Citation Nr: 21013682 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-07 804 DATE: March 10, 2021 ORDER Entitlement to service connection for degenerative joint disease of the neck is denied. Entitlement to service connection for degenerative joint disease of the back is denied. Entitlement to service connection for degenerative joint disease, left upper arm joint is denied. Entitlement to service connection for degenerative joint disease of the left knee is denied. Entitlement to service connection for degenerative joint disease of the right knee is denied. FINDINGS OF FACT 1. Degenerative joint disease of the neck was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. Degenerative joint disease of the back was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 3. Degenerative joint disease of the left upper arm joint was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 4. Degenerative joint disease of the left knee was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 5. Degenerative joint disease of the right knee was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative joint disease of the neck have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for degenerative joint disease of the back have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for degenerative joint disease of the left upper arm joint have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 4. The criteria for service connection for degenerative joint disease of the left knee have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 5. The criteria for service connection for degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In May 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a videoconference hearing. A transcript of the hearing is of record. The Board remanded the issues on appeal for additional development in July 2018. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection Legal Criteria for Service Connection - General Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Proof of a current disability is a threshold to establishing service-connection for any claimed disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3. In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran is claiming entitlement to service connection for degenerative joint disease of his neck, back, upper left arm joint, left knee, and right knee, having filed his service connection claim in February 2013. In June 2013, the Veteran’s spouse provided a statement where she noted the Veteran’s current deterioration in his mobility. She gave examples of how it is difficult for the Veteran to get out of bed in the morning, and that throughout the day, he has pain in his legs, knees, hips, back, and neck. In January 2014, a co-worker of the Veteran from the same power plant where the Veteran had worked for 41 years until retiring in 2011 also provided a statement where he had heard the Veteran talk about his joint pain. Also in June 2013, the Veteran’s physician provided a statement where he described himself as having treated the Veteran’s family for over 20 years, and that he when he met the Veteran in his mid-40s, that he had noted arthritis on x-rays, and that arthritis at that age was likely to have stemmed from the Veteran’s military service. In his May 2018 videoconference hearing with the undersigned Veterans Law Judge, the Veteran stated he injured those joints, back, and neck while in service and that the residuals of those injuries as manifested by arthritis in those areas continue into the present day. The Veteran discussed in detail his assignment history in Panama’s Canal Zone as a jungle survival instructor, and how the rigors of his duties in the field made him sore. The Veteran also related that he has numbness in his legs and in his back and neck that is treated via TENS unit from his local VA medical treatment provider. VA provided examinations for each of the claimed conditions in July 2019. The same VA physician examiner provided the examinations and opinion for service connection for each of the five claimed disabilities. Because the claimed conditions and their history are similar in diagnosis, pathology, and etiology, the Board will discuss each of the examinations and opinions individually but then summarize its findings and decision together. 1. Entitlement to service connection for degenerative joint disease of the neck This July 2019 examiner diagnosed multilevel degenerative disc disease in the cervical spine area. The examiner noted the Veteran’s statements that his neck had started to hurt in service, and that although he had sought care periodically over the years. The Veteran reported no flare-ups of the cervical spine area, and the examiner described the functional impact as limiting the Veteran’s head to turn left or right. Range of motion was considered abnormal in all directions, but there was no evidence of pain on weight bearing and no objective evidence of localized tenderness or pain on palpation. Muscle strength was normal and there was no guarding or muscle spasm. Reflexes and sensory examination were normal. There was no evidence of radiculopathy or ankylosis. No degenerative joint disease was noted in the x-rays accompanying this examination. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s degenerative disc disease of the neck was incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that there was no evidence in the Veteran’s service treatment records about any neck injury, and there are no medical records since leaving active service in 1970 regarding any neck or cervical spine complaints. The examiner noted the Veteran’s statements about seeing a chiropractor but there was no evidence of such treatment, or any other treatment from service separation to the examination, a span of 49 years. 2. Entitlement to service connection for degenerative joint disease of the back For the back, the VA examiner diagnosed multilevel degenerative disc disease in the lumbar back region. The examiner noted the Veteran’s statements that he fell a number of times during active service through 1970, but never reported to sick call. After service, the Veteran reported he sought medical care but no records could be found, and no x-rays were ever taken prior to this examination. Range of motion measurements were considered abnormal but there was no pain on weight-bearing or any flare-ups. Muscle strength and reflexes were considered normal. X-rays taken as part of this examination indicate moderate intervertebral disc space loss at L5-S1 with mild degenerative changes at L1-L2. There was no spondylosis or ankylosis. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s degenerative disc disease of the back was incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that there was no evidence in the Veteran’s service treatment records about any back injury, and there are no medical records since leaving active service in 1970 regarding any back complaints. The examiner noted the Veteran’s statements about seeing a chiropractor but there was no evidence of such treatment, or any other treatment from service separation to the examination, a span of 49 years. 3. Entitlement to service connection for degenerative joint disease, left upper arm joint The Veteran also received a VA examination in July 2019 for his left shoulder claim. The examiner noted a history of complaints of pain in both shoulders that the Veteran attributed to the rigors of his service in Panama. The examiner continued, diagnosing bilateral shoulder glenohumeral joint osteoarthritis and bilateral acromioclavicular joint osteoarthritis, likely from repetitive use. The examiner noted a rotator cuff condition for the left shoulder. Symptoms of decreased range of motion and stiffness were noted. Functional impact of the left shoulder strain included limitations in lifting heavy objects overhead, and pushing and pulling heavy objects. Muscle strength was five on a scale of five and there was no muscle atrophy and no ankylosis noted. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that while the Veteran complained of shoulder pain during the examination, that no obvious pathology could be observed. There were no service treatment records, to include any exit examination, that indicated there was a chronic shoulder condition. The examiner noted the Veteran’s shoulder symptoms were more likely the result of age and overuse and that no chronic condition had existed since service. The examiner also pointed out that although the Veteran claimed only the left shoulder, that both shoulders showed similar degrees of arthritis and other pathologies, indicating the Veteran’s shoulder disabilities were more likely the result of the natural aging process vice any in-service incident or injury. The examiner noted the Veteran’s statements about getting medical help after service but there was no evidence of such treatment, or any other treatment from service separation to the examination, a span of 49 years. 4. Entitlement to service connection for degenerative joint disease of the left knee 5. Entitlement to service connection for degenerative joint disease of the right knee The Veteran received an examination for his bilateral knees that same day in July 2019. The examiner diagnosed degenerative arthritis in each knee, noting the Veteran’s statements that his knees had hurt during active service. The Veteran could not recall any traumatic incidents involving either knee, and he had never sought treatment for painful knees. Each knee showed abnormal ranges of motion, with some pain on weight-bearing, but no additional loss of range of motion after repetitive testing. Functional loss for each knee was described as the Veteran being unable to work in a kneeling or squatting position. Neither knee had any objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and there was no objective evidence of crepitus. Muscle strength was five on a scale of five for each knee and no ankylosis was found. No recurrent subluxation or lateral instability was found for either knee. The examiner found no evidence of a meniscal condition in either knee. X-rays taken as part of the examination showed degenerative osteoarthritis in each knee, considered moderate in the left knee and mild in the right knee. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s degenerative arthritis of each knee was incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that there was no evidence in the Veteran’s service treatment records about any knee injury, and there are no medical records since leaving active service in 1970 regarding any knee complaints. The examiner noted the Veteran’s statements about getting medical help after service but there was no evidence of such treatment, or any other treatment from service separation to the examination, a span of 49 years. The Board finds the July 2019 VA examination reports and opinions to be of great probative value. Indeed, the examiner considered the Veteran’s contention, the claims file, and clinical medical evidence before providing a negative opinion for each of the five disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner’s negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and were consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board finds the June 2013 buddy statement from the Veteran’s spouse and the January 2014 buddy statement from a friend to be probative as to descriptions of a current disability, but to be not probative when it comes to the etiology of each disability. The Veteran’s spouse did not state how long she had known the Veteran and provided no comment regarding when the disabilities arose. The Veteran’s friend noted the current disability and noted it had started a long time ago but gave no specifics as to any observations other than the Veteran had worked for the same employer at a power plant for 41 years. The Board notes the statement by Dr. M.Z., also in June 2013, but also finds it be of low probative value, in that it makes a conclusory statement without any support of any medical evidence. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to testify about his symptoms relating to his claimed neck, back, left shoulder, and bilateral knee disabilities. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of neck, back, left shoulder, and bilateral knee disabilities. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In addition, the Board finds that the gap in time between the Veteran’s last date of active service, in February 1970, to his initial evaluation by any medical provider regarding his neck, back, left shoulder, and bilateral knee disabilities in July 2019 to be probative of a lack of nexus between the diagnosed current disabilities and active service. The Veteran himself noted during his hearing with the undersigned VLJ and in reporting his history to the VA examiner that there were no records of any treatment for any of the disabilities prior to his claim in February 2013, a 43-year gap. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to service connection for neck, back, left shoulder, and bilateral knee disabilities are not warranted. The Board notes a current diagnosis of the neck, back, left shoulder, and bilateral knee degenerative joint disease disabilities, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran’s contentions, and the Veteran’s post-service statements are noted. However, the final physical of February 1970 is silent for any existing neck, back, left shoulder, and bilateral knee disabilities or related injury at the time of separation from active service, and, and there is no competent evidence to tie the current assertions to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection for each of the five claimed disabilities. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. With regard to presumptive service connection for degenerative arthritis of the neck, back, left shoulder, and bilateral knee disabilities, the weight of evidence shows no chronic symptoms of this condition during active service, no continuous symptoms of the condition since service, and that the conditions did not manifest to a compensable degree within one year of service. As such, presumptive service connection is not warranted. 38 C.F.R. §§ 3.303, 3.309. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed neck, back, left shoulder, and bilateral knee disabilities were not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for neck, back, left shoulder, and bilateral knee disabilities on a direct or presumptive basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.