Citation Nr: 21031588 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-14 511 DATE: May 24, 2021 ORDER Entitlement to service connection for a disability manifested by drop foot is dismissed. Entitlement to service connection for a right hip disability is dismissed. Entitlement to service connection for a right knee disability is dismissed. Entitlement to service connection for a left knee disability is dismissed. The appeal for the issue of entitlement to service connection for primary lateral sclerosis (PLS) is dismissed. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a left hip disability is denied. FINDINGS OF FACT 1. Entitlement to service connection for common peroneal nerve drop foot, a right hip disability, and right and left knee osteoarthritis was granted in an August 2020 rating decision effective October 24, 2014, the date of receipt of the Veteran's claim. 2. The preponderance of the evidence weighs against a finding that the Veteran's current right shoulder disability was incurred during or as a result of service. 3. The preponderance of the evidence weighs against a finding that the Veteran's current left shoulder disability was incurred during or as a result of service, and left shoulder arthritis is not shown to have manifest to a compensable degree within one year of service. 4. The preponderance of the evidence weighs against a finding that the Veteran's current left hip disability was incurred during or as a result of service or that arthritis was manifest to a compensable degree within one year of service. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal for the issues of entitlement to service connection for drop foot, right hip, right knee, and left knee disabilities have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. § 1110, 1116; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. § 1110, 1116; 38 C.F.R. § 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. § 1110, 1116; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1967 to October 1969, with service in the Army Reserves from May 1970 to September 1972 which included a period of active duty for training from July to August 1970. This appeal was previously before the Board in December 2019, at which time the Board remanded the claims on appeal for further development, to include obtaining a medical nexus opinion that addressed whether the claimed disabilities were incurred during or related to service, including his presumed herbicide exposure. See December 2019 Board decision and remand. All requested development has been conducted and the appeal has been returned to the Board for further consideration. Dismissed Appeals 1. Entitlement to service connection for a disability manifested by drop foot 2. Entitlement to service connection for a right hip disability 3. Entitlement to service connection for a right knee disability 4. Entitlement to service connection for a left knee disability In October 2014 and April 2015, the Veteran filed claims seeking service connection for drop foot and peripheral neuropathy involving the upper and lower extremities. In the June 2015 rating decision on appeal, the agency of original jurisdiction (AOJ) denied service connection for drop foot and peripheral neuropathy affecting the bilateral upper and lower extremities, after which the Veteran subsequently perfected an appeal. In an October 2019 decision, the Board, in relevant part, recharacterized the Veteran's claims for peripheral neuropathy involving the bilateral upper and lower extremities as separate claims for service connection for bilateral shoulder, bilateral knee, and bilateral hip disabilities, as the evidence showed his symptoms were due to degenerative joint disease of the shoulders, knees, and hips instead of a peripheral nerve condition or neuropathy. See May 2015 VA peripheral nerves examination. However, the Board remanded the bilateral shoulder, knee, and hip claims, as well as the right drop foot claim, for additional evidentiary development. See October 2019 Board decision and remand. After conducting the requested development, the AOJ granted service connection for common peroneal nerve drop foot, left and right knee osteoarthritis, and a right hip disability effective October 24, 2014, the date of receipt of the Veteran's claim. See August 2020 rating decision. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007). Additionally, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. Upon review of this matter, the Board concludes that there is no case or controversy within the Board's jurisdiction with respect to the claimed drop foot and disabilities involving the left knee, right knee, and right hip, as service connection has been granted for each of those disabilities. In this context, the Board again notes that, while the Veteran initially claimed entitlement to service connection for peripheral neuropathy involving the bilateral upper and lower extremities, his peripheral neuropathy claims were recharacterized as separate claims for disabilities affecting the bilateral shoulders, knees, and hips. The record does not indicate that there is a pending, unadjudicated claim which would allow for the assignment of an earlier effective date and the Veteran does not allege otherwise. Therefore, as there is no case or controversy within the Board's jurisdiction as to the claims involving drop foot, right hip, or right and left knee, the Board must dismiss these matters. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 5. Entitlement to service connection for a right shoulder disability 6. Entitlement to service connection for a left shoulder disability The Veteran has asserted that his current right and left shoulder disabilities are related to his military service. See November 2020 Brief. The Veteran's service treatment records (STRs) reflect that, during his August 1969 separation examination, he reported having pain in the neck that radiated to the left shoulder. The examiner noted the Veteran had a history of injury to the left side of the neck after being struck with a car two years prior and that the Veteran endorsed having left neck and shoulder pain; however, examination revealed full range of motion of the neck and the Veteran's extremities were within normal limits. As a result, the examination was deemed normal and the Veteran was cleared for separation. See August 1969 report of medical examination. The post-service evidence shows that, in 2011, the Veteran was admitted to a VA occupational therapy program for treatment of right side weakness involving the right arm and leg that occurred after having a stroke. On clinical evaluation, the Veteran demonstrated normal range of motion and muscle strength in his upper extremities, and a relevant right or left shoulder diagnosis was not rendered at that time. See August 2011 VA treatment record. In October 2014, the Veteran reported having bilateral shoulder pain with movement. Notably, he reported that his symptoms had been occurring intermittently for one month. Subsequently, in April 2015, the Veteran reported having an insidious onset of right shoulder pain that had persisted for six months. At that time, the diagnostic assessment was bilateral shoulder pain and the Veteran was advised to start physical therapy to improve the range of motion and muscle strength in the right upper extremity. See VA treatment records dated October 2014 and April 2015. He later reported having increased left shoulder pain with elevation which appeared to improve with physical therapy, but the evidence also reflects reports of additional, intermittent complaints of left shoulder pain and soreness. See e.g., VA treatment records dated February 2016 and August 2017. Indeed, the evidence shows the Veteran was eventually diagnosed with left shoulder rotator cuff tendonitis and substantial osteoarthritis in the left glenohumeral joint. See VA treatment records dated August 2017 and April 2019. While there is evidence of continued, intermittent complaints of bilateral shoulder pain after service, the Board notes that the Veteran reported that his shoulder pain had a more recent onset, without any indication that his post-service shoulder problems began in, continued since, or are otherwise related to his military service. As noted, in October 2014, he reported that his symptoms had been occurring for one month and, in December 2018, he reported having persistent shoulder pain for the past "few weeks." In April 2019, the Veteran also reported that his shoulder pain was chronic but had worsened over the past two months without any recent injury, fall, or new activity. Notably, there is no competent lay or medical evidence showing continued right or left shoulder pain or other symptoms since service; nor is there any medical evidence or opinion of record that relates the current right or left shoulder disabilities to service. In December 2019, a VA physician examined the Veteran and continued the diagnosis of left shoulder degenerative arthritis, while objective evaluation of the right shoulder was normal at the time. Notably, the Veteran denied having a left shoulder condition during service and, based on the Veteran's report that a shoulder condition was not incurred during service, the VA examiner opined that it is less likely as not that any shoulder disability had its onset during or is otherwise related to the Veteran's active service, including his presumed herbicide exposure. The Board acknowledges that the December 2019 VA examiner did not provide a diagnosis as to the right shoulder but, as noted, objective, clinical examination of the right shoulder was normal during the examination. Nevertheless, the Board notes that the Veteran's complaints of right shoulder pain are shown, on at least one occasion, to result in a functional impairment that impairs his ability to function normally and likely impact his ability to work. See April 2015 VA treatment record. As such, there is sufficient evidence to establish the presence of a right shoulder disability during the appeal period. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). While the December 2019 VA examiner did not address the evidence of a right shoulder disability during the appeal period, the Board finds significant that the examiner's opinion addressed "any shoulder disability," which the Board finds includes any functional impairment caused by the Veteran's complaints of right shoulder pain. The Board also acknowledges that the December 2019 VA opinion did not address the Veteran's complaints of left neck and shoulder pain at separation from service, which is a fact relevant to this claim. Nevertheless, in evaluating the ultimate merit of this claim, the Board finds probative that there is no credible lay or medical evidence of continued left or right shoulder pain after service and no medical evidence or opinion of record that indicates or suggests that the Veteran's current right or left shoulder disability is related to his period of active service. As noted, despite the report of left neck and shoulder pain at separation, the post-service evidence shows that he reported that his bilateral shoulder pain was of a more recent onset, as opposed to having continued since service or being related to any injury or event during service. Therefore, despite the deficiencies noted above, the Board places significant weight on the December 2019 VA opinion, as it based upon and consistent with the other evidence of record which, as noted, that does not show or otherwise indicate that the current right or left shoulder disabilities were incurred in or are otherwise related to the Veteran's military service, to include his complaints of left shoulder pain at separation from service or his presumed exposure to herbicides. Indeed, given the lack of lay or medical evidence establishing continuity of symptomatology following service and the Veteran's reports that his bilateral shoulder pain began many years after service, the Board finds that remanding this appeal to obtain an additional medical opinion is unnecessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In evaluating this claim, the Board has considered the statements of the Veteran and his representative that purport to link his current right and left shoulder disabilities to military service. However, the Veteran is not competent to attribute his bilateral shoulder pain or disabilities to any incident of his military service, as he has not demonstrated that he is an expert in determining the etiology of a musculoskeletal condition and is a layperson in this regard. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson's competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). Neither the Veteran's nor his representative's statements linking the current right and left shoulder disabilities to his military service are within the realm of knowledge of a layperson. Rather, the cause or etiology of a musculoskeletal disability is a complex question that requires medical knowledge and expertise. Therefore, the lay statements submitted in support of these claims are outweighed by the other evidence of record. As a final matter, the Board notes that, while the Veteran was diagnosed with left shoulder degenerative arthritis in April 2019, the evidence of record does not show that his arthritis was otherwise manifest to a compensable degree prior to 2019, which is approximately 50 years after he was discharged from service. Therefore, presumptive service connection, to include on the basis of continuity of symptomatology, for left shoulder arthritis is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Accordingly, service connection is not warranted for a right and left shoulder disability, as the preponderance of the evidence weighs against a finding that the Veteran's current shoulder disabilities were incurred during or as a result of his military service. Accordingly, the Veteran's claims are denied, and the benefit of the doubt doctrine is not applicable. 7. Entitlement to service connection for a left hip disability The Veteran has generally asserted that he has a current left hip disability that is related to his military service. Since filing his claim, however, the Veteran has not identified any event, injury, or disease that occurred during service to which the claimed left hip disability may be related. Indeed, the Veteran's STRs do not contain any complaints, treatment, or diagnoses related to a left hip disability incurred or expereinced during service, including during his August 1969 separation examination. See e.g., August 1969 reports of medical history and examination. As noted, the post-service evidence shows that, in 2011, the Veteran was admitted to a VA occupational therapy program for treatment of right side weakness involving the right arm and leg that occurred after he had a stroke. The Veteran reported having symptoms of right foot drop 40 years prior, which resolved on its own, but he stated that the symptoms returned that morning and were manifested by pain in the big toe up his right leg to the hip and right hand. At that time, the Veteran also reported having chronic hip and knee pain and x-rays of his right hip revealed osteoarthritis. Notably, there were no relevant complaints or objective evidence involving the left hip at that time. See VA treatment records dated May and August 2011. Thereafter, in January 2013, the Veteran presented for treatment with complaints of burning in the pre-sacral region that had persisted for three weeks. He reported that the pain did not radiate or include any change in his typical right radicular low back pain or right hip pain. The Veteran did not endorse having left hip pain at that time, but clinicians ordered x-rays of both hips which revealed minimal narrowing, a small amount of osteophyte, and cystic changes in the femoral head of the left hip. Despite the foregoing, clinicians did not render a relevant left hip diagnosis at that time; nor is there any indication that the findings noted on x-ray resulted in pain or other symptoms in his left hip that resulted in a functional impairment at that time. See January 2013 VA treatment record. Review of the post-service evidence reveals that all of the Veteran's complaints involved his right hip until May 2013 when he endorsed having bilateral hip pain that he stated began 20 years prior, which the Board notes would be in approximately 1993. While the Veteran reported that his hips would give out occasionally and he was diagnosed with painful bilateral hip osteoarthritis at that time, neither he nor the examining clinician indicated that his hip pain, including specifically his left hip pain or arthritis, began as a result of any event, injury, or disease in service. See May 2013 VA treatment record. In fact, the Veteran has not provided any lay or medical evidence showing or suggesting that he has expereinced left hip pain since service or that a chronic left hip disability was incurred during or as a result service. In this context, the Board notes that the presumption of service connection for certain chronic disabilities is inapplicable in this case, as the earliest evidence of the Veteran's left hip arthritis is more than 20 years after service. Therefore, service connection is not warranted for left hip osteoarthritis on a presumptive basis as a chronic disease or based upon continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In evaluating this claim, the Board finds significant that, when the Veteran is shown to report having bilateral hip pain after service, he indicated that his bilateral hip pain began approximately 20 years after he was discharged from service, with no indication that his left hip pain began during or as a result of his military service. The Board also finds probative that there were no relevant complaints or findings involving the left hip noted during the most recent VA examination in December 2019, and the Veteran has not otherwise explained why he thinks service connection should be granted for his left hip disability. See also September 2020 Veteran statement. While the Veteran has generally asserted that his current left hip disability is related to his military service, the etiology or cause of a musculoskeletal disability, such as left hip arthritis, is a complex medical issue that requires evaluation and medical expertise. The Veteran is not shown to have the medical expertise to provide an opinion on such complex issues; nor has he offered any basis in common lay knowledge to support his assertion that his current left hip disability is due to his military service. Therefore, the Veteran's statements in this regard are not considered more probative than the other evidence of record. There is also no medical evidence or opinion of record that attributes the Veteran's left hip disability to his military service or, as noted, any credible lay evidence of continued left hip symptoms since service. Without such evidence indicating that the Veteran's current left hip disability may be related to his military service, the Board finds a VA examination is not needed. See McLendon v. Nicholson, 20 Vet. App. 79, 81-2 (2006). In fact, as there is no competent lay or medical evidence indicating that the post-service complaints left hip pain and diagnosis of osteoarthritis were incurred during service or as a result of any in-service event, injury, disease or service-connected disability, the Board finds the preponderance of the evidence is against the grant of service connection for a left hip disability. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.