Citation Nr: 21041694 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-23 538 DATE: July 9, 2021 ORDER Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a right elbow disability is denied. Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for a right shoulder disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right hip disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's right elbow disability began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran's right wrist disability began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the Veteran's right hand disability began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that the Veteran's right shoulder disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right elbow disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right wrist disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right hand disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right shoulder disability are not 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 March 1983 to July 1986. These matters come before the Board following a July 2020 Joint Motion for Partial Remand (JMPR) from the Court of Appeals for Veterans Claims (CAVC). The Board notes that the Veteran has additional claims pending at the Board including entitlement to an increased rating for left knee arthritis and entitlement to an increased rating for left great toe amputation. These claims will be addressed in a separate, forthcoming Board decision. Legal Criteria Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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, 1167 (Fed. Cir. 2004). 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). Certain chronic diseases such as arthritis shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for arthritis), 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical nexus opinion) apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is among the diseases listed in section 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis In an April 2019 brief, the Veteran's representative asserts that the Veteran is entitled to service connection for arthritis of the right hip, elbow, wrist, hand and shoulder because theses disability began in 1986, after a trailer fell on the Veteran's left foot requiring amputation of the left first toe. The Veteran reports symptoms of ongoing pain in each of these extremities since his military service. Notwithstanding the contentions of record, for the reasons discussed below, the preponderance of the evidence of record weighs against finding that the Veteran is entitled to service connection for his right hip, elbow, wrist, hand, and shoulder disabilities. To warrant service connection, the evidence of record must show that there is a current disability, an in-service injury and a nexus or etiological relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). March 2021 VA examinations establish current disabilities of right hip strain, intraosseous cyst of the proximal hamate of the right wrist, right hand arthritis and right shoulder arthritis. Notably, the Veteran's March 2021 VA examination for his elbow does not indicate that the Veteran has a right shoulder disability. The examination notes that the Veteran's right elbow does not result in a functional impact on his ability to perform any type of occupational tasks. However, treatment records show that the Veteran has reported some elbow pain and during his March 2021 VA examination the Veteran reported functional loss including not being able to lift heavy objects as a result of his right elbow pain. Similarly, June 2018 VA treatment records note that the Veteran reported an inability to lift more than 10 to 15 pounds due to elbow pain. Consistent with the Veteran's statements, a June 2018 VA treatment letter notes that the Veteran can work with restrictions, including not lifting over 10 to 15 pounds. Pain may constitute a disability if it reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, resolving reasonable doubt in favor of the Veteran and based on the evidence, the Veteran's has right elbow pain which causes functional impairment and therefore constitutes a disability. Thus, the record establishes that the Veteran has current right hip, elbow, wrist, hand, and shoulder disabilities. However, the probative evidence of record weighs against finding that the Veteran's disabilities are a result of an in-service injury or otherwise related to the Veteran's military service. In service, a January 1983 pre-enlistment examination does not note any right hip, elbow, wrist, hand, or shoulder abnormalities. Consistent with the Veteran's contentions, service treatment records establish that the Veteran suffered a crush injury in October 1985, which resulted in amputation of the left great toe. However, service treatment records do not show that this injury resulted in pain or other abnormalities of the right hip, elbow, wrist, hand, or shoulder. The Veteran's service treatment records do not contain any complaints or treatment related to the Veteran's right hip, elbow, wrist, hand, or shoulder. Further, the Veteran's January 1986 report of medical examination, prior to his July 1986 discharge from service, does not note any abnormalities other than the Veteran's left great toe amputation. Post-service, in an initial vocational rehabilitation questionnaire in September 2010 the Veteran reported nonservice connected disabilities of asthma, allergies and history of depression. He also noted current symptoms of toe swelling and left knee swelling but did not note any symptoms, diagnoses or pain related to his right hip, elbow, wrist, hand or shoulder. Additionally, the Veteran was afforded VA examinations in October 2013 that did not show any abnormalities of the right-side extremities. The Veteran's October 2013 hip and thigh VA examination noted no abnormalities of the right hip and the Veteran retained normal range of motion. Similarly, the Veteran's October 2013 VA examinations for his elbow, wrist, hand and shoulder did not note any abnormalities and the Veteran maintained normal range of motion with no evidence of pain on range of motion. With respect to the Veteran's right hip, October 2014 VA treatment records note that while the Veteran has bilateral knee arthritis, his hips are fine. A July 2017 scan of the Veteran's hips and spine showed normal bone density. Similarly, with respect to the Veteran's right elbow, the record shows no complaints or treatment for right elbow pain. October 2013 VA treatment records notes that the Veteran has joint pain attributed to arthritis, but the Veteran retained normal right elbow flexion and extension. Notably, during his 2021 VA examination the Veteran denied being treated for elbow pain, denied any urgent care visits for elbow pain, but reported not being able to lift over 15 pounds as a result of his pain. With respect to the Veteran's right wrist, treatment records show the Veteran's subjective reports of a right wrist excision in the 1980s, however the record does not show any ongoing treatment for right wrist disability. During his March 2021 VA examination the Veteran reported that he had a tight feeling in the right wrist with range of motion, the Veteran reported having bilateral wrist pain since the 2000s. On examination, the Veteran's right wrist range of motion was normal. However, March 2021 imaging notes intraosseous cyst of the proximal hamate. With respect to his right hand, during his March 2021 VA examination for his hand the Veteran reported hand pain since the 2000s but denied complaining about hand pain to his primary care providers. Consistent with the Veteran's contentions, the record does not show any treatment for right hand pain. With respect to the Veteran's right shoulder, medical evidence of record notes that the Veteran complained of right shoulder pain in May 2013 and was noted to have pain with range of motion at 150 degrees. In October 2013 the Veteran reported repeatedly dislocating his left shoulder in service, he did not report any right shoulder dislocation. VA treatment records note a diagnosis of right shoulder pain in November 2013. July 2017 VA treatment records note the Veteran's initial complaint of right shoulder pain. The Veteran rated his pain as a 9/10 and reported having pain for the past months. During the March 2021 VA examination, the Veteran demonstrated some reduced range of motion with flexion to 130 degrees, abduction to 140 degrees and internal rotation to 80 degrees bilaterally. The Veteran also reported not being able to lift more than 10 to 15 pounds. Following the March 2021 VA examination, the examiner opined that the Veteran's right hip, elbow, wrist, hand and shoulder disabilities are less likely related to military service. As supporting rationale, the examiner asserted that per the Veteran, right wrist and hand pain began in 2000's, many years after military service and March 2021 imaging shows findings associated with psoriatic arthritis. With respect to the right shoulder, the examiner noted that the Veteran reported that he started having right shoulder dislocation in early 90's, after military service with July 2017 imaging showing mild degenerative arthritis, many years after service. The Veteran's right elbow began in 90's, after military service and the Veteran's right hip pain began in 90's well after service with October 2014 imaging noting no joint abnormality. The Board affords probative weight to the VA examinations of record as they are based on the evidence of record as well as the Veteran's lay statements. Moreover, the examinations are consistent with and supported by the medical evidence of record which does not show any in-service injuries related to the Veteran's right hip, elbow, wrist, shoulder and hand and no injuries to these extremities until after military service. Ultimately, the preponderance of the probative evidence weighs against finding that the Veteran's right hip, elbow, wrist, hand and shoulder disabilities were incurred in service. The Veteran is competent to report his symptoms. 38 C.F.R. § 3.159. However, the Veteran's lay statements are not supported by the evidence of record which notes no complaints of these disabilities in service, and no complaints of or treatment for any of these disabilities prior to May 2013. Crucially, any recent assertions of symptoms beginning in service and continuing until now are contradicted by other evidence of record. To that end, the Veteran has reported previously that symptoms did not begin until after service. As such, there is no credible evidence that the Veteran has experienced symptomatology related to the disabilities at issue here since service. Based on this collective body of evidence, the Board finds that any statements as to continuity of symptoms referable to the Veteran's right side disabilities since service are not credible based on the record, as a whole, including no mention of this for several decades following service. See Cartright, 2 Vet. App. at 25 (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) Relatedly, the diagnosed arthritis disabilities of the right hand and right shoulder do not qualify for service connection as chronic disabilities under 38 C.F.R. § 3.303(b). To that end, as discussed above, there is no credible evidence of continuity of symptomatology for the arthritis disabilities. The Board concludes that the weight of the probative evidence is against a finding that service connection is warranted. The reasoned opinion of the 2021 VA examinerwhich is against the claimsis entitled to significant probative weight as the examiner offered a clear opinion supported by a thorough rationale. While the Veteran has contended that his disabilities are related to service, the Board finds the VA examiner's opinion is entitled to more probative weight, as the etiology of the musculoskeletal disabilities at issue here are beyond the ken of a layperson. (Continued on the next page) In light of the above, the Board concludes that a preponderance of the evidence is against the claims for service connection and, accordingly, the claims must be denied. Michael Sanford Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.