Citation Nr: 21026068 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-28 957 DATE: April 29, 2021 ORDER Entitlement to service connection for left knee degenerative arthritis is granted. Entitlement to service connection for right hip degenerative arthritis is granted. Entitlement to service connection for right shoulder tendonitis is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s left knee degenerative arthritis is related to his active duty service. 2. The evidence is at least evenly balanced as to whether the Veteran’s right hip degenerative arthritis is related to his active duty service. 3. The evidence is at least evenly balanced as to whether the Veteran’s right shoulder tendonitis is related to his active duty service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for left knee degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for right hip degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for right shoulder tendonitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1990 to April 1990 and November 1990 to November 1994. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claims of service connection for left knee condition, right hip condition, and right shoulder condition. The claims on appeal were previously remanded by the Board in August 2017, September 2020, and February 2021 for further development. As the Board is granting the claims of service connection on appeal in full, discussion of compliance with the Board’s February 2021 remand instructions is unnecessary in regard to those claims.  Stegall v. West, 11 Vet. App. 268 (1998).   In light of the favorable decision to grant the Veteran’s claims for entitlement to service connection on a direct incurrence basis, a discussion of any other theory of entitlement is not necessary. Entitlement to service connection for left knee degenerative arthritis, right hip degenerative arthritis, and right shoulder tendonitis Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service.  38 C.F.R. § 3.303(d).  The Veteran contends his left knee, right hip and right shoulder disabilities began in-service and have continued since his separation from service. February, November, and December 1992 service treatment records indicated that the Veteran complained of bilateral knee pain. An April 1992 service treatment record noted that the Veteran experienced right shoulder pain after lifting weights. A VA examiner found during a March 2018 VA examination that the Veteran’s left knee disability was less likely than not related to service. The examiner noted the Veteran’s service treatment records did not indicate a left knee disability. Moreover, there were no other reports of evaluation or treatment for a left knee disability for time in service, immediately after, or in the years following service until a complaint of left knee pain in August 2014. Thus, the examiner was unable to connect the present knee condition to the Veteran’s time in service. In March 2018, the Veteran reported that his right hip pain started in approximately 1997 to 1999. The VA examiner found that the Veteran’s right hip disability was less likely than not related to service. The examiner noted the Veteran’s service treatment records did not indicate right hip pain. Moreover, there were no other reports of evaluation or treatment for a right hip disability for time in service, immediately after, or in the years following service until hip complaints in June 2003. Hip arthritis was noted after time in service in x-rays in 2013 and 2018. Thus, the examiner was unable to connect the present hip arthritis to the Veteran’s time in service. In March 2018, the Veteran reported during a VA examination that he injured his right shoulder in 1992 lifting weights and that it has gradually gotten worse. He endorsed bilateral shoulder pain when lifting his arms, and that it was hard to lift objects and drive a car. The VA examiner found that the Veteran’s right shoulder disability was less likely than not related to service. The examiner noted the Veteran’s 1992 service treatment record that noted right should strain. However, there were no other reports of evaluation or treatment for a right shoulder condition for the remaining time in service, immediately after, or in the years following service until May 2002, 10 years after the initial complaint. Thus, the examiner was unable to connect the right shoulder condition in 1992 to the present right shoulder condition. During a November 2020 VA examination, the Veteran reported that he favored his left knee after his right knee surgery in 1991 while in service because of his use of cane. He then began to have problems with his left knee about 15 years ago. A VA examiner found during a November 2020 VA examination that the Veteran’s left knee disability was less likely than not related to service. The examiner reasoned that the Veteran’s service treatment records were silent were any left knee injuries, problems, or complaints, as were subsequent medical records. X-rays that documented spurring of the left knee beginning in 2019 were consistent with age. In the absence of specific injury to the joint, osteoarthritis/degenerative joint disease is a result of age-related wear and tear. A VA examiner found during a November 2020 VA examination that the Veteran’s right shoulder disability was less likely than not related to service. The examiner reasoned that there was no objective evidence of a right shoulder condition at the time of the examination. The Veteran’s service treatment records were also silent were any right shoulder injuries, problems, or complaints, except for a mild right shoulder strain after lifting weights in April 1991. Subsequent service treatment records were silent for any continuing shoulder complaints. Furthermore, current VA medical records documented no shoulder conditions with essentially normal x-rays of the shoulders, and the Veteran’s current bilateral shoulder symptoms and examinations findings were consistent with his documented degenerative disc disease of the cervical spine. Moreover, sprain/strain injuries are self-limiting. A VA examiner found during a November 2020 VA examination that the Veteran’s right hip disability was less likely than not related to service. The examiner reasoned that there was no objective evidence of a right hip condition at the time of the examination. The Veteran’s service treatment records were also silent were any hip injuries, problems, or complaints, as were subsequent medical records. In February 2021, a VA examiner opined that the Veteran’s right shoulder disability was less likely than not related to service. The examiner reasoned that service treatment records noted the Veteran’s April 1992 right shoulder sprain after lifting weights. There were no other service treatment records found to show complaint of or treatment for a right shoulder condition. Examinations for range of motion of the right shoulder in 2018 showed marked limitation versus an examination in 2020. However, range of motion measurements are not very reliable or reproducible due to patient cooperation, body habitus, age, comorbidities, and the status of the condition. The Veteran’s cervical spine degenerative disc disease could certainly cause symptoms in his shoulders due to the cervical nerves innervated in the upper extremities. For the following reasons, entitlement to service connection for left knee degenerative arthritis, right hip degenerative arthritis, and right shoulder tendonitis is warranted. The March 2018 VA examiner noted the Veteran’s diagnoses of left knee degenerative arthritis, right hip degenerative arthritis, and right shoulder tendonitis. Thus, the Veteran meets the current disability requirement.  February, November, and December 1992 service treatment records indicated that the Veteran complained of bilateral knee pain, and an April 1992 service treatment record noted that the Veteran experienced right shoulder pain after lifting weights. Thus, the Veteran meets the in-service injury or disease requirement in regard to those disabilities. The March 2018, November 2020, and February 2021 VA opinions are afforded little probative value as they relied on the lack of contemporaneous medical evidence without considering the Veteran’s lay statements regarding continuous left knee, right shoulder, and right hip pain symptoms both in and since his separation from service.  Buchanan v. Nicholson, 451 F.3d 1331, 1336 (VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”).      Moreover, the November 2020 opinions in regard to the right hip and right shoulder disabilities are inadequate as both opinions found that there were no current right hip and shoulder disabilities, even though the March 2018 VA examiner noted the Veteran’s current diagnoses of right hip degenerative arthritis and right shoulder tendonitis. The Veteran is competent to report his continuous back, bilateral shoulder, and left hand pain symptoms in the years since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence).  There is nothing to explicitly contradict the Veteran’s reports, thus, they are credible and competent.   To the extent that the grant of service connection in these matters are based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.”  Id. at 1335.   At this point, the Board could remand the claim for a VA examination or opinion.  However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)).  For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s left knee degenerative arthritis, right hip degenerative arthritis, and right shoulder tendonitis are related to his active duty service.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left knee degenerative arthritis, right hip degenerative arthritis, and right shoulder tendonitis is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.