Citation Nr: 22013335 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-36 713 DATE: March 9, 2022 ORDER 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 right knee disability is denied. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's bilateral shoulder disability began during active service, or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that the Veteran's bilateral knee 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 shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. In June 2019 and July 2021, the Board remanded the matters for additional development. Now the matters are returned to the Board. The Veteran is seeking service connections for a bilateral shoulder disability and a bilateral knee disability. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). 1. Bilateral shoulder disability The evidence of record shows the Veteran's current diagnosis of degenerative arthritis of both shoulders. See e.g., November 2019 Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). Thus, the Veteran has a current bilateral shoulder disability for service connection purposes. As to the in-service incurrence of a shoulder condition, the Board notes that the Veteran's service records do not contain any complaints, diagnosis, or treatment related to a shoulder condition. The November 2019 VA examiner opined that the Veteran's bilateral shoulder disability is less likely than not incurred in service. The examiner provided that the evidence does not show any shoulder condition in service. An additional medical opinion by a VA orthopedist was obtained in November 2021. The November 2021 examiner also provided a negative etiology opinion for the Veteran's bilateral shoulder disability. The examiner noted that the Veteran's service treatment record (STR) does not show shoulder injury or complaints, and the November 1969 separation examination showed no shoulder abnormalities. The examiner noted that the first documentation of record regarding shoulder pain was from June 19, 2003, which refers to the Veteran experiencing shoulder pain after a motor vehicle accident on June 6, 2003. The examiner provided that the real cause of the Veteran's shoulder pain was the June 2003 motor vehicle accident, which was more than 30 years after his service. The Board finds the November 2021 medical opinion to be competent and credible evidence and assigns high probative weight as the orthopedist rendered the opinion after a review of the Veteran's records. The evidence of record also includes a treatment record from June 2003, which indicates that the Veteran complained of shoulder and back pain due to a car accident that took place 13 days prior. See also February 23, 2005 Private Treatment Note (the Veteran reported neck, shoulder, and back pain secondary to a car accident in June 2003). The Veteran reported during the November 2019 VA examination that he had experienced bilateral shoulder pain in service after doing physical training and ruck marches with 120-pound gear. However, while the Veteran is competent to report symptoms of his shoulders, he is not capable of opining on matters requiring medical knowledge such as finding a medical nexus between his in-service shoulder pain and the current bilateral shoulder disability. See Layno v. Brown, 6 Vet. App. 465, 469-71 38 C.F.R. § 3.159(a)(2) (2020); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). Thus, the Board cannot assign significant probative weight to the Veteran's lay assertion. The Board also acknowledges that the Veteran stated in the March 2014 Notice of Disagreement that he was exposed to Agent Orange and asbestos in service. However, the Veteran did not provide any details as to how and when his contended exposures took place. In this regard, the Board notes that the Veteran's service records do not show service in the Republic of Vietnam, or any evidence of Agent Orange or asbestos exposures during his active duty service. Based on the above, the Board finds that the evidence of record persuasively weighs against finding that the Veteran's bilateral shoulder disability began during active service, or is otherwise related to an in-service injury or disease. As such, benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for right and left shoulder disability is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. Bilateral knee disability The Veteran has a bilateral knee disability for service connection purposes as the evidence shows a diagnosis of degenerative arthritis of both knees. See e.g., November 2019 Knee and Lower Leg Conditions DBQ. However, the Veteran's STR does not contain any complaints, diagnosis, or treatment related to a knee condition. The November 2019 examiner provided a negative etiology opinion based on the lack of documentation of any in-service knee condition. The November 2021 examiner also opined that the Veteran's bilateral knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran's STR, including the November 1969 separation examination, did not include knee injury or complaints. The examiner pointed out that the first documentation of record of knee pain was from October 2002. The examiner concluded that there is no evidence to support the Veteran's claim of his bilateral knee arthritis having its onset in service. The Board finds the November 2021 medical opinion to be competent and credible evidence and assigns a high probative weight as the examiner rendered the opinion after a review of the Veteran's records. To the extent that the Veteran has asserted that his knee disability is due to his in-service physical training and ruck marches with 120-pound gear, the Board finds that the Veteran's lay assertion is not entitled significant weight as the Veteran is not capable of opining on matters requiring medical knowledge. See Routen v. Brown, 10 Vet. App. 183, 186 (1997). Moreover, a February 2005 private treatment record indicates that the Veteran was experiencing bilateral knee symptoms while he was working on rough terrain as a railroad switchman. At the time, the Veteran denied any specific prior knee injuries, but provided that his knees were acting up more frequently over time. Based on the above, the Board finds that the evidence of record persuasively weighs against finding that the Veteran's bilateral knee disability began during active service, or is otherwise related to an in-service injury or disease. As such, benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for right and left knee disability is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.