Citation Nr: 21010109 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-38 429 DATE: February 24, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for left shoulder degenerative disease (arthritis) is denied. FINDINGS OF FACT 1. The Veteran’s service treatment records (STRs) are unremarkable for complaints referable to his left knee and low back. 2. The earliest post-service clinical evidence of a left knee and/or low back disability is not for more than two decades after separation from service. 3. The most probative evidence is against finding that the Veteran has a current left knee, low back disability because of his service. 4. The Veteran is service-connected for residual muscle injury of the left shoulder region; the most probative evidence is against finding that the Veteran has left shoulder degenerative joint disease (arthritis) because of his service injury. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for left shoulder degenerative joint disease are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1980 to October 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A September 2019 Board decision denied, in pertinent part, entitlement to service connection for left knee disability, low back disability, and left shoulder degenerative disease (arthritis). The Veteran appealed the Board’s denial of these issues to the United States Court of Appeals for Veterans Claims (Court). A September 2020 Order of the Court granted the parties’ Joint Motion for Partial Remand (JMPR) vacated the Board’s decision but only as it pertained to entitlement to service connection for left knee disability, low back disability, and left shoulder arthritis, and returned the claim to the Board. The other matters remanded in the Board’s September 2019 decision are still being developed by the RO and have not yet been recertified to the Board. Those matters will be the subject of a later Board decision, if in order. Service Connection The Veteran seeks service connection for a left knee, a low back disability and left shoulder degenerative disease (arthritis). As a preliminary matter, the September 2020 JMPR indicated that the Board was to consider a document that was constructively before the Board but apparently not entered into the Veteran’s claims file prior to the Board decision. Specifically, the parties’ stipulated that the Veteran’s counsel sent a fax to the Board on May 10, 2019 [incorrectly identified as April 10, 2019 in the JMPR] that contained relevant argument and a medical opinion of a private physician, Dr. Ali. The Board has considered this evidence and will address it reasons and bases below. In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has not been shown to have the experience, training, or education necessary to give a probative (competent and credible) opinion regarding the etiologies of his claimed left knee, low back, and left shoulder disabilities. Although lay persons are competent to provide opinions on some medical issues, a lay person is not competent to provide a probative opinion concerning the origins of these claimed disabilities since they are complex, not just simple. He does not have the education and training needed to make a finding regarding the complexities of disabilities of the joints/bones first diagnosed decades after his separation from service. This determination of causation is outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As discussed in further detail below, the preponderance of the evidence is against the claims; thus, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 1. Entitlement to service connection for a left knee disability The Veteran contends that in June 1983, while in service, he fell down a ravine injuring his left ankle, left knee and back. His STRs are unremarkable for a fall down a ravine causing a knee disability. Moreover, the STRs are unremarkable for complaints referable to his knees. He is competent to state that he fell in service and hurt his knee; however, the Board finds that his contention as to chronic knee injury in service is not credible given the record as a whole. The Veteran sought treatment during his service for a variety of complaints that included: eye trouble (November 1980), an upper respiratory infection (February 1981), an upper respiratory infection (April 1981), a headache, tinea pedis (1981), a trapezius strain (September 1981), an ear ache (January 1982), a left ankle injury from playing basketball (April 1982), a shoulder injury (September 1982), urethral discharge (January 1983), a sore throat (March 1983), heel pain (June 1983), a twisted right ankle from playing basketball (August 1983), and an ear infection (September 1983). Thus, if he had injured his left knee, it seems entirely reasonable that he would have sought treatment for it or, at the very least, complained about it especially since he did regarding those numerous other ailments, so had opportunity. The Veteran separated from service in October 1983. His Report of Medical History for separation purposes reflects that he denied having a trick or locked knee. The objective physical portion of that examination was equally unremarkable concerning his left knee. There also are no records within a year of the Veteran’s separation from service noting degenerative changes (arthritis) of his knees. There equally are no records noting complaints of any kind referable to his left knee within a year of his separation from service meaning by October 1984. A September 1994 VA clinical record, more than a decade after separation from service, for the Veteran to be admitted for substance abuse, reflects that he reported that he was generally in good health. He denied any weakness, arthralgia (i.e., joint pain), arthritis, or limitation of range of motion of the musculo-skeleton system. If he had had chronic knee complaints since service, it stands to reason he would have reported this, rather than contrarily expressly denying it. Post-service, the Veteran was employed in manual labor as a construction worker and concrete foreman, as a funeral home worker/manager, in sales, and as a landscaping laborer. The earliest complaint of a left knee disability is not until 2012, almost three decades after separation from service. A 2012 MRI of the knee reflects minimal inner margin fraying, mild tendinopathy, small joint fluid, and low-grade patellar chondromalacia. The diagnosis was left knee pain with suspected meniscus degeneration and chondromalacia patella and possible medial collateral ligament (MCL) strain. A May 2015 correspondence from Dr. A. Ali reflects her opinion that the Veteran’s claimed in-service “traumatic fall” led to his current disabilities of the left knee. She contends that the rigors of military life did not give the Veteran time to heal and more likely than not “set up” the Veteran for developing degenerative changes and continued pain. However, the Veteran did not have complaints of the left knee in service, denied a trick or locked knee when separating from service, had normal lower extremities upon medical evaluation for separation, denied musculoskeletal pain or weakness more than a decade after separating from service, and did not have clinical complaints within two decades of separation from service. Thus, the Board finds that Dr. Ali’s opinion, which is based on an unsupported and less than credible history of a traumatic fall with purported consequent injury and chronic complaints since service, lacks probative value. Any opinion based on an unsupported and less than credible history is undermined. The Board also has reviewed the 2018 VA examination opinion, which notes that the examination was difficult to perform because the Veteran cried out in pain when his knee was touched, and ultimate finding that he did not have a current knee problem. The Board realizes that pain, if it reaches the level of causing functional impairment of earning capacity, may constitute a disability for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, as concerning this particular claim, even assuming arguendo that the Veteran has a current left knee disability, the Board finds that a remand to obtain a clinical nexus opinion is not warranted. A remand for this would serve no useful purpose and merely delay adjudication because the Board finds that there is no competent and credible evidence of a left knee injury in service or even of complaints referable to this knee while in service. Therefore, the examiner necessarily would have to rely on purported events that have not been credibly shown to actually have occurred. See Kowalski v. Nicholson, 19 Vet. App. 171, 179-80 (2005) (Board may disregard medical opinion if found to be based on discredited history provided by veteran); see also Swann v. Brown, 5 Vet. App. 229, 233 (1993) (Board may properly reject medical opinion where it is based on facts contradicted by the record). The Board additionally has reviewed the fax that the Veteran’s counsel sent to the Board on May 10, 2019, which, in regards to the claim for a left knee disability, contains argument from Veteran’s counsel and a new rebuttal opinion from Dr. A. Ali, dated April 2019. The argument from the Veteran’s counsel is repetitive of the opinions contained in Dr A. Ali’s 2019 rebuttal opinion. Dr. A. Ali’s rebuttal opinion contains no new evidence. It addresses the new medical evidence since her 2015 opinion, already considered in the September 2019 Board decision, and provides a new nexus opinion, very similar to the one she provided in her May 2015 opinion. Thus, the Board again finds that Dr. Ali’s opinion, which is based on an unsupported and less than credible history of a traumatic fall with purported consequent injury and chronic complaints since service, lacks probative value. Any opinion based on an unsupported and less than credible history is undermined. As already explained, service connection on a direct-incurrence basis requires medical evidence or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or an injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Here, though, as the element of an in-service incurrence or aggravation of a relevant injury has not been met, an examination and opinion are not warranted, neither is service connection. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The U.S. Court of Appeals for Veterans Claims (Court) has held that VA is not required to provide a medical examination when, as in this case, there is no credible evidence of an event, injury, or disease in service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Moreover, service connection also is not warranted on a presumptive basis because there is no competent and credible indication the Veteran had arthritis in his left knee within a year of his discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). And since no left knee impairment was “noted” in service, and there were occasions both during service and since, at least initially, when he expressly denied any having issues with his left knee, he has not shown continuity of symptomatology since his service under 38 C.F.R. § 3.303 (b) as an alternative means of linking his present-day left knee disability to his service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lastly, secondary connection additionally is not warranted on a secondary basis since there is no competent and credible evidence that a service-connected disability caused or aggravates his current left knee disability. 38 C.F.R. § 3.310 (a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for a left knee disability is denied. 2. Entitlement to service connection for a low back disability As already alluded to, the Veteran also attributes his claimed low back disability to the June 1983 fall down a ravine. He says it was a twenty-foot fall. His STRs are unremarkable for a fall down a ravine causing a back injury. Moreover, his STRs are unremarkable for complaints referable to his back. He is competent to state that he fell in service and hurt his back; however, the Board finds that his contention of a chronic back injury in service is not credible given the record as a whole. As already pointed out, the Veteran sought treatment while in service for a variety of complaints; thus, it seems entirely reasonable that, if he had injured his low back in service, he also would have sought treatment for it or, at the very least, have complained about it, but there is no suggestion that he did. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (VA may use silence in the STRs as evidence contradictory to a veteran’s assertions if the STRs appear to be complete, at least in relevant part, and the injury, disease, or symptoms involved ordinarily would have been recorded had they occurred). See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service, Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran’s statements). The Veteran separated from service in October 1983. His Report of Medical History for separation purposes reflects that he denied recurrent back pain. Moreover, his spine was normal on objective clinical evaluation. There equally are no records within a year of separation meaning by October 1984 noting degenerative changes (arthritis) of the back. As well, there are no records noting complaints of any kind referable to the back. A September 1994 VA clinical record, more than a decade after separation from service, for the Veteran to be admitted for substance abuse, reflects that he reported that he was generally in good health. He denied any weakness, arthralgia, arthritis, or limitation of range of motion of his musculo-skeleton system. The Board finds that, if he had had chronic back complaints since service, it stands to reason he would have reported this, rather than conversely expressly denying it. After service, the Veteran was employed in manual labor as a construction worker and concrete foreman, a funeral home manager, in sales, and as a landscaping laborer. The earliest complaint of a back disability is not until 2012, almost three decades after separation from service. A 2012 MRI of the spine reflects multi-level degenerative changes, disc protrusion, disc extrusion, foraminal disc protrusion, and borderline size of the spine canal (likely congenital). A May 2015 correspondence from Dr. A. Ali reflects her opinion that the Veteran’s back disability is due to an alleged in-service injury that was not allowed to heal owing to the rigors of military life. The Board finds that Dr. Ali’s opinion, which is based on an unsupported and less than credible history of an in-service injury with chronic symptoms in the aftermath, lacks probative value. Not only are the STRs negative for back complaints, but the Veteran denied recurrent back trouble on separation and more than a decade later denied musculo-skeleton pain. Any opinion based on his unsupported and less than credible history lacks probative value because the very basis of the opinion is undermined. The Board additionally has reviewed the fax that the Veteran’s counsel sent to the Board on May 10, 2019, which, in regards to the claim for a low back disability, contains argument from the Veteran’s counsel and a new rebuttal opinion from Dr. A. Ali, dated April 2019. The argument from the Veteran’s counsel is repetitive of the opinions contained in Dr A. Ali’s 2019 rebuttal opinion. Dr. A. Ali’s rebuttal opinion contains no new evidence. It addresses the medical evidence already considered in the September 2019 Board decision, and provides a new nexus opinion, very similar to the one she provided in her May 2015 opinion. Thus, the Board again finds that Dr. Ali’s opinion, which is based on an unsupported and less than credible history of an in-service injury with chronic symptoms in the aftermath, lacks probative value. Any opinion based on an unsupported and less than credible history is undermined. For these reasons and bases, the Board finds that service connection for a low back disability is not warranted. The most probative evidence does not support the notion that a low back injury occurred in service, that there were chronic complaints during service, in the aftermath, that arthritis manifested within one year of separation from service, or that the current low back disability is otherwise related or attributable to the Veteran’s service. 3. Entitlement to service connection for left shoulder degenerative disease (arthritis) is denied. The Veteran has already established entitlement to service connection for residuals of a muscle injury involving his left shoulder based on a stab wound sustained in September 1982 during service. He seeks service connection for arthritis. In finding that service connection for left shoulder degenerative joint disease (arthritis) is not warranted, the Board observes that there are no clinical records noting arthritis in this shoulder during service or within the initial year after his separation from service. A September 1994 VA clinical record, more than a decade after the Veteran's separation from service, shows he denied any weakness, arthralgia, arthritis, or limitation of range of motion of his musculoskeletal system. An April 2014 x-ray of the left shoulder some 20 years later revealed the Veteran had mild degenerative changes of the acromioclavicular (AC) joint. This is nearly 30 years after service before there was any initial indication of degenerative changes in the left shoulder. In May 2015 correspondence, Dr. A. Ali opined that the Veteran's left shoulder disability (which she identified as mild degenerative changes at the AC joint) is due to the rigors of military life, combined with multiple traumatic events and injuries, which did not allow an injury to heal properly. She stated that the repeated trauma set him up for developing degenerative changes and continued pain. In correspondence dated in April 2019, Dr. Ali indicated, in pertinent part, that it is still her opinion that the Veteran’s multiple in-service injuries and trauma, as well as the resulting change in his body mechanics, more likely than not set him up for developing degenerative changes of the shoulder. Contrary to the Dr. Ali’s findings, the Board observes that the STRs do not document that the Veteran had chronic AC joint complaints after his stabbing and consequent receipt of stitches. Moreover, in a May 2017 nexus opinion, a VA physician concluded it is less likely than not that the Veteran's left shoulder AC disability is causally related to his service. This physician explained that the only way that the knife blade from the Veteran's stabbing could have affected both the left shoulder area and the left trapezius would have been by transversing an area that was below the AC joint; therefore, it would have been unlikely that this area was so traumatized so as to result in the Veteran's AC joint degenerative changes found years later. The Board finds that the May 2017 VA opinion is more probative than Dr. Ali's 2015 and 2019 opinions, which are essentially duplicative, since the VA examiner’s opinion reflects a more accurate understanding/discussion of the exact location of the injury in relation to the current disability. The Board is entitled to independently assess the opinions and make a determination as to relative weight to assign to each opinion. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). If the Board finds that a private opinion is less persuasive than an opinion offered by a VA medical examiner, it may attribute more probative weight to the VA medical examiner's opinion, so long as that determination is supported by an adequate statement of reasons or bases for doing so. D'Aires v. Peake, 22 Vet. App. 97, 107-108 (2008). Moreover, there is no competent evidence of record that the service-connected disability (residual muscle injury of the left shoulder region and residual left trapezius scar associated with residual muscle injury of the left shoulder region) aggravates the degenerative joint disease and/or that another incident in service caused or aggravated the Veteran's current disability. In closing, it is noted that in September 2019 the Board remanded the matter of entitlement to a higher rating for service-connected residual muscle injury of the left shoulder region, which is currently evaluated under Diagnostic Code 5301. This was in consideration of the Veteran’s assertion that he has ankylosis in the left shoulder related to his service-connected disability. This increased rating issue remains in appellate status but is not before the Board at this time. For the reasons discussed herein, service connection for left shoulder degenerative joint disease (arthritis) is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Caban, Associate 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.