bilateral knee disability in 2006. The objective record showed issues with the knees 18 years following separation from service, with significant weight gain following service, it was also noted that the Veteran was diagnosed with meniscal tears following a motor vehicle accident in 2009. Due to the Veteran’s obesity and post-service employment with FedEx (also an aggravating factor), the examiner was unable to give a 50/50 probability regarding the etiology Veteran’s bilateral knee disabilities. Also for consideration is the Veteran’s own testimony before the undersigned regarding ongoing knee symptomatology since service. Although this evidence is not documented between 1988 and 2006 in the medical record, the Veteran is competent to report observable knee pain between separation and active service. He has not given any reason to find his testimony less than credible with regard to this factor. Looking at the evidence as a whole, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s degenerative joint disease is related to his in-service knee injuries. The Veteran clearly led an active life during active service, playing both tackle football and basketball, resulting in multiple documented knee injuries. He has testified that he continued to have pain in his knees from service to the present. Further, the 2010 examiner found that, although he did gain a significant amount of weight following service, which admittedly did contribute significantly to the severity of the present disability, at least 20 percent of the disability was caused by his in-service knee injuries. There is no percentage requirement for a disability to become service-connected, it merely need to be etiologically linked to an in-service incident or injury. Indeed, it is reasonable for a disability which was initially caused by an in-service injury to become significantly worse due to post-service factors, but this does not negate the fact that it was initially caused by service. Therefore, the Board finds this to be a positive nexus opinion. This opinion was rendered by a medical specialist in contemplation of the Veteran’s complete medical history, to include his post-service medical record and lay statements. Therefore, the Board finds it particularly persuasive. While the 2016 examiner found in the negative, the Board finds the opinion no more persuasive than the 2010 opinion. Indeed, the 2016 opinion focuses significantly on post-service injuries to the knees, particularly a 2009 automobile accident in determining that the present disability is not related to service. However, that opinion also relied significantly on post-service injuries, and did not address the Veteran’s competent and credible assertions of symptomatology since service. Ultimately, the Board has reviewed the evidence and finds that it is at least in equipoise as to whether or not the Veteran’s present degenerative joint disease is related to active service. As such, the Board finds that the claims for service connection of degenerative joint disease of the bilateral knees should be granted. In reaching this conclusion, the Board notes that the evidence suggests that other knee disabilities have been diagnosed, particularly meniscal tears, which have been attributed to a post-service automobile accident, and therefore, this grant is limited to the degenerative joint disease or osteoarthritis. 6. Entitlement to service connection of a right shoulder disability, diagnosed as right shoulder arthritis The Veteran seeks service connection of a right shoulder disability. The Board finds that the claim should be denied. As an initial matter, the Board recognizes a diagnosis of right shoulder osteoarthritis. The Veteran’s service treatment records also indicate a shoulder injury in March 1984, without a fracture. Although an April 1985 record indicated a deformity of the lateral aspect of the right clavicle which could be attributed to a healed fracture, but was more likely a healed post-traumatic osteolysis. In August 1985, he again reported a sore shoulder, which he attributed to his prior shoulder injury the year before. Therefore, the question before the Board is whether or not the Veteran’s present shoulder condition is related to his 1984 shoulder injury. Upon separation, his shoulder injury was noted as treated with physical therapy and well recovered. A review of the Veteran’s VA treatment records indicate that in December 2006, his extremities were found to be normal. There are no private treatment records for a shoulder condition. The Veteran was afforded a VA examination in July 2016 to assess his shoulder claim. A single diagnosis of acromioclavicular (A/C) joint osteoarthritis was given. The Veteran gave a detailed medical and work history to the examiner, to include reporting the in-service shoulder injury, which he stated resulted in popping and grinding with certain movements since that time. He denied pain in the shoulder after the in-service incident, and asserted that he had full range of motion at that time. The examiner reviewed the complete claims file and concluded that the present shoulder disability was less likely than not incurred in or caused by the Veteran’s in-service right shoulder injury. In support of this conclusion, the examiner noted that in September 1988, the shoulder was considered to be healed with good results, as well as the objective record that the Veteran had no symptoms when he left service. There was no evidence of any shoulder issues or treatment until many years after separation from active service. Between the Veteran’s initial claim in 2006 and second claim in 2016, there was virtually no record of shoulder issues in the record. Further, given the evidence as observed in the present examination, over 28 years after separation from service, there simply existed inadequate evidence to support a nexus between the present A/C joint arthritis, and the single incident during active service. The Board finds this opinion persuasive. It was rendered by a medical specialist in contemplation of the complete medical record, to include the Veteran’s competent and credible complaints of symptoms from the time of service. The Board has reviewed the claims file, but finds no medical evidence to contradict this opinion. The Board does recognize the Veteran’s own assertions that his shoulder disability was caused by the in-service incident in his service treatment records. The Board recognizes that while lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his shoulder arthritis, especially in light of the VA specialist’s conclusions to the contrary and the fact that the evidence shows that his in-service shoulder injury had healed prior to his separation without any objective evidence of continuity of symptoms until many years later. See id. In sum, the Board finds that the it is less likely than not that the Veteran’s present A/C joint osteoarthritis is less likely than not related to his in-service shoulder injury. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 7. Entitlement to service connection of a right shoulder disability, claimed as a fracture of the clavicle During his hearing, the Veteran’s representative argued that a separate shoulder disability, namely a fracture of the clavicle, should also be granted service connection as part and parcel of the shoulder claim. Here, the Board notes that a claim for service connection includes any and all possible disabilities which may be reasonably encompassed by the Veteran’s description of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board will look as the clavicle fracture as separate from the arthritis of the shoulder. Regardless, the Board finds that the claim should be denied. Initially, the Board finds that there is no evidence of record showing a present clavicle disability or condition. The only present right shoulder condition noted in the record is the arthritis of the AC joint. Therefore, the claim fails the primary criterion of service connection. Second, the Board has reviewed the Veteran’s service treatment records and finds no evidence of a clavicle fracture. The Board does acknowledge a single April 1985 record which indicated a deformity of the lateral aspect of the right clavicle which could be attributed to a healed fracture, but was more likely a healed post-traumatic osteolysis. There is no other finding of a clavicle issue, particularly a fracture, and it was not noted upon separation from active service. Even presuming that the April 1985 notation shows a possible clavicle fracture in service, which the Board again notes was more likely attributed to a different type of injury, the Veteran does not have a present clavicle injury or disability which the Board could grant service connection. As the claim fails the primary criterion of service connection, the Board must deny that claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 8. Entitlement to service connection of a lumbosacral spine disability The Veteran seeks service connection of a lumbosacral spine disability. The Board finds that the claim should be denied. As an initial matter, the Board recognizes that the Veteran was diagnosed with a lumbosacral strain in 1988, as documented in his service treatment records. However, while this satisfies the second criterion of service connection, the Board finds that the claim fails on the first and third criteria of service connection. Initially, the Board notes that there is no presently diagnosed low back disability. The Veteran was afforded a VA examination in 2016. Although the examiner noted the lumbosacral strain, as diagnosed in 1988, there is no evidence of any presently diagnosed pathology in the low back. The Veteran reported that he had thrown his back out in 2015 while mowing the lawn, and that his back had improved after that incident. He reported a flare of back pain every 3 to 4 months, resulting in trouble sitting and walking comfortably. The flare will last several days at a time before resolving. Upon examination, no functional loss was found. The examiner could not speculate objectively regarding whether any flare-ups would significantly limit functional ability, although the examination was neither consistent nor inconsistent with the Veteran’s reports of symptoms during a flare. There was no evidence of guarding. Muscle spasm and localized tenderness did not result in any abnormal gait or spinal contour. The Veteran used a cane to ambulate, although he attributed that to his knees, and denied needing any assistive devices due to his back. Thus, the examiner concluded that a present disability could not be diagnosed. The Board does note that, even without a present diagnosis, pain alone may constitute a disability. However, that pain must rise to a level where it causes compensable functional loss. In this regard, the Board finds that the evidence of record does not support such a finding. Although the Veteran has flares of pain, which make walking and sitting uncomfortable, there is no indication that it results in a compensable level of functional loss (i.e.-significant loss of range of motion). Rather, the flares reported by the Veteran appear to be fleeting in nature and resolve after a short while. Therefore, the Board finds that there is no presently diagnosed low back disability to grant service connection. Further, even presuming that the present flares of low back pain could constitute a disability, which the Board does not find is the case, the examiner concluded that it was less likely than not that those flares are related to the 1988 in-service strain. Here, the examiner reviewed the entire record, to include the Veteran’s competent and credible reports of symptoms between separation and the present, and opined against such a nexus. The examiner explained that a muscle strain, as the Veteran experienced in service, is often a self-limiting injury which resolves with conservative treatment. On review, the Veteran had no other objective medical records of treatment or diagnosis of a lumbar spine condition since he left active service in 1988. Since separation, the Veteran has worked in a variety of physically intense occupations, including as a corrections officer, railroad conductor, and a freight processor for FedEx. Such physical employments also likely contributed to his current back complaints. The Board finds this examination report and opinion to be persuasive. They were rendered by a medical specialist following a physical examination and complete review of the medical record. The Board has reviewed the claims file, but finds no medical evidence which would contradict the VA examiner’s conclusions regarding the lack of a diagnosis and nexus to service. The Board does acknowledge the Veteran’s own firmly held belief that his present low back symptoms are attributable to active service, but finds it to be unpersuasive in this instance. Again, the Board recognizes that while lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau, supra. In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make a diagnosis of a present low back disability, or an etiological conclusion regarding the cause of his present low back symptoms, especially in light of the VA examiner’s conclusions to the contrary. See id. In sum, the Board finds that the Veteran does not have a presently diagnosed low back disability. Neither is there any evidence of a causal nexus between any present low back symptoms and his 1988 lumbar strain. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 9. Entitlement to service connection of asthma The Veteran seeks service connection of asthma. The Board finds that the claim should be denied. As an initial matter, the record reflects that the Veteran’s asthma preexisted service, and in his hearing before the undersigned, the Veteran testified to the same. As such, the Board finds that the disability clearly and unmistakable preexisted service. Therefore, the question before the Board is whether or not his asthma increased in severity during active service, and whether that increase was due to any incident of service, as opposed to the natural progression of the disease. For his part, the Veteran testified before the undersigned that he has always used a rescue inhaler, but that he has not presently used it for some time. He stated that during active service, he noticed a flare-up of his asthma, generally related to having a cold or other lung issue such as pneumonia. When questioned as to whether his asthma worsened during service, he initial stated that he “kind of [felt] it did,” before stating that he was not really sure if it got worse. When pressed as to how it worsened during service, the Veteran stated, “I would have to say, probably about the same from childhood, really. To be honest.” The Veteran was afforded a VA examination in connection with his claim in 2016. After a physical examination of the Veteran, and a review of the Veteran’s complete medical history, to include the Veteran’s own lay assertions regarding the history of his asthma, the examiner opined that the Veteran’s asthma was less likely than no aggravated beyond natural progression by active service. In support of this, the examiner noted that the Veteran had a two year period without any acute asthma treatment prior to discharge, and that his separation examination in 1988 revealed no complaint or symptoms of asthma. The Veteran’s service treatment records were consistent with typical clinical, natural pattern of childhood asthma and clinically did not show aggravation during service. By the Veteran’s own assertions, he had similar symptoms at present as he had during childhood, which also spoke to a lack of aggravation. At present, the Veteran could not remember the last time he had an asthma attack, and he did not have or use an inhaler at present. As such, his symptoms were presently stable, and he does not have asthma aggravated beyond that which existed prior to service. The Board finds this opinion persuasive. It was rendered by a medical specialist in contemplation of the complete medical record, to include the Veteran’s own assertions regarding the onset and progress of his condition. The Board has reviewed the evidence of record but finds no medical evidence to contradict this opinion. Indeed, the Veteran himself acknowledged in the hearing before the undersigned that his asthma had not worsened since childhood, contradicting the claim itself. In sum, the Board finds that the Veteran’s asthma, which clearly and unmistakably preexisted service, did not worsen during active service. As such, service connection of asthma is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel