Citation Nr: 22014477 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-43 322 DATE: March 14, 2022 ORDER Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for a right knee condition is denied. FINDINGS OF FACT 1. A chronic disability of the right shoulder was not shown in service or within a year of service discharge; and, the evidence weighs against a finding that the Veteran's currently diagnosed shoulder disability is related to his active service. 2. A chronic disability of the right knee was not shown in service or within a year of service discharge; and, the evidence weighs against a finding that the Veteran's currently diagnosed right knee disability is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 2. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to January 1972, with combat service in the Republic of Vietnam during the Vietnam War. This matter initially came before the Board on appeal from a November 2015 rating decision. The Veteran participated in a videoconference hearing before the undersigned in May 2020, and a transcript is in the record. In August 2020, the Board denied the Veteran's claim for service connection, and the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a May 2021 Joint Motion for Remand (JMR), the Court vacated the Board's August 2020 decision, noting, in pertinent part, that the Board erred by relying on an inadequate VA examination dating July 2017. The matters were remanded by the Board in October 2021. The Veteran underwent VA examinations in December 2021. After reviewing the exam reports and medical opinions, the Board finds that substantial compliance is established with the remand directives pertaining to the service connection claims. Service Connection 1. Entitlement to service connection for a right shoulder condition 2. Entitlement to service connection for a right knee condition The Veteran contends his current right shoulder and right knee conditions are related to carrying and lifting 100 to 200-pound shells while in-service as a field artilleryman Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d) are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, the VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). However, to establish service connection, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. The Veteran has been diagnosed with arthritis and bursitis of the right shoulder, and degenerative arthritis of the right knee. The first element of service connection is met for both claims. As for Shedden element two, service treatment records are negative for complaints, treatment, or diagnosis of a right shoulder or right knee disability. The Veteran has credibly alleged that he injured his right shoulder and right knee while operating field artillery during combat. Accordingly, the Veteran is entitled to the combat presumption and the second Shedden element has been satisfied. The outstanding question is whether an etiological relationship is established between the Veteran's current disabilities of the right shoulder and right knee and the in-service injuries/disabilities. The Veteran's separation examination did not indicate any shoulder or knee conditions, and the Veteran's extremities were noted to be normal upon separation. Such tends to weigh against a finding the presence of a chronic injury/disability existing at the time of service discharge. The evidence of record also fails to reflect a history of complaints, treatment, or diagnosis of a right shoulder and/or right knee disability within one year of service or for many years thereafter. The contrary is shown. Notably, when the Veteran filed a claim for service connection for tinnitus and a back injury in August 1994, the claim and the corresponding evidence do not contain complaint of right knee or right shoulder pain or disability. Additionally, a July 1993 examination indicates the Veteran's extremities were within normal limits. At a November 2013 doctor's visit, the Veteran reported right knee pain that started the day before. The Veteran reported no cause, no trauma, but that the knee hurts to walk and clicks/crackles. The Veteran was afforded a VA examination in July 2017. However, the parties to the Joint Remand found that the examination report was inadequate as it relied on a lack of in-service evidence of a shoulder or knee disability without affording the Veteran the combat presumption. The findings of that examination will thereby no be discussed further. The Veteran was afforded another VA examination in December 2021 to address the etiology of his right shoulder and right knee disability. The examiner indicated that the Veteran had provided a consistent statement pertaining to in-service "achy knees and shoulders", and that his in-service combat history (carrying and lifting heavy munitions" supported that history. However, it was also noted that the Veteran's separation examination did not indicate pain or complaints of either the shoulders or knees, and that there was more than 40 years between separation and documented complaints of either knee pain or shoulder pain. The examiner emphasized that the diagnosis of arthritis and bursitis was not made until August 2015, which was 43-years after service. The positive medical statements (addressed below) were referenced by the examiner and were noted to be based only on subjective evidence. The examiner indicated that the objective evidence of record did not support a 40-year history of chronic right shoulder or right knee problems. Citing to that evidence and a review of current medical literature, the examiner ultimately determined that it was less likely than not the Veteran's right knee and right shoulder disabilities were related to his military service, including to carrying and lifting 100 to 200-pound shells while service as a field artilleryman. Favorable evidence of a causal relationship between the Veteran's military service and his current right shoulder and right knee disability includes several letters from his private physicians. In an August 2015 letter, Dr. D.W.G. opines the Veteran's right shoulder and knee disability stem from carrying 100 to 200-pound artillery shells and marching during physical training during military service. May 2016 and September 2016 letters from Dr. S.J.D. similarly opine that marching and heavy lifting in the military would cause cumulative trauma to the right knee and this cumulative trauma resulted in the Veteran's right knee arthritis and eventual knee replacement. After reviewing the evidence of file, the Board finds the weight of the evidence is against a finding that the Veteran's right shoulder and right knee disabilities had their onset in-service, or are otherwise related to military service, including heavy lifting and marching. The Board places great weight on the December 2020 VA examiner's opinion that the Veteran's right shoulder and right knee disability was not related to the reported in-service military stressors, because the opinions were offered following a physical examination of the Veteran and a full review of the medical evidence of record. This opinion is consistent with the evidence of record and clearly explains its conclusion. The opinions of Dr. D.W.G and Dr. S.J.D. are afforded reduced probative value as they do not indicate a review of the complete medical record including the Veteran's service treatment records. While failure to review the claims file is not fatal to the opinion (see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008)), consideration of the relevant history is a factor in assessing the probative value of medical opinions. The opinions rely on the Veteran's assertions that his right shoulder and right knee disabilities had their onset in-service without addressing the contrary evidence, including the separation examination and post-service examinations which indicate normal extremities and do not contain reports of right shoulder or right knee issues. Neither doctor addressed the above-discussed inconsistencies between the Veteran's reported continuity of symptoms since service and the findings of normal extremities for many years after separation. Such exclusive reliance on the Veteran's statements without regard for the other evidence of record detracts from the probative value of the conclusions. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise is not probative). To the extent the Veteran believes his right shoulder and right knee disabilities are related to lifting heavy shells and marching in-service, the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with examinations based in part on the competency of those observations. Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing symptoms such as pain. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a shoulder or knee disability, the issue of causation of such medical conditions is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's right shoulder and right knee disabilities are related to his service, the Board affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by medical professionals and concerned the Veteran's orthopedic system, the internal functioning of which is not readily perceivable by the use of a person's senses. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his right shoulder and right knee disabilities, and finds that he has not done so. The Veteran's separation examination was silent as to issues with the Veteran's knees or shoulders; however, the Veteran noted other issues. In July 1993 the Veteran's extremities were noted to be within normal limits and in August 1994 the Veteran filed a claim for service connection, but did not mention issues with either his knees or his shoulders. In November 2013, decades after his separation, the Veteran reported recent onset of right knee pain. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). While the Veteran has stated that he has experienced symptoms associated with his right knee and right shoulder since service, the Board finds these statements lack credibility. The assertions are inconsistent the evidence of record, including the Veteran's own account on his separation examination, such inconsistency detracts from the credibility and probative value of his accounts. The medical nexus element cannot be met via a continuity of symptomatology. In sum, the nexus element for service connection has not been met. The weight of the evidence is against granting service connection, and the claims are denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.