Citation Nr: 21025482 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 13-09 004A DATE: April 28, 2021 ORDER Entitlement to service connection for a left shoulder disorder is denied. REMANDED Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to February 21, 2020, for the left knee sprain is remanded. Entitlement to an initial disability rating in excess of 40 percent since February 21, 2020, for the left knee sprain is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the left shoulder disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 2008 to November 2008. These issues are on appeal from January 2010 and August 2020 rating decisions. In March 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans’ Appeals (Board) hearing. In December 2017, January 2020, and December 2020, the Board remanded these issues to the Agency of Original Jurisdiction (AOJ) for further development. The issues of entitlement to service connection for a lumbar spine disorder and a right knee disorder were remanded by the Board in December 2020. Upon remand, these issues were granted by the AOJ in a February 2021 rating decision. To date, the Veteran has not submitted a Notice of Disagreement with these issues. Thus, these issues are no longer on appeal before the Board. 1. Entitlement to service connection for a left shoulder disorder. The Veteran contends that she fell off a rope and into a net, landing on and injuring her shoulder in basic training. She also asserts that during a separate incident, she was marching and fell down with her gear during service. See March 2017 Board transcript at pgs. 25-27. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left shoulder sprain (diagnosed at the October 2009 VA examination), and while the Board will concede the in-service injuries took place, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left shoulder sprain began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records (STRs) do not contain any pertinent complaints of or treatment for the left shoulder. However, the Veteran is competent and credible to describe the in-service injuries. The Board will concede that the in-service injuries took place. The first notation of a left shoulder disorder in the record was noted at the October 2009 VA compensation examination, almost a year after the Veteran’s military discharge. At the time, the Veteran stated that she injured her left shoulder a month ago when her left ankle gave way and she fell. She did not state that her left shoulder was related to her active military service at the examination. While the Veteran is competent to report her readily observable symptoms, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and past recollections, Layno v. Brown, 6 Vet. App. 465, 469 (1994), the Veteran's lay statements are inconsistent with the reports provided to the medical practitioner. Because statements made for the purpose of medical diagnosis or treatment are deemed more trustworthy since the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment, White v. Illinois, 502 U.S. 346 (1992), the Board allocates more probative weight to the Veteran's reports reflected in the VA examination report than to the testimony and lay statements submitted by the Veteran in connection with this claim. Additionally, taken together, the March 2020 and January 2021 VA examiners’ opinions establish that the Veteran’s left shoulder strain is not at least as likely as not related to an in-service injury, event, or disease, including the two in-service injuries. Both VA examiners opined that the Veteran’s left shoulder strain was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The combined rationale was that there was no information in the STRs to indicate the Veteran developed a chronic left shoulder condition during service. The Veteran had at least fourteen medical clinic visits during her three-month period of active duty. She had no visits for shoulder pain. She claimed left shoulder pain for the first time at her October 2009 VA compensation examination. The left shoulder X-ray performed at the VA examination was normal. Taking into consideration the Veteran’s testimony of falling into a net, the Veteran’s testimony of falling when marching with all of her gear, and the STRs, the examiners’ combined opinion was that the Veteran’s left shoulder strain was not at least as likely as not related to her military service. The examiners’ combined opinions are probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes her left shoulder sprain is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinions. The claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle disorder is remanded. 2. Entitlement to service connection for a right ankle disorder is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the bilateral ankle issues. In December 2020, the Board remanded these claims for a VA medical opinion to be obtained. Negative nexus VA medical opinions were provided in January 2021. As support for the opinions, the VA examiner reasoned that there was no evidence in the medical record of bilateral lateral collateral ligament sprain. This is factually inaccurate, as the Veteran was diagnosed with bilateral lateral collateral ligament sprain at the February 2020 VA examination. Another remand is required for an adequate VA medical opinion to be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for a cervical spine disorder is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the cervical spine issue. In December 2020, the Board remanded this claim for a VA medical opinion to be obtained. A negative nexus VA medical opinion was provided in January 2021, in which the examiner reasoned that the Veteran did not mention neck pain on a single visit during her active military service. This rationale is factually inadequate, as the Veteran was treated on one occasion during service in November 2008 for severe neck pain. The examiner also did not provide a chronic presumption opinion after diagnosing the Veteran with degenerative arthritis of the cervical spine. Another remand is required for an adequate VA medical opinion to obtained. Stegall, 11 Vet. App. at 271. 4. Entitlement to an initial disability rating in excess of 10 percent prior to February 21, 2020, for the left knee sprain is remanded. 5. Entitlement to an initial disability rating in excess of 40 percent since February 21, 2020, for the left knee sprain is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the left knee issues. In December 2017, January 2020, and December 2020, the Board remanded these claims for a VA examination to conducted that complied with Correia v. McDonald, 28 Vet. App. 158, 165 (2016). Upon remand, a recent VA examination was conducted in January 2021, but the examination did not include passive ranges of motion of both knees. This was specifically requested by the Board in its remand directives. Another remand is required for an adequate VA examination to be obtained. Stegall, 11 Vet. App. at 271. Also, in a February 2021 rating decision, the AOJ proposed to reduce the Veteran’s service-connected left knee sprain from 40 percent to 10 percent. In response, the Veteran requested a pre-determination hearing before a Decision Review Officer (DRO) regarding the proposed reduction of her service-connected left knee sprain from 40 percent to 10 percent. To date, this hearing has not been conducted. However, this hearing is pertinent to the left knee issues currently on appeal before the Board. Upon remand, the hearing must be scheduled, and a copy of the hearing transcript must be associated with the evidence of record. The matters are REMANDED for the following actions: 1. Schedule the Veteran for her requested pre-determination DRO hearing regarding the proposed reduction of her service-connected left knee sprain from 40 percent to 10 percent. Following the hearing, associate a copy of this hearing transcript with the evidence of record. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed bilateral lateral collateral ligament sprain of the ankles are at least as likely as not related to service, to include the October 2008 STRs, the Veteran’s testimony of falling into a net, and the Veteran’s testimony of falling when marching with all of her gear. In providing the requested opinion, consider the Veteran’s description of her in-service injuries and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injuries and symptoms in service and thereafter represented the onset of her current disabilities, this should be noted. Stated another way, do the Veteran’s reports about her symptoms align with how the currently diagnosed disabilities are known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinion. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s cervical spine disorder, to include her currently diagnosed cervical strain, cervical degenerative disc disease, and degenerative arthritis of the cervical spine. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s cervical spine disorder at least as likely as not related to service? Is it at least as likely as not that the degenerative arthritis of the cervical spine (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In providing the requested opinions, the examiner must address the documented November 1, 2008, complaint of severe neck pain, the Veteran’s testimony of falling into a net landing on her neck, and the Veteran’s testimony of falling when marching with all of her gear. In providing the requested opinions, consider the Veteran’s description of her in-service injuries and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injuries and symptoms in service and thereafter represented the onset of her current disabilities, this should be noted. Stated another way, do the Veteran’s reports about her symptoms align with how the currently diagnosed disabilities is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinions. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left knee sprain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active ranges of motion, passive ranges of motion, and pain with weight-bearing and without weight-bearing of both knees. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.