Citation Nr: 25004877 Decision Date: 04/10/25 Archive Date: 04/10/25 DOCKET NO. 17-33 746 DATE: April 10, 2025 ORDER Entitlement to service connection for a left shoulder disorder is granted. Entitlement to service connection for a lumbar spine disorder is granted. Entitlement to service connection for a left knee disorder is granted. Entitlement to service connection for a right knee disorder is granted. FINDINGS OF FACT 1. The competing lay and medical evidence is in approximate balance regarding the credibility of the Veteran's lay evidence regarding onset and chronicity of left shoulder strain, lumbar spine strain, and bilateral knee strains. Thus, the Board resolves the benefit of the doubt in favor of the appellant to find it is credible. 2. The competing lay and medical evidence is in approximate balance regarding whether the Veteran's shoulder strain, lumbar spine strain, and bilateral knee strains began during active service. Thus, the Board resolves the benefit of the doubt in favor of the appellant. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for lumbar spine disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left knee disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right knee disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2009 to April 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office. In March 2024, the Board issued a decision that denied service connection for left knee disorder, right knee disorder, left shoulder disorder, and lumbar spine disorder. The Veteran appealed the denial to the Court of Appeals for Veterans Claim (CAVC). In an October 2024 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the March 2024 decision for compliance with the instructions in the JMR. 1. Entitlement to service connection for a left shoulder disorder is denied. 2. Entitlement to service connection for a lumbar spine disorder is denied. 3. Entitlement to service connection for a left knee disorder is denied. 4. Entitlement to service connection for a right knee disorder is denied. The Veteran seeks service connection for left shoulder, bilateral knee and lumbar spine disabilities. He asserts that the rigorous rucking and marching in service took a toll on his knees and back. His duties on the Stryker team included frequent jumping in and out of vehicles. He reports that he incurred a left shoulder injury during obstacle course training. He fell on his shoulder and felt like his shoulder popped out. He reports that he began to experience left shoulder, bilateral knee and back pain in service. Duty to Assist In October 2024, CAVC vacated the Board's March 2024 decision on the grounds that the Board failed to provide adequate statement of reasons or bases concerning whether the duty to assist had been satisfied by ensuring that all medical records were obtained and associated to the Veteran's record. The Veteran's DD Form 2963 Service Treatment Record (STR) Transfer or Certification dated September 4, 2013, certified that no further records exist and the STR for the Veteran was complete. In September 2021, the Board remanded the claims because "the potential exists that the Veteran's service treatment records were mistakenly co-located with his OMPF [official military personnel file]." The Board asked the AOJ to Request from the National Personnel Records Center (NPRC), or any other appropriate source, the Veteran's complete official military personnel file (OMPF) and service treatment records (STRs), to specifically include a PIES 050 request, to determine whether any additional service records are available. If any requested records are deemed unavailable, the record should be annotated to reflect such and the Appellant notified. A review of the claims file shows that the AOJ made a request in September 2021. The search results note, "You have requested a file that is currently moving from station 391 Records Center and Vault (RCV) to scanning vendor, to be scanned into VBMS. This file has not been received by the vendor yet, but we will prioritize it as soon as it is received by our system." A March 2022 VA memorandum notes that there had been a "misdirected development." The memorandum explains that the Veteran served from January 2009 to April 2013. STRs would not be held at NPRC. They only have Army records from October 16, 1992. A DPRIS request was made and received on August 13, 2015. Records Management Center (RMC) provided their STRs on September 13, 2013. "All records in custody have been received." In March 2022, the AOJ sent a letter to the Veteran that there are no other STRs associated with his file and that further attempts to obtain records would be unsuccessful. "We have requested and received all records the Defense Personnel Records Information Retrieval System and the Records Management Center have." In May 2022, to comply with the Board's remand directive, the AOJ made a PIES request for all active-duty inpatient clinical records, to include clinics and hospitals, from January 2009 to November 2009. The response to this request asked for the specific treatment facilities to be identified. An August 2022 PIES/DPRIS response notes that the "request cannot be submitted because the RAD date is after July 01, 2002. Please submit your request via DPRIS web application." Notably, the Veteran has not identified any treatment facilities for his shoulder, knees, or back, nor has he asserted that he was treated for any of these during his deployment. The Board finds that there has been substantial compliance with its prior remand directive. As noted above, DPRIS had already searched and found no additional records. Further, the AOJ had made a formal finding that no other STRs existed and that further searches would be futile. The Veteran was properly notified by letter that any other records were unavailable. Remanding again to request nonexistent records would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that remand is unnecessary where it would impose additional burdens on the Board with no benefits flowing to the veteran). The Board finds that the duty to assist in obtaining service records was met by the many efforts to identify whether any service records were missing and the formal finding that there are no additional records beyond what has been associated with the claims file. Significantly, the Veteran has not identified any specific records that he believes are missing. In a November 2022 VA examination, the Veteran reported he hurt his shoulder in 2009 during a field exercise, sought medical attention and was given ibuprofen to take as needed. He reported his knee pain and back pain onset during field exercise PT and ruck marching, and he sought medical attention and was given ibuprofen to take as needed. His reports center on wear-and-tear to his joints due to his duties throughout his service from activities like rucking, jumping in and out of vehicles, physical training, etc. His shoulder injury is claimed to also be related to a fall during obstacle course training where he felt it "pop out." None of these activities or injuries were asserted as occurring on deployment to Iraq. However, the Veteran's attorney has argued both that he did not report these injuries because he did not want to lose his Ranger eligibility, and also that the Veteran "may well have complained of his back, knee, and shoulder problems while deployed (on what were unquestionably very challenging combat deployments)." In the same brief, the attorney argues that prior examinations and opinions are inadequate because the examiners were not advised "that STRs were not complete, and, in particular, that STRs from [the Veteran's] combat deployment were missing." The Board has not previously found that any STRs are missing. In fact, the JMPR is based in part of the lack of such a finding. The attempts to identify outstanding records have consistently shown that all records are already associated with the file. While the Veteran's attorney discusses missing combat records, he has not identified why he believes there are deployment records, nor does he reconcile his conflicting arguments about their existence. The Veteran has not reported any injuries as occurring in combat or during his 11-month, 13 day deployment to Iraq. As described in the next section, his post-deployment assessments consistently deny any injury, wound, or physical hurt during his deployment. Based on the foregoing, the Board concludes that the record is complete. Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The evidence shows that the Veteran has current diagnoses of left shoulder, bilateral knee and lumbar spine strains. This establishes the current disability element of service connection. The Veteran is not diagnosed with arthritis of the left shoulder, bilateral knees, or lumbar spine. Strains are not chronic disabilities that may be presumed related to service under 38 C.F.R. §§ 3.307 or 3.309. Consequently, service connection may not be established by continuity of symptomatology under 38 C.F.R. § 3.303(b). Therefore, the only means by which service connection may be established is with competent and credible nexus evidence relating the current strains to an injury, disease, or disability in service. The Veteran's October 2008 enlistment examination is negative for issues regarding his left shoulder, bilateral knees and lumbar spine, establishing that he is presumed sound at entry for these claims. The Veteran's available STRs are silent for complaints and symptoms of the left shoulder, right knee, left knee and/or lumbar spine. The Veteran was given additional examinations and/or health assessments in January 2009, August 2010, January 2011 and May 2012 in which neither complaints nor symptoms of pain or injuries were reported for the left shoulder, bilateral knees, or lumbar spine. In July 2010 and August 2010 post-deployment questionnaires (for September 2009 to August 2020 deployment to Iraq) he rated his health as excellent, rated his health as "about the same as before I deployed," and indicated that physical health problems did not make it difficult at all to do work or other regular daily activities. He denied being wounded, injured, or otherwise physically hurt during his deployment. He affirmatively checked "no" when asked about back pain, muscle aches, and swollen, stiff, or painful joints. In a January 2011 post-deployment re-assessment questionnaire, he rated his health as excellent, rated his health as "somewhat better now than before I deployed," and indicated that physical health problems did not make it difficult at all to do work or other regular daily activities. He again denied being wounded, injured, or otherwise physically hurt during his deployment. In April 2012 the Veteran was seen for a right ankle injury and x-rays showed no abnormality, fracture or dislocation. In a May 2012 pre-deployment questionnaire, he reported being in excellent health and denied any medical issues. In a November 2012 Behavioral Health treatment record the physical findings showed his right index finger was injured during a training exercise and was still hurting, but there were no other musculoskeletal complaints or findings, other than normal sitting posture. A Chronic Care Flowsheet produced in February 2013 listed some illnesses for which the Veteran was seen or treated during service. It lists occupational problems (Feb 20, 2013), tinea cruris (Jan 23, 2013), various psychiatric diagnoses (December 2010 - November 2012), foot pain and acute upper respiratory infection (March 2009), sore throat and common cold (January 2009). There is no mention of any back, knee, or shoulder complaints or treatment. At his February 2013 behavioral health separation examination, no musculoskeletal complaints were reported or findings made, other than normal sitting posture. In sum, at every opportunity to report back, shoulder, or knee symptoms, the Veteran actively denied any injuries, or reported injury to other body parts. A June 2015 Primary Care Initial Evaluation shows that the Veteran reported a chronic pain in his left shoulder and low back pain. He reported a back and left shoulder injury in military service. A June 2015 left shoulder x-ray reveals no acute fracture. The soft tissues demonstrate no significant abnormalities. X-ray of the lumbar spine revealed that the vertebral body heights and intervertebral disk spaces were all preserved. No definite sclerotic or lytic bony changes were appreciated. No acute findings were seen for the left shoulder or lumbar spine. The Veteran was afforded a VA examination in November 2022. He reported that he begun to experience left shoulder, bilateral knee, and back pain in service. The examiner diagnosed left shoulder strain, bilateral knee strain and lumbar spine strain. In December 2022, the examiner opined that the disability is less likely than not incurred in or caused by left shoulder, bilateral knee and lumbar spine injuries during service. The examiner provided the rationale that the Veteran never reported a left shoulder pain, bilateral knee pain or lumbar spine pain until 9 years after service. For this reason, the examiner found that a nexus could not be established. As noted above, the Veteran reported a left shoulder and low back pain in June 2015, which was 22 months post separation from active service. Thus, the Board found the November 2022 opinion was based on an inaccurate factual premise and is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate or incomplete factual premise is not probative). An addendum opinion was obtained in January 2023. The examiner opined that the Veteran's right knee disability was less likely than not incurred in or caused by injuries during service. The examiner provided the rationale that the Veteran never reported or sought medical care for right knee pain. Another addendum was obtained in March 2023. The examiner opined that the Veteran's bilateral knee, left shoulder, and back disabilities were less likely as not incurred in or caused by knee, right shoulder, or back injuries during service. The examiner noted that the Veteran's military occupational specialty (MOS) caused him to ruck march frequently as well as jump out of vehicles. The examiner provided the rationale that while the Veteran has a diagnosis of musculoskeletal injuries, he did not receive these injuries while in service since there was no initial care until many years post service. In June 2023, a VA examiner opined that the claimed lumbar spine condition and bilateral knees are less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that based on the available evidence, it is less likely than not that the claimed condition is due to service as there is a lack of substantiating evidence supporting a nexus between the current diagnosis of that lumbosacral strain and military service. Without diagnosis and chronicity during service, post-service event, illness, or injury is considered to be more likely etiology. The June 2023 VA examiner also opined that the claimed left shoulder is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran provided subjective data stating that the left shoulder condition was due to service activities such as lifting and fall injuries. The Veteran had no complaints or diagnosis of shoulder condition in service. The examiner notes that shoulder pain was reported in post service records from 2015, 2 years post separation. The Veteran had a diagnosis of shoulder strain in 2022 and 2023. Imaging of the shoulder was negative. The examiner explains that symptoms of strains can develop within minutes to hours after injury. There are no medical evidence notes that support the development of strain symptoms 2 years after injury. A nexus is not established. The June 2023 VA examiner provided an addendum opinion in July 2023. In July 2023, the examiner stated that there is no evidence that the Veteran's bilateral knee strain, lumbosacral strain, and left shoulder strain were diagnosed during active duty. Symptoms of strains appear within hours to days after injury. The examiner explained that symptoms were noted to have occurred more than 2 years post separation, which is not congruent with the Veteran's description. In December 2023, a VA examiner opined that it is less likely than not that the Veteran's bilateral knee, left shoulder, and lumbar spine disabilities began during military service, within one year of discharge therefrom, or are otherwise the result of military service, including the Veteran's assertions regarding physical training, rucking, marching, and jumping in and out of vehicles. The examiner notes that a June 28, 2023 disability benefits questionnaire shows left knee strain, lumbosacral strain, and left shoulder strain diagnoses. The examiner notes the Veteran's reports of injuries in service due to rucking marching, intense physical training and MOS requiring jumping in and out of vehicles, but opined: However, evidence/record do not sufficiently demonstrate that current condition is caused by and continued from military service, including the Veteran's assertions regarding physical training, rucking, marching and jumping in and out of vehicles. STRs do not show frequent complaints and/or chronic knee pain, left shoulder pain and/or lumbar spine pain or disability while in active duty. Report of medical history on February 20, 2013, the Veteran checked "no" on knee troubles. No abnormal knee findings or diagnosis by examining physicians during separation examination. Per STR on January 4, 2009, Veteran denied musculoskeletal injuries of the lower extremity. Veteran stated, "I am in good health at this time". STR on March 14, 2009, recorded negative musculoskeletal symptoms. No muscle aches and no arthralgias. Physical examinations on November 14, 2012, and February 20, 2013, revealed normal musculoskeletal system. General bilateral setting and postures were all normal. STRs on May 15, 2012, and March 12, 2013, listed no chronic knee problem in the chronic problem list. Earliest record of chronic knee pain was on November 2, 2022. Continuity has not been established. The Board finds that the December 2023 opinion is very probative because it is based on an accurate interpretation of the record and cures deficiencies in the earlier opinions. Its rationale addresses the relevant evidence of record and provides a rationale that does not rely solely on the absence of contemporaneous medical records in service. The opinions, read together in context, are supported by a well-reasoned rationale, and importantly are consistent with the other evidence of record as addressed throughout the Veteran's appeal. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran's attorney argues in his October 2024 Appellate Brief that the December 2023 VA examiner was not advised that the STRs were incomplete and, in particular, the STRs from the Veteran's combat were missing, the Board notes that the examiner reviewed the record, to include the Veteran's VA e-folder, which documents a formal finding of unavailability of other records, and that further searches would be futile. No STRs had been determined to be missing, so there was no reason to inform the examiner of such. The October 2024 Appellate Brief argues in part, that the December 2023 VA examiner did not comply with the prior remand instructions and was otherwise inadequate. The attorney correctly notes that the examiner was asked to address the Veteran's contentions that he began having left shoulder, back, and bilateral knee pain during service. Specifically, the attorney argues that while the examiner acknowledged the Veteran's competent testimony that his duties in-service, including rucking, marching, intense physical training, and working in Stryker brigade where he had to jump into and out of vehicles, the examiner still improperly based their opinion on lack of in-service evidence of the injuries and a lack of contemporaneous records since service regarding the injuries. The attorney further argues that the December 2023 VA examiner's opinion is also based on the lack of reporting the condition in his separation examination. As noted above, the December 2023 VA examiner's rationale addresses the relevant evidence of records and provides a rationale that does not rely solely on the absence of contemporaneous medical records in service. Specifically, the examiner notes the numerous times where the Veteran denied musculoskeletal injuries and the countless records showing negative musculoskeletal symptoms to include negative findings during the Veteran's separation examination. As such, the Board finds that the December 2023 VA examiner's opinion was not solely based on lack of in-service evidence of the injuries and a lack of contemporaneous records since service regarding the injuries. As such, the Board finds that the December 2023 VA examiner substantially complied with the prior Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The competent medical evidence weighs against the Veteran's claim. Turning to the Veteran's lay evidence, the vacated decision found that the Veteran's assertions of knee, back, and shoulder strain beginning in service and continuing to the present were not credible, for several reasons. The Veteran is competent to report left shoulder, bilateral knee, and lumbar spine symptoms that are experienced or observed. The Board has no reason to doubt the Veteran's reports of physical training, rucking, marching, jumping in and out of vehicles, and heavy lifting. These are consistent with the circumstances of his service as an Infantryman and his deployment in Iraq. The Veteran reported that he was seen in service for knee and back pain and was given ibuprofen. This is not reflected in the STRs, despite the fact that the Veteran was seen for a number of other injuries and conditions. In particular, the Veteran's VA medical records show complaints and treatment for right ankle, foot pain, common cold, mental health, substance use, and concussion, but nothing related to the currently claimed left shoulder, bilateral knees and lumbar spine. STRs show the Veteran affirmatively denied musculoskeletal and back pain or injuries multiple times. The first complaints and objective evidence of a left shoulder and lumbar spine condition did not occur until June 2015, indicating an onset 22 months from his separation from active-duty service. The first mention of knee complaint is in March 2016 when he reported a slip and fall in the mud the night prior. He stated he could not walk because of the knee injury from fall. This indicates an onset nearly 3 years after separation and tied to a specific post-service injury. The Board has considered the Veteran's assertion that he was told that if he sought medical attention and got placed on a profile, it would endanger his Ranger eligibility. While this may be true, the Veteran still voluntarily sought treatment for other conditions to include, head injury, right ankle injury, mental health, and substance abuse, all of which would arguably affect his eligibility to be a Ranger. Yet, the Veteran still sought treatment for these injuries when he needed to. This calls into question the assertion that fear of losing Ranger eligibility prevented him from seeking treatment for or reporting any back, knee, and left shoulder complaints, or led him to repeatedly deny any current symptoms at periodic examinations for the entirety of his service. The foregoing raises some doubt about the Veteran's credibility regarding the onset and continuity of his disabilities. That said, the Board acknowledges the possibility that when field exercises are occurring, treatment of ibuprofen for pain could have been provided informally onsite and may not have resulted in a treatment record. Further, the Veteran is now service-connected for other injuries that he denied in his STRs, but were later found to have occurred, including stressors during his combat deployment and a head injury. This sets a precedent for the fact that the Veteran was indeed underreporting his symptoms and injuries. As a result, the Board finds that the evidence is in approximate balance to find the Veteran credible in his reporting of knee, back, and shoulder injuries beginning in service. The competent and credible lay evidence is in favor of the Veteran's claims. Finally, in the October 2024 Appellate Brief, the Veteran's attorney contends that the missing STRs are potentially from the Veteran's combat deployment. See 38 U.S.C § 1154 (b). The Board has found there are no missing records, but this does raise the combat presumption theory. Both 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), 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, 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. The Federal Circuit has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). However, in this case the Veteran himself never asserted that his knee, back, and shoulder injuries occurred during combat. Rather, he attributed them generally to wear and tear from field exercises, rucking, marching, PT, and heavy lifting. His shoulder injury in particular was reported as occurring in 2009, prior to his deployment. Therefore, the Board finds the combat presumption does not apply to this appeal. The Board finds that the competent and credible medical evidence weighs against the claims and the competent and credibly lay evidence weighs in favor of the claims. As a result, the Board finds that the competent and credible evidence is approximately balanced as to whether service connection is warranted. The benefit of the doubt doctrine applies. 38?U.S.C. §?5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The claims are granted.. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asare, Ama K. 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.