Citation Nr: 21023564 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-22 738 DATE: April 21, 2021 ORDER Entitlement to service connection for left knee arthritis, to include as due to service-connected disease or injury, is denied. Entitlement to service connection for left ankle arthritis, to include as due to service-connected disease or injury, is denied. Entitlement to service connection for right knee arthritis, to include as due to service-connected disease or injury, is denied. REMANDED Entitlement to service connection for a left shoulder disability, to include as due to service-connected disease or injury, is remanded. FINDINGS OF FACT 1. The weight of the competent and credible evidence is against finding that the Veteran has or has had at any time during the appeal a left knee disability. 2. The weight of the competent and credible evidence is against finding that the Veteran has or has had at any time during the appeal a left ankle disability. 3. The weight of the competent and credible evidence is against finding that the Veteran’s right knee arthritis manifested in service or within one year of service; is not etiologically caused by an in-service injury, event or disease, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis of the left knee is not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2020). 2. The criteria for service connection for arthritis of the left ankle is not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2020). 3. The criteria for service connection for arthritis of the right knee is not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Army from March 1984 to October 1990. This matter once again comes before the Board of Veterans’ Appeals (Board) on appeal from January 2014 and August 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the medical evidence of record indicates that the Veteran has received multiple left shoulder diagnoses, the issue of entitlement to service connection for left shoulder arthritis has been expanded as noted above, consistent with Clemons. Previously the claims were remanded for additional development in October 2019. The prior remand directives have been completed, in part, and will be discussed in greater detail below, and as such, the Board finds there has been substantial compliance with the prior remand directives, except as to the Veteran’s claim for service connection for a left shoulder disability discussed in the remand section, and the claims are again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required 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 or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease 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. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service-connected. 38 C.F.R. § 3.310(b). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Relevant Evidence Service treatment records are associated with the claims file. During his service, the Veteran did not receive treatment for or have complaints of knee pain or left ankle pain. He elected to forego a separation examination in October 1990. The Veteran filed a claim for service connection for arthritis in July 2013. In a November 2013 buddy statement, a fellow service member who roomed with the Veteran in service stated that the Veteran reported being diagnosed with arthritis in his knees. December 2013 private treatment records reflect that the Veteran reported right knee pain. In his February 2014 notice of disagreement, the Veteran stated that he had back problems and arthritis since active duty. He did not specify which joints had arthritis. He alluded to potential radiation exposure from nuclear weapons causing his disabilities but did not offer any evidence in support of that contention. None of the service records contain notes of screening for the Personnel Reliability Program required for those working close to or on nuclear weapons and there are no records of monitored occupational radiation exposure. During July 2014 and August 2014 private treatment, the Veteran complained of right knee and right ankle pain. November 2014 private treatment records reveal that the Veteran’s knees were within normal limits. No pain was reported. The Veteran filed for Social Security Disability (SSA) benefits in June 2015. He stated that he was unable to work because of back pain, right leg sciatica, diabetes and depression. He did not report any knee or ankle pain. SSA records do not reveal any left knee or left ankle pain or arthritis. In a June 2015 SSA statement, the Veteran reported working in a warehouse for ten years. He stated that in 2008, his employer forced three people to do the job of nine and it had a terrible impact on his body. The Veteran stated that six years of intense manual labor caused medical issues. An October 2015 Workers Compensation Claim reflects that the Veteran’s post service warehouse job required him to perform a lot of kneeling and heavy manual labor. In support of his claim, he submitted a letter from a private doctor which stated that, “from the time of his injury, which occurred from July 13, 2006 through May 21, 2014, during the course of his employment, he developed pain in the neck, shoulders, mid back, arms, hands, low back, knee, ankles, and feet, which he attributed to the constant strenuous activities he did as a maintenance worker for Pep Boys.” In support of his SSA benefits application, the Veteran submitted a private medical opinion in July 2017, which stated that the Veteran developed pain to multiple body parts due to his repetitive motion activities at his post-service job and he continued to work and his pain progressively worsened. The Veteran filed a claim for pension in December 2017. The Veteran stated that he had a spine disability, diabetes, mood swings, and high blood pressure. He did not report any knee or ankle issues. The Veteran submitted a private orthopedic record in December 2017 which revealed that the Veteran had been diagnosed with lumbar spine radiculopathy, right hip tendinitis, right ankle sprain, left shoulder impingement and lumbar spine spondylolisthesis. There was no knee or left ankle diagnosis or corresponding symptoms. Upon examination in November 2018, VA treatment records reveal that the Veteran had full range of motion in all of his extremities and the Veteran did not report any knee or ankle pain. The Veteran attended a VA examination for his knees in June 2019. He reported that knee pain began in 1987 and progressed through time. He denied any left knee flare-ups. Range of motion of the left knee was normal without pain. The examiner did not list any reported symptoms or functional impairment attributed to the left knee and determined that the Veteran did not have a left knee disability. Diagnostic testing revealed right knee arthritis. Right knee range of motion testing revealed flexion to 90 degrees and extension to 0 degrees. Pain noted caused functional loss in the right knee. The examiner concluded that the Veteran’s right knee arthritis was less likely than not related to his service, explaining that the Veteran did not have any complaints of or treatment for a right knee condition during active duty. The Veteran also attended a VA examination for his ankles in June 2019. He explained that he did not have a left ankle condition. He denied any left ankle flare-ups. Range of motion of the left ankle was normal without pain. The examiner did not list any reported symptoms or functional impairment attributed to the left ankle and determined that the Veteran did not have a left ankle disability. Additional VA opinions were obtained in December 2020. The VA examiner reiterated that the Veteran did not have left knee or left ankle disabilities. Accordingly, entitlement to service connection was not warranted. The December 2020 VA examiner also determined that it was less likely than not that the Veteran’s right knee arthritis was caused or aggravated by a service-connected disability. She explained that the knee arthritis was likely due to the Veteran’s age and wear and tear. She explained that even if the Veteran’s service-connected right ankle and back conditions caused the Veteran to walk with an altered gait, the diagnostic testing from the June 2019 VA examination reflected mild degenerative changes consistent with age and wear and tear. January 2021 VA treatment records reflect that the Veteran’s knees were within normal limits. Numerous private, SSA, Workers Compensation, and VA medical records are associated with the claims file. None of the records reflect that the Veteran has a left knee or left ankle disability. These records do not contradict the VA examination conclusions. 1. Entitlement to service connection for left knee arthritis 2. Entitlement to service connection for left ankle arthritis The Veteran contends that he is entitled to service connection for left knee arthritis and left ankle arthritis, to include as due to his service-connected disabilities. The weight of the competent and credible evidence is against the Veteran’s claim for service connection for left knee arthritis and left ankle arthritis. While the Veteran believes left knee arthritis and left ankle arthritis are related to service and he is competent to report observable symptoms such as pain, he is not competent to provide a diagnosis or nexus opinion in this case. The record does not reflect that he has the requisite training or expertise to offer a medical opinion diagnosing arthritis, and linking current symptoms, if any, to an in-service injury or service connected disability and as such he is not competent to provide a medical opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and more credible than the lay opinions of record. As to the Veteran’s general contentions of ongoing symptoms and manifestations the Veteran is competent to report his ongoing symptomology. However, the Board assigns low credible weight to the Veteran’s reports because the Veteran had opportunities to report these symptoms numerous times during his ongoing VA and private primary care, follow-up, and treatment, as well as the June 2019 VA examination. The VA examiners in June 2019 and December 2020 determined that the Veteran did not have a left knee or left ankle disability. Thus, the more probative evidence of record indicates the Veteran does not have left knee arthritis or left ankle arthritis and as such service connection is not warranted. The Court has held that the requirement for service connection that a current disability be present 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 even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013) (held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Board finds there is no credible persuasive evidence indicating that the Veteran has any left knee or left ankle disabilities, to include arthritis, as no symptoms are reported. Accordingly, the Board finds that service connection for left knee arthritis and left ankle arthritis is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim for entitlement to service connection for left knee arthritis and left ankle arthritis is denied. 3. Entitlement to service connection for right knee arthritis The Veteran contends that he is entitled to service connection for right knee arthritis due to his service, or as due to his service-connected back and right ankle disabilities. The Veteran is diagnosed with right knee arthritis. See June 2019 VA examination. The question for the Board is whether the Veteran’s current right knee disability began during service or is proximately due to or the result of current service-connected disability. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for right knee arthritis is warranted. Service connection is not warranted as the Veteran’s current right knee arthritis did not begin during service and is not attributable to service. The Veteran’s statements regarding his current symptoms and in-service events are credible. The Veteran reports that his knee pain began in-service and these statements are credible. However, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes the medical evidence is more probative and credible than the lay opinions of record. The Board gives more probative weight to the competent medical evidence, specifically the June 2019 and December 2020 VA examinations which note that the Veteran’s right knee arthritis is likely related to age and wear and tear. The examination findings are supported by the evidence of record, specifically the numerous SSA and Workers Compensation records which connect the Veteran’s right knee pain to his post-service employment which required strenuous manual labor. Further, the Board notes the STRs do not reflect any reported knee pain or injury. The Board has considered the Veteran’s lay statements however, the Board gives more probative weight to the competent medical evidence specifically, the VA examinations. In addition, the Board concludes that, while the Veteran has right knee arthritis, which is a chronic disease under 38 U.S.C. § 1101 (3)/38 C.F.R. § 3.309 (a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Arthritis was not “noted” during service or within one year of separation. See Walker, 708 F.3d 1331. Based on the probative evidence of record the Board finds that the Veteran’s right knee arthritis did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis as he was able to work in a very physically tolling field for many years before reporting any knee symptoms. VA treatment records note the Veteran was not diagnosed with right knee mild arthritis until at the earliest 2019, nearly three decades after service. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. The Board notes the medical evidence is more probative and credible than the lay opinions of record. The Board gives more probative weight to the competent medical evidence, specifically the June 2019 and December 2020 VA examinations which attributed the Veteran’s right knee arthritis to age and wear and tear. The Board has considered the Veteran’s lay statements however, the Board gives more probative weight to the competent medical evidence. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. As to secondary service connection, the Veteran contends that his right knee arthritis is due to his service-connected low back disability or right ankle disability. As noted above the Board finds that the December 2020 VA examination to be more probative and credible than the lay opinions of record. The examiner noted that even if the Veteran’s service-connected disabilities caused the Veteran to walk with an altered gait, the nature of his right knee arthritis was more likely caused by age and wear and tear and less likely caused or aggravated by back or right ankle conditions. The Board finds the VA examination is of high probative value and the Veteran’s statements as to secondary service connection are outweighed by the credible and probative medical evidence of record, which weighs against the claim. As such service connection on a secondary basis is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for right knee arthritis. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 4. Entitlement to service connection for a left shoulder disability The Veteran contends that he is entitled to service connection for a left shoulder disability, to include as due to his service-connected back and right ankle disabilities. The Veteran uses a cane on his left side to aid mobility due to his service-connected disabilities and believes the added pressure and use of the cane has caused or aggravated his current left shoulder conditions. An October 2015 Panel-Qualified Medical Evaluation report states that the Veteran used a cane, primarily in his left hand, due to his back pain. The clinician stated that the Veteran developed left shoulder pain as a compensatory consequence. In support of his SSA benefits application, the Veteran submitted a private medical opinion in July 2017, which stated that the Veteran had acromioclavicular osteoarthritis along with supraspinatus and infraspinatus tendinitis. SSA records also reflect the Veteran had left shoulder bursitis. A December 2020 VA examiner determined that the Veteran’s left shoulder disabilities were less likely than not caused or aggravated by his service-connected disabilities because during the left shoulder symptom onset around 2013, it was not clear if the Veteran walked with an altered gait or used a cane. The examiner also stated that if the cane use caused the left shoulder issues, then it would be likely to cause of left arm joint pains, including the wrist and hand. It is not clear from the examiner’s rationale why the Veteran’s numerous left shoulder disabilities were less likely than not aggravated by the constant use of the cane. The Veteran is right hand dominant but does not appear to have any issues with his right upper extremity. The Veteran’s post-service records do not reflect any left shoulder injuries. While the Board notes the Veteran performed significant manual labor for many years following his service, it is not clear why the Veteran would have developed several left shoulder conditions and no right shoulder conditions, especially considering his right-hand dominance. Additionally, the VA examiner did not comment on the October 2015 Evaluation report as requested in the October 2019 remand directives. Accordingly, an additional opinion is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of any of the Veteran’s left shoulder disabilities. Following a review of the claims file, the examiner is asked to provide an opinion on: (a.) The left shoulder disabilities the Veteran has or has had during the course of the appeal. (b.) Whether it is at least as likely as not (50% or greater probability) that any of the identified left shoulder disabilities were either (i) caused by or (ii) aggravated by his service-connected back condition and/or right ankle condition, to include by any alteration in station or gait associated therewith? In providing this opinion, the examiner must consider the October 2015 Panel-Qualified Medical Evaluation report stating that the Veteran used a cane, primarily in his left hand, due to his back pain, and wherein the clinician stated that the Veteran developed left shoulder pain as a compensatory consequence. 2. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.