Citation Nr: 21011424 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-08 678 DATE: March 1, 2021 ORDER Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a left knee disorder is denied. FINDING OF FACT The preponderance of the evidence shows that neck, right shoulder, and left knee disorders were not present in service or until many years thereafter, are not caused by an injury while serving with a Reserve Component, and they are not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for neck, right shoulder, and left knee disorders have not been met. 38 U.S.C. §§ 101, 106, 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from June 1963 to June 1967 which service included service in the Republic of Vietnam. The Veteran also had service with a Reserve Component from March 1978 to December 1994. In November 2016, the Veteran testified at a hearing before a Veterans’ Law Judge that has since retired. A copy of the hearing transcript has been associated with the claims file and reviewed by the undersigned. In January 2021, the Veteran notified the Board of Veterans’ Appeal (Board) that he did not want another personal hearing. In September 2017, the Board remanded the appeal. In a January 2019 rating decision, the regional office (RO) thereafter granted the Veteran’s claims of service connection for right and left leg right ankle disability, erectile dysfunction, a back disability, right and left leg femoral nerve disabilities, and special monthly compensation. Therefore, the Board finds that these service connection claims are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO’s award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran’s notice of disagreement on such issue). Lastly, the Board notes that additional medical records were added to the claims file after the RO issued the January 2019 supplemental statement of the case (SSOC). However, the Board finds that it need not further delay adjudication of the appeal to obtain a waiver of agency of original jurisdiction (AOJ) review of the medical records or Remand for AOJ review because they are not pertinent. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The Board finds that the medical records are not pertinent because none of them establishing a relationship between any of the claimed disorders and military service but instead just continue to document the Veteran’s periodic post-service complaints, diagnoses, or treatment for neck, right shoulder, and/or left knee disorders may years after his last period of service and these diagnoses were known at the time the AOJ issued the January 2019 SSOC. Post-Remand Compliance Next, the Board finds that the post-Remand development complied with the September 2017 Remand. The Board has reached this conclusion because the record shows that the Veteran was provided VA examinations in May 2018 and those examiners provided diagnoses and opinions based on the record and controlling scientific and medical evidence as to the etiology of the neck, right shoulder, and left knee disorders taking into account, among other things, the in-service records and the post-service records as well as the Veteran’s lay claims regarding observable symptomatology and the Reserve Component records documenting the October 1986 motor vehicle accident where he was struck by a car while on inactive duty for training with complaints and treatment for back and left knee pain as well as a left knee abrasion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). The Board also finds that that the post-Remand development complied with the September 2017 Remand because while the appeal was in Remand status the RO obtained and associated with the record all available and identified outstanding records including from Dr. Michal Koniarczyk. Id. The Service Connection Claims The Veteran claims, in substance, that his current neck, right shoulder, and left knee disorders are due to his military service to include as a result of an October 1986 motor vehicle accident on inactive duty for training more than 30 years ago. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the record shows the Veteran being diagnosed with neck arthritis, right shoulder impingement syndrome, and a left knee meniscal tear and degenerative joint disease. See, e.g., VA examinations dated in May 2018. Next, the Board notes that service medical records include a private hospital’s emergency room records and two service sick slips documenting the Veteran be struck by a car while on INACDUTRA in October 1986 and his complaints and treatment for back and left knee pain as well as for a left knee abrasion. The Boards also finds that the Veteran is competent to report on the events he experienced while on active duty like being in a motor vehicle accident and to report on manifestations of his disabilities, such as (for example) pain and lost motion. See Davidson, supra. However, active duty service treatment records, including the June 1967 separation examination, are negative for injuries, complaints, treatment for symptoms, and/or a diagnosis of neck, right shoulder, and left knee disorders. In fact, while at the June 1967 separation examination the Veteran reported a history of swollen or painful joints, he denied having a history of broken bones, arthritis, bone, joint or other deformity, lameness, painful or trick shoulder, trick or locked knee. It is important for the Veteran to understand that at this point, it is the Veteran himself that is providing evidence against his own claims. Moreover, when examined it was opined that his lower and upper extremities as well as his spine were normal despite the history of swollen or painful joints. This medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Similarly, Reserve Component medical records are negative for injuries, complaints, treatment for symptoms, and/or a diagnosis of neck and right shoulder disorders. Moreover, as to the left knee, while the Reserve Component medical records document the Veteran’s being struck by a car while on INACDUTRA in October 1986 and his complaints and treatment for back pain as well as left knee pain and a abrasion, the Board notes that these records are negative for diagnosing a left knee disorder except for the abrasion. In fact, it was noted that the left knee had full range of motion and the left knee X-ray did not show a fracture or any abnormality. Given this record, the Board finds as the examiner who treated the Veteran in October 1986 following the motor vehicle accident must have found, that the most probative evidence of record shows that any problem the Veteran may have had with his left knee disorder due to the October 1986 motor vehicle accident (i.e., left knee pain and an abrasion) was, at best, transient in nature and did not cause a chronic left knee disorder. See Owens, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not develop neck, right shoulder, and left knee disorders due to a disease or injury while on active duty or a neck, right shoulder, and left knee disorders due to an injury while serving with a Reserve Component despite the October 1986 motor vehicle accident. 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(a); Colvin, supra. In this regard, the Board must note that as the June 1967 separation examination shows that even the Veteran did not think he had neck, right shoulder, and left knee disorders when he separated from active duty in 1967 and the hospital records from the October 1986 motor vehicle accident likewise show that he did not have a chronic left knee disorder given the normal range of motion and normal X-ray. See Owens, supra. As to service connection for neck, right shoulder, and left knee disorders based on the presumptions found at 38 C.F.R. § 3.309(a), the record does not show that arthritis in any of these joints manifest in the first year following his separation from a period of active duty service. Therefore, the Board finds that these presumptions do not help the Veteran establish service connection for neck, right shoulder, and left knee disorders. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. Next, the Board will consider whether the Veteran is entitled to service connection for neck, right shoulder, and left knee disorders due to continuity of symptomatology under 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). In this regard, and as noted above, at the June 1967 separation examination, the Veteran denied having a history of broken bones, arthritis, bone, joint or other deformity, lameness, painful or trick shoulder, trick or locked knee and the examiner opined his lower and upper extremities as well as his spine examinations were normal when he separated from this period of active duty despite the history of swollen or painful joints. See Colvin, supra. Likewise, and more important than the above, the post-service record is negative for complaints, diagnoses, or treatment for a neck disorder until 2004 (see Dr. Anil Patel treatment records dated in January 2004; neck X-ray dated in July 2004), a right shoulder disorder until 2013 (see Dr. Koniarczyk treatment record dated in December 2016), and a left knee disorder until 2000 (see Dr. Patel treatment records dated in March 2000 and April 2000); at least 33 years after his 1967 separation from active duty, at least 4 years after his motor vehicle accident in 1986, and at least 6 years after his last period of Reserve Component service in 1994. Id. While the Board is certain that the Veteran believes that his neck, right shoulder, and left knee disorders started while on active duty in 1967 (i.e., 55 years ago) and/or since the since the motor vehicle accident on INACDUTRA in 1986 (i.e., 35 years ago) and continued to the current time, the Board nonetheless finds such claims incredulous given the fact that problems with the neck do not appear in the record until 2004, problems with the right shoulder do not appear in the record until 2013, and problems with the left knee disorder do not appear in the record until 2000; at least 33 years after his 1967 separation from active duty and 6 years after his last period of Reserve Component service ended in 1994. Id. The Veteran’s statements and recollections of events from so many years ago are simply not accurate based on the evidence, including the Veteran’s own prior statements (as noted above). At this point, the Board finds that the service medical records, Reserve Component examinations, and the post-active duty medical records provide the most probative evidence of record and it is against finding continuity of symptomatology. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with neck, right shoulder, and left knee disorders in and since his 1967 separation from his first period of active duty nor since the October 1986 motor vehicle accident while serving with his Reserve Component decades ago despite the claims to the contrary. See 38 U.S.C. § 101, 106, 1110, 1131; 38 C.F.R. § 3.303(b). Furthermore, the Board finds that the most probative evidence of record shows that the Veteran’s post-service neck, right shoulder, and left knee disorders are not due to his military service. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the May 2018 VA examiners opined that his neck, right shoulder, and left knee disorders are not due to his military service. Moreover, the Board finds these opinions the most probative evidence of record because they were provided after a review of the record on appeal and an examination of the Veteran as well as because they are supported by ciation to evidence found in the record. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). The Board also finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused the current neck, right shoulder, and left knee disorders). See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for neck, right shoulder, and left knee disorders. 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.