Citation Nr: 21032689 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-03 663 DATE: May 27, 2021 ORDER Entitlement to service connection of a low back condition, claimed as chronic pain, is denied. Entitlement to service connection of a right hip condition, status-post total hip replacement, is denied. Entitlement to service connection of a left hip condition is denied. Entitlement to service connection of a right knee condition is denied. Entitlement to service connection of a left knee condition is denied. Entitlement to service connection of a right shoulder condition, status-post shoulder replacement surgery, is denied. Entitlement to service connection of a left shoulder condition is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran presented with scoliosis upon entrance to service; his scoliosis was not aggravated beyond natural progression by service; his present low back disability is degenerative in nature and not otherwise related to any incident of active service. 2. The Veteran presented for active service with a leg-length discrepancy, the result of childhood osteomyelitis; his bilateral hip condition, as it is related to his leg-length discrepancy, was not aggravated beyond natural progression by active service; he did not sustain any hip injury during active service and his present bilateral hip disabilities are not related to any incident of active service. 3. The Veteran presented for active service with a leg-length discrepancy, the result of childhood osteomyelitis; his bilateral knee condition, as it is related to his leg-length discrepancy, was not aggravated beyond natural progression by active service; he did not sustain any knee injury during active service and his present bilateral knee disabilities are not related to any incident of active service. 4. The Veteran presented for active service with an arm-length discrepancy, the result of childhood osteomyelitis; his bilateral shoulder condition, as it is related to his arm-length discrepancy, was not aggravated beyond natural progression by active service; he did not sustain any shoulder injury during active service and his present bilateral shoulder disabilities are not related to any incident of active service. 5. The Veteran is not presently service-connected for any disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 2. The criteria for service connection for a right hip condition, status-post total hip replacement, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 3. The criteria for service connection for a left hip condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 4. The criteria for service connection for a right knee condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 5. The criteria for service connection for a left knee condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 6. The criteria for service connection for a right shoulder condition, status-post shoulder replacement, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 7. The criteria for service connection for a left shoulder condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 8. The criteria for a grant of TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.19, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the Central Office in Washington, DC. A transcript of that hearing is associated with the claims file. As a matter of procedural background, these issues were previously before the Board in May 2020, at which time they were remanded for further development. While the development previously ordered by the Board was underway, but prior to the matters returning to the Board for further appellate review, the Veteran notified VA that he no longer wished to be represented by his prior attorney. In support of this, he submitted a copy of a letter from his attorney acknowledging his wish to revoke his power of attorney, and a written statement to VA requesting that it no longer contact the former attorney. To date, the Veteran has not appointed a new attorney or representative and is considered to be proceeding pro se. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Service connection may also be granted for a condition which clearly and unmistakably preexisted service, where there is a finding that the disability increased during service, and that increase was not due to the natural progression of the disease. 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. §§ 3.304 (b), 3.306(a). 1. Entitlement to service connection of a low back condition, claimed as chronic pain 2. Entitlement to service connection of a right hip condition, status-post total hip replacement 3. Entitlement to service connection of a left hip condition 4. Entitlement to service connection of a right knee condition 5. Entitlement to service connection of a left knee condition 6. Entitlement to service connection of a right shoulder condition, status-post shoulder replacement surgery 7. Entitlement to service connection of a left shoulder condition The Veteran seeks service connection of a low back condition, bilateral hip condition, bilateral knee condition, and bilateral shoulder condition. The Board finds that the claims should be denied. Although the Veteran served on active duty for a very brief period of time, his appeal presents slightly more complex questions than would ordinarily be adjudicated. As an initial matter, the Board recognizes present disabilities associated with all of his claimed joints and spine. The Veteran entered service in February 1982, with a notation that his right arm was 1.5 inches shorter than the left, and his left leg was 1.5 inches shorter than the right, noted to be a congenital condition due to an osteomyelitis as an infant. He was also noted to have spinal scoliosis, a congenital deformity. Despite these conditions which clearly and unmistakably pre-existed service, the Veteran asserted that he suffered no disability, and was found fit for entry to active service. Two weeks after he entered active service, during basic training, the Veteran presented for an Entrance Physical Standards Board Proceeding, complaining of right shoulder weakness, and discomfort and pain in the lower extremity, secondary to his leg length discrepancy. He asserted that he had congenital abnormalities which required surgery on the left lower extremity prior to service. During his two weeks of basic training, he experienced difficulty trying to complete the overhead bars, and doing pushups. He also reported some problems with runs, and has been unable to complete runs without significant discomfort in the left hip. Upon examination, both his upper right arm and left leg conditions were considered to be congenital in nature, and while both were irritated by service, neither had been aggravated, and no permanent worsening of either condition was found at the time. The Veteran was given a physical profile which stated no crawling, stooping, running, jumping, marching, or standing for long periods; no mandatory strenuous physical activity; no assignment requiring handling of heavy materials including weapons (except an individual weapon such as a rifle). Approximately one and a half weeks later, on March 5, 1982, the Veteran signed a statement concurring with the proceedings of the Fitness Board that he was not physically qualified for service, and requested a discharge. He was subsequently discharged from active service. For his part, the Veteran testified before the undersigned Veterans Law Judge that while attempting monkey bars during basic training, he was deprived of the use of a hook to reach the bars, and fell, dislocating his arm and hurting his hip. He states that he was not treated that day for a dislocated arm, and the following day he went to a doctor, which he described as not being an "official doctor" who told him the only thing they would do was amputate the arm, so he reduced his own dislocated shoulder. Shortly thereafter, he was presented to the platoon leader who threw him out of active service. The Board finds the Veteran's testimony regarding a significant injury to his shoulder and hip to be of limited probative value in assessing his claim. Although, as a lay person, he is certainly competent to report certain medical conditions, such as pain, a broken bone, or a dislocated shoulder, once basic competency is established, credibility of the evidence must be considered. Factors to consider when assessing the credibility of lay evidence include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, malingering, lay statements made during treatment, the time of the creation of the evidence, erroneous recollection, direct personal knowledge or experience, and combat vs. non-combat situations. See Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran reports a significant injury to his shoulder during active service, of such severity that he was told he might lose his arm. However, there is no documentation of him ever seeking treatment for that injury. There is no evidence that he sustained ongoing issues with the arm until many years following service. He underwent a Medical Fitness examination and Board hearing, and yet no such injury was ever mentioned in the record. On the contrary, his limb-length discrepancies were found to hinder his ability to engage in regular physical activities required of a soldier. Given the length of time which has passed between when the injury is supposed to have occurred, and given the complete lack of any documentation of that injury, as well as the plausibility that such a significant injury occurred without any treatment or notation in the record, the Board finds this testimony to be of limited-to-no credibility. Therefore, the Board cannot concede that such an injury ever took place. In short, there is no evidence in the record that the Veteran ever sustained an injury to either arm, leg, hip, or back in during active service. Despite, the lack of an in-service injury or incident in the record, VA sought a medical review of the evidence and opinion in 2016. The examiner opined that the Veteran's leg-length discrepancy, which included his bilateral hip and knee conditions, and which clearly and unmistakably preexisted service, was not aggravated by his brief period of active service. In support of this opinion, the examiner recounted the Veteran's thorough service treatment records and noted no complaints of or treatment for a hip or knee issue in service. There was no medical evidence of any aggravation by his brief time in service. The examiner also noted that the present hip and knee conditions are degenerative in nature, and the result of wear and tear or a genetic predisposition, and therefore there was no nexus to service. The examiner also noted that the Veteran's shoulder/arm length discrepancy, which included his claimed bilateral shoulder conditions, and clearly and unmistakably pre-existed service, was also not aggravated by his brief period of active duty. In support of this conclusion, the examiner recounted the Veteran's thorough service treatment history, and based on the available evidence, there is no medical basis upon which to find aggravation of the condition which preexisted service by active duty. With regard to the Veteran's low back, the examiner did note the pre-existing scoliosis condition, but also found that it was not aggravated by active duty. In support of this, the examiner recounted the Veteran's detailed service treatment records that did not include any treatment for or complaints of back pain. The examiner noted that the present disability is, in fact, degenerative in nature, and more likely the result of chronic wear and tear, or a genetic predisposition, and that there was no nexus to service. The Board finds these opinions persuasive. They were rendered by a medical specialist in contemplation of the Veteran's complete medical history, to include his service treatment records and post-service treatment history. They included consideration of the facts in evidence, and were well-reasoned based on known medical principles. The Board acknowledges that the Veteran has submitted an opinion by a Dr. F., a pain medicine doctor, based on a February 2012 examination. The private physician noted the Veteran's neonatal osteomyelitis, which resulted in a malformed right shoulder, bilateral malformed hips, a spinal malformation, and one arm and leg being shorter than the other. It does not appear as thought the private physician had access to the Veteran's service treatment records, as he reports a right shoulder dislocation, resulting in restrictions on his right shoulder mobility and a medical discharge. In 2003, a right hip collapse necessitated replacement surgery (with relatively pain free movement since that time), and a dislocation of the shoulder in 2011, also necessitating shoulder replacement surgery. Presently the Veteran has limitation of mobility in the right shoulder and some limitation of mobility in the right hip. He also has pain in his low back, left hip, and trapezius areas. Myofascial pain syndrome is also proposed as a possible cause of his various joint pains. The examiner then concludes that the conditions are of sufficient severity that he is unable to be employed, and therefore should be considered totally disabled. A second letter from Dr. F., dated in April 2014, following a review of the Veteran's claims file, the examiner concluded that all of the Veteran's claimed disabilities were more likely than not related to injuries sustained during active service. In support of this, the examiner cites to several notations in the Veteran's service treatment records, recounting difficulty crossing the monkey bars, and discrepancy in limb lengths. It is noted that the private physician also includes lay statements from the Veteran indicating a dislocated shoulder in service, which as addressed above, is not supported in the record. The examiner also noted that the Medical Board findings used the term "irritated" rather than aggravated, which he opined was likely intended to prevent any future claims. He then found that the present conditions were likely the result of significant injuries in service, to include his shoulder dislocation and hip symptoms sustained during service. He then states that there is no question, based on nearly thirty years of practice in pain medicine, that the injuries suffered during his basic training aggravated his congenital problems, which probably should have prevented him from entering active service in the first place. The problems have since deteriorated over time, faster than one would expect as a result of his service-related injuries. While certainly thorough and direct in his opinion, the Board finds Dr. F's opinion to be of lesser probative value than the VA examiner's opinion. Particularly, Dr. F. relies on a premise that the Veteran sustained significant injuries during active duty service, to include a shoulder dislocation and significant hip injury. However, as noted above, the Board has not found that adequate evidence exists to concede that these injuries ever occurred. They are not documented in the record, as would be anticipated for such a significant injury, nor is there any evidence of continuity treatment or symptoms from the time of service to the present. As the opinion is based upon the Veteran's lay statements regarding such an injury, which the Board has found less than credible, and not on the medical evidence as it exists in the service treatment records alone, the Board must find this opinion to be of lesser probative value than the VA examiner's opinion. The Board has carefully reviewed the Veteran's other available medical records, to include private treatment records, and records obtained from the Social Security Administration (SSA). While those records certainly do indicate present disabilities in all of the claimed joints, there is no evidence to suggest that they are related to any specific incident or injury during active service. Further, to the extent that the Veteran's various disabilities fall under the diagnostic umbrella of "arthritis," there is no evidence that he was diagnosed with arthritis during active service. Neither is there any evidence of a diagnosis of that disability within one year of separation from active service, nor is there adequate medical evidence that he has had specific diagnoses, or even symptoms associated with the present disabilities from the time of service. The Board recognizes that the Veteran firmly believes his present disabilities are related to active service. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his present physical disabilities, especially in light of the VA examiner's conclusions to the contrary and the fact that the evidence fails to demonstrate any actual injury during active service, or any aggravation of his preexisting conditions by his brief period of active service. See id. In sum, the Board finds that the Veteran's present disabilities, to the extent that they preexisted active service, were congenital in nature, and not aggravated by his very brief period of active service. He did not sustain any specific injury during active service to which any other disability may be etiologically linked. Neither did any of his present disabilities which did not preexist service have onset during or within the statutory one year following separation from service. Therefore, the Board finds that the claims must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 8. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran seeks TDIU. The Board finds that the claim must be denied. A TDIU is assigned when a veteran's service-connected disability or disabilities are of such severity that the veteran cannot secure or follow a substantially gainful occupation solely because of that disability or disabilities. 38 C.F.R. § 4.16. Generally, TDIU is awarded on a schedular basis, which requires that, if there is only one service-connected disability, this disability shall be ratable at 60 percent or more. If there is more than one disability, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more 38 C.F.R. § 4.16 (a). Under Roberson v. Principi, 251 F.3d 1378 (2001) and Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board must also consider TDIU even when the schedular criteria are not met. VA policy is that all Veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16 (b), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where Veterans are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). In sum, the Board cannot grant an extraschedular TDIU in the first instance, but may determine whether referral for such consideration is warranted. In the instant matter, the Veteran is not presently service connected for any disabilities. As such, he is not entitled to TDIU on a schedular or extraschedular basis, and the claim must be denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel