Citation Nr: 21040212 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-34 178 DATE: July 2, 2021 ORDER Entitlement to service connection for a disability manifested by diffuse pain of the joints and muscles other than pain associated with spondylolisthesis, arthritis of the hands, osteomyelitis, bilateral torn rotator cuffs, and arthroscopic surgery due to a knee disability in both knees is denied. FINDING OF FACT A disability manifested by diffuse pain of the joints and muscles other than pain associated with spondylolisthesis, arthritis of the hands, osteomyelitis, bilateral torn rotator cuffs, and arthroscopic surgery due to a knee disability in both knees was not manifest during active service and the preponderance of the evidence fails to establish that a present disability is etiologically related to service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability manifested by diffuse pain of the joints and muscles other than pain associated with spondylolisthesis, arthritis of the hands, osteomyelitis, bilateral torn rotator cuffs, and arthroscopic surgery due to a knee disability in both knees have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1961 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in June 2018 and November 2020. In its November 2020 remand, the Board noted that service connection for spondylolisthesis and an acquired psychiatric disability were granted in a June 2018 Board decision. Additionally, previous final rating determinations denied service connection for osteomyelitis from osteotomy, bilateral torn rotator cuffs, arthroscopic surgery, knee disability (both), and advanced arthritic pain in hands with shaking of left hand. In an effort to differentiate from the previously denied and granted claims, the Board recharacterized the issue on appeal for administrative clarification purposes. 1. Entitlement to service connection for a disability manifested by diffuse pain of the joints and muscles other than pain associated with spondylolisthesis, arthritis of the hands, osteomyelitis, bilateral torn rotator cuffs, and arthroscopic surgery due to a knee disability in both knees. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The term "disability" for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). A medical opinion based upon an inaccurate factual premise may be discounted entirely. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The Veteran contends that he has a disability manifested by diffuse pain of the joints and muscles other than pain associated with spondylolisthesis, arthritis of the hands, osteomyelitis, bilateral torn rotator cuffs, and arthroscopic surgery due to a knee disability in both knees as a result of military service. In statements in support of his claim he reported, in essence, that he had joint and muscular pain as a result of service due to a matter not otherwise addressed by prior VA determinations. Correspondence received in May 2018 cited Saunders v. Wilkie, 887 F.3d 1356 (Fed. Cir. 2018), and asserted that service connection was warranted for pain alone based upon the functional impairment caused by back and joint pain. It was noted that there were "numerous in-service medical records in which [the Veteran] complained about his back and joint pain due to spondylolisthesis." VA records show that service connection is established for spondylolisthesis (20 percent) and major depressive disorder secondary to spondylolisthesis (100 percent). Records show that service connection has been denied in decisions that have become final for osteomyelitis from osteotomy, bilateral torn rotator cuffs, bilateral knee conditions with arthroscopic surgery, removal of neck tumor, eye condition, enlarged prostate, and advanced arthritic pain in hands with shaking of the left hand. In a September 2018 private medical opinion P.L.G., M.D., noted he had been the Veteran's primary care physician since 2007 and found that he had been unable to maintain physical conditioning over the years due to chronic pain and limitations of his physical abilities due to complications from a spine injury in 1965. It was asserted that he had required multiple surgeries over the years related to mechanical issues that developed as a result of his spinal injury, including a right femur osteotomy with subsequent osteomyelitis and four knee surgeries. In summary, Dr. P.L.G. found the Veteran had experienced chronic pain with reduced ability to perform at the very high level or physical function that he had prior to his spinal injury. It was further asserted that he had required multiple surgeries and hospitalizations to mitigate the complications directly related to his spinal injury in 1965. In a February 2020 statement Dr. P.L.G. asserted that the Veteran had experienced multiple sequelae as a direct effect of his spinal injury in 1965, including a torn rotator cuff, severe osteoarthritis of the knees, and bilateral hernia repairs. It was noted his injuries had limited his day-to-day physical functioning and had caused significant mental stress. He had required medication on a chronic basis to control his daily pain but still had a reduced ability to walk and perform activities of daily living. His use of medications over the course of many years, it was noted, had little effect in improving or correcting the multiple injuries he sustained as a result of his initial spinal injury in 1965. VA muscle injuries examination in August 2020 found the Veteran did not have a diagnosed muscle injury. The report provided a summary of pertinent medical evidence including a November 2013 X-ray study of the left hand with findings suspicious for inflammatory arthritis. The examiner, J.O., a nurse practitioner, acknowledged the statements of Dr. P.L.G. but noted they indicated the onset of care 42 years after service and that many of the Veteran's reports of symptoms were first noted in 2013. The denials of service connection for bilateral torn rotator cuffs, bilateral knee conditions with arthroscopic surgery, removal of neck tumor, and advanced arthritic pain in hands with shaking of the left hand were noted. It was further noted that the Veteran was shown to have traveled to his appointment via public transportation, that he negotiated the use of stairs, that he had walked two blocks to the appointment, and that he was able to transfer from sitting to standing positions independently. An August 2020 VA medical opinion from J.O. found it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner found that, while there is documented evidence that the Veteran sustained an injury in service, there was no other documented evidence that his joint and muscular pain is related to his active duty service. It was noted that he was diagnosed with spondylolisthesis in 1965 and that he experienced chronic pain related to a multitude of muscular skeletal conditions that caused muscle and joint pain. The examiner, however, found there was no direct evidence of a connection to service and that the Veteran's joint and muscular pain was neither occurred in nor was caused by service. His service treatment records did not contain complaints, treatment, or diagnosis for such conditions and there was too great a gap between service and his age-related progressive symptoms of joint and muscle pain. It was additionally noted that the Veteran had been employed in a sedentary position. VA osteomyelitis examination in April 2021 included a diagnosis of osteomyelitis of the right knee (resolved). A date of diagnosis in 2006 was provided. Although the examiner, Y.J., M.D., provided an opinion relating the disorder to service, the opinion appears to have been based upon an erroneous assumption that service connection had been established for arthritis of the hands, osteomyelitis, bilateral torn rotator cuffs, and bilateral knee conditions with arthroscopic surgery. In a subsequent addendum opinion Dr. Y.J. responded to a request for clarification and found that "[t]here were no other etiologies for diffuse joint and muscle pain, OTHER THAN spondylolisthesis, arthritic pain in the hands, pain associated with osteomyelitis, bilateral torn rotator cuffs, and arthroscopic surgery due to a knee disability in both knees." Based upon the evidence of record, the Board finds that a disability manifested by diffuse pain of the joints and muscles other than pain associated with spondylolisthesis, arthritis of the hands, osteomyelitis, bilateral torn rotator cuffs, and arthroscopic surgery due to a knee disability in both knees was not manifest during active service and that the preponderance of the evidence fails to establish that a present disability is etiologically related to service or a service-connected disability. Although the September 2018 and February 2020 statements of the Veteran's private primary care physician may be construed as relating chronic pain and multiple sequelae to a spinal injury during service in 1965, the specific secondary disabilities possibly attributable to the present appeal have been adjudicated by VA decisions that have become final and the Veteran has not requested that these claims be reopened. The Board notes that Dr. P.L.G. did not provide a diagnosis of a specific chronic pain disorder distinguishable from the service-connected major depressive disorder nor any diagnosis of a specific disability. As such, the matter remaining for appellate review "a disability manifested by diffuse pain of the joints and muscles" may only be addressed on a direct service connection basis or on a secondary service connection basis as proximately due to the established service-connected disabilities of spondylolisthesis and major depressive disorder. The Board finds that the overall evidence of record is persuasive that a specific disability manifested by diffuse pain of the joints and muscles was not manifest during active service. Nor is any disease for which presumptive service connection may be established, such as arthritis, shown to have been manifest within one year of the Veteran's separation from active service. It is significant that the Veteran has not asserted and that the evidence does not otherwise show that a continuity of symptomatology is related to a presumptive service connection disease. The Board finds that the August 2020 VA medical opinion and the April 2021 VA addendum opinion are persuasive that no present disability exists that can be related to service or to an established service-connected disability that is not attributable to an adjudicated disability, including as due to a functional impairment as a result of pain alone. In essence, these opinions demonstrate that the Veteran's chronic joint and muscle pain is related to known disabilities and injury and disease diagnoses for which service connection has been specifically established or specifically denied. The examiners are shown to have reviewed the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Although in a February 2020 statement Dr. P.L.G. asserted that the Veteran had experienced multiple sequelae as a direct effect of his spinal injury in 1965 including bilateral hernia repairs, no specific comments were provided indicating how bilateral hernia repairs might be related to the present issue on appeal. The Board finds that a specific service connection claim for bilateral hernia repairs has not been raised and that an adjudication of any such claim is not shown to be inextricably intertwined with the issue on appeal. VA claims are inextricably intertwined when a decision on one could have a "significant impact" on the other. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177-78 (2016). The Board further finds that the April 2021 positive VA nexus opinion of Dr. Y.J., M.D. relating a diagnosis of osteomyelitis to service is discounted entirely. See Monzingo, 26 Vet. App. at 107. The opinion is shown to have been based upon an erroneous assumption that service connection had been established for arthritis of the hands, osteomyelitis, bilateral torn rotator cuffs, and bilateral knee conditions with arthroscopic surgery. The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. Consideration has also been given to the Veteran's personal assertions that he has a disability manifested by diffuse pain of the joints and muscles other than pain associated with spondylolisthesis, arthritis of the hands, osteomyelitis, bilateral torn rotator cuffs, and arthroscopic surgery due to a knee disability in both knees as a result of service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue is not a matter that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In conclusion, the Board finds that service connection for a disability manifested by diffuse pain of the joints and muscles other than pain associated with spondylolisthesis, arthritis of the hands, osteomyelitis, bilateral torn rotator cuffs, and arthroscopic surgery due to a knee disability in both knees is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.