Citation Nr: 1307182	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO.  10-04 793	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for a low back disability, including especially a lumbar strain with radiculopathy and lumbar disc herniation.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to a disability rating higher than 20 percent for a left shoulder strain.

4.  Entitlement to a disability rating higher than 10 percent for right shoulder tendinitis.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel


INTRODUCTION

The Veteran had active military service from June 1979 to June 1982, from March 1990 to August 1991, and from October 1991 to July 1994.  He also had additional service in the Army National Guard.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In deciding these claims, the Board has considered the evidence in the Veteran's physical claims file as well as electronic ("Virtual VA") file.  More recently, instead of paper, VA has been transitioning to what ultimately will be an entirely virtual claims processing system.  This Virtual VA system a highly secured electronic repository used to store and review every document involved in the claims process.  The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits.


FINDINGS OF FACT

1.  All low back disability shown to be present during the pendency of this claim has not also been shown by competent and credible evidence to be related or attributable to the Veteran's active military service.

2.  He has not received a diagnosis of PTSD, so he has not established he has this claimed condition.

3.  Throughout the claim appeal period, the preponderance of the evidence weighs against finding that his left shoulder disability causes limitation of motion of his arm to 25 degrees from his side or to an even greater extent.

4.  Throughout the claim appeal period, the preponderance of the evidence also weighs against finding that his right shoulder disability causes more than painful or limited motion of a major joint or group of minor joints.


CONCLUSIONS OF LAW

1.  A chronic low back disability was not incurred in or aggravated by service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).

2.  It has not been shown the Veteran has the required DSM-IV diagnosis of PTSD, much less as a result or consequence of any traumatic event ("stressor") during or coincident with this military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012).

3.  The criteria are not met for a rating higher than 20 percent for the 
service-connected left shoulder disability.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5201(2012).

4.  The criteria also are not met for a rating higher than 10 percent for the 
service-connected right shoulder disability.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.71a, DC 5299-5024 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004).  Also, the timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

If, however, for whatever reason VCAA notice was not provided prior to initially adjudicating a claim, or, if provided, the notice was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant, not VA, bears the burden of proof of not only establishing there is a VCAA notice error but also, above and beyond that, of showing the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In a claim that originated as a claim for an increased disability rating, meaning the disability at issue already had been determined service connected in years past, so not concerning an initial rating, the VCAA requires that VA notify the claimant that to substantiate the claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect the worsening has on employment.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1278 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  The notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular claimant's circumstances; that is, VA need not notify a claimant of alternative DCs that may be considered or notify him or her of any need for evidence demonstrating the effect that the worsening of the disability has on the particular claimant's daily life.  Vazquez-Flores, 580 F.3d at 1278.  


Here, the Veteran was provided notice required under VCAA in February 2008, including Dingess notice as concerning the claims for service connection, so was advised additionally of the "downstream" disability rating and effective date elements of these claims in the event service connection for the claimed disabilities eventually is granted.  Moreover, after the letter was provided, he was afforded the opportunity to submit additional evidence and argument in response, and he did so.  Furthermore, the claims were thereafter readjudicated.  Therefore, the purpose of the VCAA notice was served.

VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  VA has also satisfied its duty to assist the Veteran under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.  Available service treatment records (STRs) and VA treatment records have been obtained and associated with the claims folder for consideration.  The Veteran was also provided VA compensation examinations in October 2002 and March 2008, which are found to be adequate for adjudication purposes since they, as necessary, depending on the particular claim, address diagnosis, etiology, and severity of the claimed disability.

The Board sees the Veteran failed to report for examinations scheduled for October 2009 and August 2012.  He has not explained why he failed to appear for those examinations and has not requested to have them rescheduled.  The Court has held that VA's duty to assist a Veteran in developing the facts and evidence pertinent to a claim is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  It is the responsibility of Veterans to cooperate with VA.  See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992).  


For these reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims.  The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence that has not been obtained.  No further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d).  Accordingly, the Board will address the merits of the claims. 

Legal Criteria and Analysis

I.  Service Connection

Service connection is granted for chronic disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing entitlement to direct service connection generally requires:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  Under § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Savage v. Gober, 10 Vet. App. 494-97 (1997); Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate:  (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the 
post-service symptomatology.  Savage, 10 Vet. App. at 495-96.

But in another decision since issued, Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011), the Federal Circuit Court held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  The claim involved was one for hearing loss and the appellant was arguing that the lower U. S. Court of Appeals for Veterans Claims (Court/CAVC) had failed to apply § 3.303(b) to the lay testimony that the Veteran had had hearing loss since his service in 1945.  However, the Federal Circuit Court held that continuity of symptomatology simply was not applicable because § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  The Federal Circuit Court explicitly rejected the appellant's argument that a dictionary definition of "chronic" should be used instead.  The key holding is:

We thus reject Walker's broader argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases.  Suggestions or holdings to the contrary in any decisions of the Veterans Court, and dictum to the contrary in our precedent, are incorrect and of no effect.

(emphasis added).


By way of background, VA's Office of General Counsel, Professional Staff Group II (PSG II), initially had argued that continuity of symptomatology had been properly considered by the RO and the Board.  However, the Federal Circuit Court, sua sponte, ordered supplemental briefing on whether § 3.303(b) applied to any conditions that were not recognized as "chronic" under § 3.309(a).

In its supplemental briefing, PSG II reviewed the regulatory history of the provision back to Roosevelt's Executive Orders under the Economy Act of 1933 and argued that Savage v. Gober, 10 Vet. App. 488, 498 (1997) was wrongly decided.  The Federal Circuit Court apparently agreed.

In any event, the evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).


In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

Conversely, laypersons equally have been found not competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (concerning a form of cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements).

A Veteran is competent to report what he/she can observe and feel through the senses.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

"Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, however, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative.  Buchanan, Rucker, and Layno.  The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases.  Buchanan at 1337.  The lack of contemporaneous medical evidence is also relevant; however, as mentioned the mere lack of such evidence generally may not constitute the sole basis for discrediting the lay evidence.  Id.

So after determining the competency and credibility of evidence, the Board must then weigh its probative value in relation to the other relevant evidence.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604  (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  In deciding claims, although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

II.  Disability Evaluations

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The  percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

Claim - Low Back Disability

The Veteran active military service from June 1979 to June 1982, from March 1990 to August 1991, and from October 1991 to July 1994.  He also had additional service in the Army National Guard.

His service, therefore, presumably involved active duty (AD), but also active duty for training (ACDUTRA) and inactive duty training (INACDTRA).

Active military, naval, or air service includes any period of AD or ACDUTRA during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d).

National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state.  "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor."  Allen v. Nicholson, 21 Vet. App. 54, 57 (2007).  

"Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401 , or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316 , 502, 503, 504, or 505. Id.  

So to the extent the Appellant is alleging that his disability is a result of injury or disease incurred or aggravated during his time in the National Guard, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110 , 1131 and 38 C.F.R. § 3.303(a).  Thus, to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., his periods of AD) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA if the claim for benefits is premised on that period of ACDUTRA.  Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998).

Similarly, in order for the Appellant to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury, though not disease, incurred or aggravated during his INACDUTRA.  See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).

Consider also that there is no presumption of soundness or aggravation for ACDUTRA and INACDUTRA service, only for AD, nor is there any presumption normally avaible for conditions considered chronic, per se, which manifest to the required compensable degree within a specified amount of time after service, usually one year.  See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010).


The Veteran filed his claim for a low back disability in December 2007.

His STRs show numerous reports of back pain, back strain, and back spasm.

He also complained of lower back pain during a VA examination in October 2002.

In a July 2003 VA treatment record, he stated that he had had back surgery in 1994, as related to work, but that he felt his multiple back strains in service during his physical training and parachuting had weakened his back, making him more susceptible to injury.

He had a VA compensation examination in March 2008 during which he reported lumbar pain.  He reported being a paratrooper in service and that he played basketball; he denied any specific accident or trauma but stated that he believed that over the years the repetitive microtrauma (of the military) took its toll.  He stated that his lumbar problems started at the time physical training (PT) was preformed.  He reported that he had a lumbar microdiskectomy in 2004 and noted that his current job required heavy lifting.  In pertinent part the examiner diagnosed lumbar strain and moderate degenerative disease at L5-S1.  The examiner opined "whether back condition stems from in service injuries is at least as likely as not caused by or a result of such repetitive microtrauma with an accumulative effect over the years.  Pain is the most limiting factor during such flare ups."

That March 2008 VA examiner opined that the Veteran's low back disability is related to his military service, well, at least as likely as not.  That examiner, however, did not review the claims file.  And while it is true that this, alone, is not determinative or dispositive of a medical opinion's probative value, it does have significance when evidence in the file, if considered, may have changed the outcome of the opinion because it would have revealed relevant other facts needing to be considered.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Here, most significant is the fact that, when recounting his medical history to this examiner, the Veteran never apparently mentioned the intercurrent low back injury he had sustained in 1994 or thereabouts as a civilian, so not while in service, and the surgery he resultantly had to undergo.  See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994) (holding that the examiner "must consider the records of prior medical examinations and treatment in order to assure a fully informed examination").  A medical opinion is only as good and credible as the history on which it is predicated, so if this history is inaccurate or, like here, at least incomplete, the probative value of the opinion declines as a consequence.  Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).  And while it is true the Board cannot disregard a favorable medical opinion solely on the rationale that it was based on a history provided by the Veteran, it is permissible to do this when this relied on history is not credible or fully presented.  See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006).

The net result of these failings, as mentioned, is that this opinion is insufficient reason to grant this claim because its probative weight has declined in value.  See Owens  v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence).

Also keep in mind the Veteran failed to report for VA examinations of his low back in October 2009 and August 2012.  As a result, no additional evidence or opinion was obtained regarding the etiology of his low back disability that, in turn, perhaps would have addressed the shortcomings of the opinion discussed above.  Thus, the evidence of record is insufficient to establish that he has a low back disability that is related to his active military service.

The Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  However, the Veteran is not competent to render an opinion concerning medical diagnosis or causation when, as here, the type of condition claimed is not a "simple" condition, so not the type that is readily amenable to mere lay comment regarding its diagnosis and etiology.  He therefore needs medical evidence supporting his claim, which, as it stands, he does not have enough of.  Jones v. Brown, 7 Vet. App. 134, 137 (1994).  There is no competent and credible, so not ultimately probative, medical evidence or opinion indicating his low back disability is related to his active military service.  Therefore, the Board concludes that the evidence in this case preponderates against the claim and the benefit of the doubt rule is not for application.  Gilbert, 1 Vet. App. 49, 53.

Claim - PTSD

The Veteran filed this claim for service connection for PTSD in December 2007.

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred.  38 C.F.R. § 3.304(f).  See also Cohen v. Brown, 10 Vet. App. 128 (1997).

A "clear" diagnosis of PTSD is no longer required.  Rather, as mentioned, a diagnosis of PTSD need only be in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).  See 38 C.F.R. § 3.304(f).

The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD.  The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror).  Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone."  Cohen, 10 Vet. App. 128, 140-141 (1997).


Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353   (Fed. Cir. 1998).  A current disability means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997). 

So, here, in the absence of this required evidence providing this required DSM-IV diagnosis of PTSD, there necessarily cannot be a valid claim.  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) and Brammer v. Derwinski, 3 Vet. App. 233  , 225 (1992) (indicating service connection presupposes a current diagnosis of the claimed disability, to establish the Veteran at least has it, and that, without this minimum level of proof, there can be no valid claim).  See, too, Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability).  But see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of a current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). 

In Cohen, the Court clarified that a diagnosis of PTSD is presumably in accordance with the DSM-IV criteria, both in terms of the adequacy and sufficiency of the stressors claimed.  But having the diagnosis is still required.

Here, the record does not show the Veteran had this required DSM-IV diagnosis of PTSD when filing is claim or that he has established he has this diagnosis at any time since.  Therefore, he is not entitled to service connection for PTSD because he has not met the first, and indeed most fundamental requirement, of at least establishing he has this claimed condition.  See again McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans' benefits.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  

Because, just as in the case of the claim concerning his low back disability, the Veteran failed to report for a VA examination in August 2012 also for his PTSD, the evidence of record is insufficient to establish he has PTSD.  Moreover, PTSD is not the type of condition that is readily amenable to mere lay diagnosis.  Indeed, to the contrary, as indicated it must be in compliance with the DSM-IV criteria, so ultimately is a medical, not lay, determination.

Therefore, for these reasons and bases, the Board concludes that the evidence in this case preponderates against this claim and the benefit of the doubt rule is not for application.  Gilbert, 1 Vet. App. 49, 53.

Claims - Left and Right Shoulders

Historically, service-connected left shoulder strain has been rated as noncompensable from August 9, 1994, and as 20 percent disabling from April 19, 2002 under DC 5201.  Service-connected right shoulder tendinitis has been rated as 10 percent disabling, effective April 19, 2002, under DC 5024.

The Veteran filed the instant claim for increased ratings in December 2007.

The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

In all claims for increase, VA has a duty to consider the possibility of assigning staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees.  38 C.F.R. § 4.71, Plate I. 

DC 5200 provides that ankylosis of the scapulohumeral articulation is to be rated as follows: favorable ankylosis, with abduction to 60 degrees, can reach mouth and head, 30 percent for the major shoulder and 20 percent for the minor shoulder; intermediate ankylosis, between favorable and unfavorable, 40 percent for the major shoulder and 30 percent for the minor shoulder; unfavorable ankylosis, abduction limited to 25 degrees from side, 50 percent for the major shoulder and 40 percent for the minor shoulder.  A Note provides that the scapula and humerus move as one piece. 38 C.F.R. § 4.71a. 

DC 5201 provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder.  38 C.F.R. § 4.71a.

DC 5202 provides ratings for other impairment of the humerus. Malunion of the humerus with moderate deformity is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder; malunion of the humerus with marked deformity is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder.  Recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, are rated as 20 percent for the major shoulder and 20 percent for the minor shoulder; recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, are rated as 30 percent for the major shoulder and 20 percent for the minor shoulder.  Fibrous union of the humerus is rated as 50 percent for the major shoulder and 40 percent for the minor shoulder. Nonunion of humerus (false flail joint) is rated as 60 percent for the major shoulder and 50 percent for the minor shoulder.  Loss of head of the humerus (flail shoulder) is rated as 80 percent for the major shoulder and 70 percent for the minor shoulder.  38 C.F.R. § 4.71a. 

DC 5203 provides ratings for other impairment of the clavicle or scapula.  Malunion of the clavicle or scapula is rated as 10 percent for the major shoulder and 10 percent for the minor shoulder.  Nonunion of the clavicle or scapula without loose movement is rated as 10 percent for the major shoulder and 10 percent for the minor shoulder; nonunion of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder.  Dislocation of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder.  DC 5203 provides an alternative rating based on impairment of function of the contiguous joint.  38 C.F.R. § 4.71a. 

DC 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis.  DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 

When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  Note (1) provides that the 20 pct and 10 pct ratings based on X-ray findings will not be combined with ratings based on limitation of motion.  Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive.

When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a. 

In rating a service-connected disability, all applicable diagnostic codes must be considered.  In Butts v. Brown, 5 Vet. App. 532 (1993), the Court held that the selection of the proper diagnostic code is not a question of law subject to the de novo standard of review.  Accordingly, the Court held in Butts that as VA and the Board possess specialized expertise in determining the application of a particular diagnostic code to a particular condition, their determination is due greater deference.  Indeed, the Court has also held that, although the reason for the change must be explained, the VA and the Board may change the diagnostic codes under which a disability or disabilities are evaluated.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell v. Shinseki, No. 09-2169 (Vet. App. Aug. 23, 2011); see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).

In a recent decision, the Court held that 38 C.F.R. § 4.59  provided for the possibility of a rating based on painful motion of a joint, regardless of whether the disability in question was arthritis or not.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  In Burton, the Court found that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair.  Id., at *5. Here, though, unlike in Burton, this is indeed being addressed but does not provide reason for increasing the ratings.

The Veteran was afforded a VA examination in March 2008 in which he complained of chronic, bilateral shoulder pain, increased symptoms, and flare ups daily; rest and not lifting helped alleviate left shoulder pain.  Physical examination showed range of motion of forward flexion to 160 degrees, abduction 40 degrees, and external rotation to 40 degrees.  X-ray showed narrowing of the left acromiohumeral distance that may suggest prior rotator cuff injury and bilateral acromioclavicular degenerative changes.  Right shoulder showed mild, acromioclavicular degenerative changes.

In order to warrant a 30 percent rating, the service-connected left shoulder would have to demonstrate arm motion limited to 25 degrees from the side.  In order to warrant a 20 percent rating, the service-connected right shoulder would have to demonstrate favorable ankylosis of the scapulohumeral articulation with abduction to 60 degrees; limitation of motion at shoulder level; malunion of the humerus with moderate deformity or recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level; dislocation of the clavicle or scapula, or nonunion of the clavicle or scapula with loose movement; or degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 

Again, as noted above, the Veteran failed to report for VA examinations for the shoulder in October 2009 and August 2012.  As a result, the evidence of record is not sufficient to establish that service-connected left and right shoulder disabilities warrant higher ratings.  

The Board also finds that functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination has been considered and 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for a higher rating.  See DeLuca, 8 Vet. App. at 204 -07. 

Therefore, for the reasons and bases expressed above, the Board concludes that the evidence in this case preponderates against the claims and the benefit of the doubt rule is not for application.  Gilbert, 1 Vet. App. 49, 53.

Extraschedular Consideration

The Board has considered whether referral of the case for an extraschedular evaluation pursuant to 38 C.F.R. § 3.321 is warranted.  In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The application of such schedular criteria was discussed in great detail above.  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b) (1).

The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  Id.  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b) (1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. §3.321(b) (1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.  

In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disabilities at issue.  The impairment from the Veteran's bilateral shoulder disabilities directly corresponds to the schedular criteria.  The criteria contemplate showing of, for example, pain (including the severity), and limitation of motion.  In short, the rating criteria contemplate not only the Veteran's symptoms but the severity of his disability.  For these reasons, referral for extraschedular consideration is not warranted.

TDIU Consideration

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU [total disability rating for compensation based on individual unemployability] is part of an increased rating claim when such claim is raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id.   

In this case, the Veteran does not allege, and the evidence does not show, that he is unable to work.  On the contrary, the Veteran is employed.  Accordingly, the Board finds that a claim for TDIU is not raised by the record.


ORDER

Entitlement to service connection for a low back disability is denied.

Entitlement to service connection for PTSD is denied.

Entitlement to a disability rating higher than 20 percent for the left shoulder strain is denied.

Entitlement to a disability rating higher than 10 percent for the right shoulder tendinitis also is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs