Citation Nr: 1602004	
Decision Date: 01/19/16    Archive Date: 01/27/16

DOCKET NO.  12-18 291	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1. Entitlement to an increased rating in excess of 10 percent for hypertension. 

2. Entitlement to an increased rating in excess of 10 percent for status-post right shoulder dislocation and surgery (right shoulder condition).

3. Entitlement to service connection for a left shoulder condition, to include as secondary to service-connected right shoulder condition. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Zi-Heng Zhu, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Air Force from July 1984 to March 1988. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claims for increased ratings and service connection. 

This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should review this electronic record.


FINDINGS OF FACT

1. The Veteran's service-connected hypertension is manifested by diastolic pressure predominantly less than 110, systolic pressure predominantly less than 200, and continuous medication for control.

2. The Veteran's right side is his dominant side.

3. The Veteran's right shoulder condition, throughout the appeal period, was manifested by complaints of pain with flexion and abduction limited to, at worst, 170 and 160 degrees, respectively, with some evidence occasional dislocation (subluxation), and guarding/pain when reaching above his head.

4. The preponderance of evidence is against the finding that the Veteran's left shoulder condition is etiologically related to, or aggravated by, his service-connected right shoulder condition.  



CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 10 percent for service-connected hypertension have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.104, Diagnostic Code (DC) 7101 (2015).

2. The criteria for a rating in excess of 10 percent for service-connected right shoulder condition have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71(a), DC 5299-5203 (2015).

3. The criteria for a separate, 10 percent rating for occasional dislocation of service-connected right shoulder condition are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71(a), DC 5202 (2015).

4. The criteria for service connection for a left shoulder condition, as secondary to service-connected right shoulder condition, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision the Board will discuss the relevant laws which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (38 U.S.C.A.); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (38 C.F.R.) and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to Vet.App.).

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). 

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. See Barr v. Nicholson, 21 Vet.App. 303, 308 (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(a). Lay evidence may be competent and sufficient to establish a diagnosis of a disorder 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).

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).

In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Gober, 125 F.3d 1447, 1481 (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"). Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...").

After determining the competency and credibility of evidence, the Board must then weigh its probative value. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duties to Assist and Notify

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014).

VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records (STRs) and other pertinent records, including private medical records (PMRs).  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The claims file contains the Veteran's STRs and VA medical records (VAMRs).  The duty to obtain relevant records is satisfied.  See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  An adequate examination must consider the issue at hand and provide sufficient analysis for the Board to weigh that examination against others. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, "there is no reasons or bases requirement imposed on examiners." Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012).  Rather, a medical opinion is adequate when it is based on consideration of the veteran's prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'"Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)).  The Board finds that the VA examinations provided for the issues decided herein, are adequate under the law. Therefore, the Board has fulfilled its duties under the VCAA. 

Increased Rating - Generally 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2015). 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 (West 2014); 38 C.F.R. § 4.1 (2015). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2015).

Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. See 38 C.F.R. § 4.2; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. See Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007).

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). As will be further explained below, in making the determination for a higher rating than that currently assigned for the Veteran's claimed conditions, the Board notes that it took into account the Veteran's complaints of pain, and was cognizant of the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59.

Increased Rating - Hypertension 

The Veteran claims that his service-connected hypertension is worse than his current 10 percent disability rating. The Board finds that after a thorough review of the evidence of record, to include several VA Compensation and Pension (C&P) examinations, VA and private treatment records, and lay statements from the Veteran, the competent medical evidence of record reveals no instance where the Veteran's condition manifested predominantly with diastolic or systolic pressure above 110 or 200, respectively. As such, the Board finds that the preponderance of the evidence is against the finding that the Veteran's hypertension warrants rating in excess of 10 percent under the appropriate Diagnostic Code. Therefore, the Veteran's claim for an increased rating for his service-connected hypertension must be denied.  

Disabilities of the cardiovascular system, including the heart, arteries, and veins, are rated under 38 C.F.R. § 4.104, Diagnostic Codes 7000-7123. The Veteran's hypertension is currently rated as 10 percent disabling under Diagnostic Code 7101. Under this Diagnostic Code, a 10 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. 

However, important for this case, a 20 percent evaluation is assigned for hypertensive vascular disease when diastolic pressure readings are predominantly 110 or higher, or when systolic pressure readings are predominantly 200 or higher. Id. Hypertensive vascular disease with diastolic pressure readings that are predominantly 120 or higher is rated as 40 percent disabling. Id. Hypertensive vascular disease with diastolic pressure readings that are predominantly 130 or higher is rated as 60 percent disabling. Id. 

For purposes of this section, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. at Note (1).

As noted above, the Veteran has been afforded several VA C&P examinations for his claimed hypertensive condition throughout the appeals period in June 2010, April 2014, July 2014 and January 2015. In addition to these VA examinations, the record also contains voluminous amounts of private and VA treatment records that contain both private tests for blood-pressure, as well as private examinations for hypertension. A review of these records reveals no instances when the Veteran's blood pressure readings have predominantly registered above 110 for diastolic and/or 200 for systolic pressure; as such a rating higher than his current 10 percent disability rating under the appropriate Diagnostic Code is not warranted.  
The Board notes that because of the nature of the claimed condition, hypertension, which is rated on blood-pressure, evidence regarding such objective criteria is voluminous, as every medical report, treatment, and/or examination, regardless of medical issue, contains blood-pressure readings. As such, the Board emphasizes that although there is an obligation to provide sufficient reasons and bases in support of the Board's decision, there is no need to discuss, certainly not in exhaustive 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) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision therefore focuses only on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

Here, the Board will first discuss the four separate VA examinations afforded to the Veteran throughout the appeals period. The Board notes that, with the exception of the July 2014 VA examination, none of the other three examinations reveals blood-pressure readings in excess of 110 for diastolic and/or 200 for systolic pressure. In the Veteran's most recent January 2015 examination, the Veteran's blood pressure were as follows for systolic / diastolic (blood pressure was taken three times in the same day): 147/80; 152/86; and 143/86; with an average blood-pressure of 147/84. The examiner noted no history of diastolic pressure over 100. This January 2015 examination is representative of the Veteran's other VA examinations throughout the appeals period, and as such the Board finds such examination highly probative of the Veteran's current condition. 

The Board acknowledges that during his July 2014 VA examination, the Veteran's blood-pressure did register above the requisite diastolic level of 110. Upon examination, the Veteran's blood pressure was as follows for systolic / diastolic pressure: 170/109; 143/113; and 158/111; with an average blood-pressure of 157/111. The Board notes, however, that such results are both inconsistent with the Veteran's other examinations, and medical treatment record, but also internally inconsistent. Specifically, the Board points out that while two of the three readings registered above 110 for diastolic pressure, the examiner noted that the Veteran did not have a history of diastolic pressure above 100, and that currently the condition was simply poorly controlled by the Veteran. Furthermore, the Board notes, a close review of the medical records surrounding this examination, to include a VA examination in April 2014 and January 2015, both within six months of this examination, reveals that such high results are anomalous, and do not reflect the Veteran's predominant condition. 

The Board has also reviewed the extensive treatment records in the claims file, both private and VA treatment records reveals blood-pressure tests that predominantly show the Veteran's hypertension manifesting under the requisite objective criteria for a higher rating. Private testing of the Veteran's blood-pressure from the Baldwin Area Medical Center, has consistently demonstrated blood-pressure below 200 systolic and/or 110 diastolic pressures. In fact, even during a stress test report from January 2011, the Veteran's blood-pressure, only reached 200/100 at its height of exercises, returning to 128/80 shortly after recovery. 

As noted above, the criteria for a 20 percent rating, under the appropriate Diagnostic Code, requires the Veteran's condition to manifest with blood pressure that is predominantly 110 or more or diastolic pressure or 200 or more for systolic pressure. See 38 C.F.R. § 4.104, DC 7101. Here, the Board finds that the Veteran's condition predominantly has registered below such levels of pressure. As noted above, the Veteran's more recent VA examination showed no history of diastolic pressure above 100, and the Veteran's systolic pressure has consistently registered well below 200. While the Veteran does continuously take medication to control his hypertension, the preponderance of evidence remains against the finding of the Veteran's condition manifesting to the levels required under the objective criteria of the appropriate Diagnostic Code.  

The Board does recognize that the July 2014 examination notes diastolic pressure above 110. However, the Board notes that all three readings were conducted on the same day, and only represent one instance of diastolic pressure above 110. The Board finds that this single test, among five years of blood-pressure records and three other VA examinations, is not representative of Veteran's condition, and certainly does not constitute as "predominant" as required by the assigned Diagnostic Code. See 38 C.F.R. § 4.104, DC 7101. 

Finally, the Board notes the Veteran's contention that his condition is not fully contemplated by his current 10 percent rating. Specifically, the Veteran describes that his condition worsens at times when he is stressed, and his blood pressure is heightened. See Veteran's Statement date May 21, 2014. The Board notes the Veteran, as a lay person, does not possess the specialized education, experience, or training that is required to assess whether his blood-pressure reaches a level to fulfill the objective criteria of a higher rating. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Such specific reports of blood-pressure have been amply reported in the treatment records and examinations of record, and are more probative than such lay statements. 

However, even assuming the Veteran, as a lay person, is competent to operate and properly measure his own blood-pressure, the Veteran has not submitted or asserted specific blood-pressure readings, or a blood-pressure log, in which the requisite level of diastolic or systolic pressure above 110/200 is demonstrated. The Veteran's subjective assertions of feeling that his blood-pressure is higher, does not outweigh the objective test results provided by competent medical professionals of record. 

Therefore, the Board finds that the preponderance of evidence is against the finding that the Veteran's hypertension manifests predominantly with diastolic and systolic pressures predominantly above 110 and/or 200. As such the doctrine of affording the Veteran the benefit of the doubt is inapplicable, and the Veteran's claim for an increased rating for his hypertension must be denied. 

Increased Rating - Right Shoulder Condition 

The Veteran has also claimed that, like his hypertension, his service-connected right shoulder condition is much worse than that represented by his current 10 percent rating under the appropriate Diagnostic Codes. Specifically, the Veteran contends that he experiences a lot of issues with his shoulder, to include experiencing pain when he reaches above his head, or playing/carrying his children, or generally after a lot of activity. He further asserts that such condition has diminished his abilities to do daily activities such as chopping wood. The Board finds that, after a review of the evidence of record, which include VA C&P examinations, lay statements, and medical treatment records, the Veteran's right shoulder condition is manifested by slightly limited range-of-motion, with no indication of flare-ups. However, there are some indications of infrequent dislocations of the right shoulder with some guarding and pain. As such, while the Board finds that the preponderance of evidence is against the finding that a higher rating under Diagnostic Codes 5203 is warranted, his condition warrants a separate 10 percent rating under Diagnostic Code 5202 for infrequent episode of dislocation (subluxation). 

Shoulder disabilities are rated under Codes 5200 to 5203. Under DC 5201 for limitation of motion of the major arm, a 20 percent rating is assigned for limitation of motion at shoulder level. A 30 percent rating is assigned for limitation of motion to midway between side and shoulder level on the major side. A 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from side on the major side.

Normal range of motion in the shoulder is from 0 to 180 degrees of forward elevation (flexion) and 0 to 180 degrees of shoulder abduction. See 38 C.F.R. § 4.71(a), Plate I.

The Federal Circuit has held that the plain language of 38 C.F.R. § 4.71(a) confirms that a veteran is only entitled to a single disability rating under Diagnostic Code 5201 for each arm that suffers from limited motion at the shoulder joint. The diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to "limitation of motion of" the arm. Yonek v. Shinseki, 722 F.3d 1355, (Fed. Cir. 2013).

The Veteran's right shoulder condition is rated under 38 C.F.R. § 4.71(a), Diagnostic Codes 5299-5203. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of Diagnostic Codes 5299-5203 reflects that there is no diagnostic code specifically applicable to the Veteran's service-connected right shoulder condition, and that this disability has been rated by analogy to impairment of the clavicle or scapula under Diagnostic Code 5203. See 38 C.F.R. § 4.20 (allowing for rating of unlisted condition by analogy to closely related disease or injury).

In the present case, the Veteran was afforded two separate VA C&P examinations in June 2010 and April 2014; the Board will discuss these in turn. During the June 2010 examination report, the VA examiner noted that the Veteran experienced some stiffness, weakness, clicking, pain, and aching in his right shoulder. Additionally, the examiner noted that the Veteran suffered from some tingling down to his fingers and occasional burning sensations on the right shoulder. The Veteran, however, was not on any continuous medication, and took over-the-counter pain-killers when such pain increased. The Veteran reported that such symptoms are relieved by resting. 

Upon examination, the Veteran's range of motion only showed slight limitations, to include 180 degrees of flexion (normal) and 150 degrees of abduction. No objective pain was noted by the examiner during the examination. Further examination revealed normal strength, with no indication of heat, redness, edema, abnormal movement, guarding, or deformity. The examiner noted that the Veteran's condition caused minimal to no functional impairment; in this regard, the examiner explicitly noted that the Veteran experienced no additional functional limitations based on weakness, excess fatigability, lack of endurance or coordination. In fact, the report noted that the Veteran did not experience flare-ups. Overall, the Veteran right shoulder condition did not affect his ability to independently perform activities of daily living. Ultimately, the June 2010 examiner diagnosed the Veteran with degenerative joint disease of the right shoulder, status-post reconstruction surgery, with slight limitation of motion and recurrent dislocation.   

The Veteran was afforded another examination in April 2014. During this examination, the Veteran reported much of the same symptoms of issues with his shoulder, reporting experiencing pain in his right shoulder, with periodic increase in intensity with activity such as chopping wood, or any activity which required overhead movement. However, again, he denied flare-ups. Upon examination, the Veteran's range-of-motion was as follows: flexion limited to 170 degrees, and abduction limited to 160 degrees, with pain beginning at the end points. The Veteran's range of motion remained the same following three repetitions of motion. The examiner identified functional loss due to loss of motion and pain on motion. There was no localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon of the left shoulder, there was no guarding, muscle strength associated with shoulder abduction and flexion was normal (5/5), and there was no ankylosis of the shoulder joint. Additionally, no other impairment of the clavicle or scapula and there was no tenderness on palpation of the acromioclavicular joint.

The examiner, however, noted there was a history of mechanical symptoms, and recurrent dislocation of the glenohumeral (scapulohumeral) joint, with infrequent episode of dislocation (subluxiation). Furthermore, the Veteran's right shoulder tested positive during the Hawkins' Impingement Test for rotator cuff issues conditions, indicating potential rotator cuff tendinopathy or tear; however, no such diagnosis was ultimately provided. The physician who conducted the examination also concluded that pain, weakness, fatigability, and incoordination did not limit functional ability or with repeated use of the shoulder over a period of time.

In addition to these VA examinations, the claims file is filled with both VA and private treatment records. However, a review of such records reveals no additional relevant evidence regarding the Veteran's shoulder condition. The Board also acknowledges that the Veteran has also submitted lay statement regarding his shoulder condition. Specifically, he has continuously asserted that his right shoulder pain increased and affects his ability to carry/lift things, as well as movement above him head, such as chopping wood. He claims that such impairments affect his ability to play with his children and daily life. 

Similar to his claim for hypertension, the Board finds that while the Veteran, as a lay may be competent to attest to the fact that he experiences pain in his right shoulder, he is not competent to offer diagnoses of specific conditions or objective degrees of limitation-of-motion regarding his right shoulder. See Jandreau, spura. As such, the Board finds that the competent medical evidence of record as the most probative representation of the Veteran's current shoulder condition, therefore, the preponderance of evidence remain against the finding that a higher rating in excess of 10 percent is warranted. 

As noted above the requirement for a rating in excess of 10 percent based on limitation of motion of the arm of the major extremity without evidence of ankylosis, impairment of the humerus, or impairment of the clavicle or scapula (i.e., a 20 percent rating) requires limitation of motion to the shoulder level, or 90 degrees. See 38 C.F.R. § 4.71(a), DC 5201. As described above, no such evidence has been provided to show that the Veteran's objective range-of-motion is so diminished; in fact, the Veteran's flexion at its worse has been only limited to 160 degrees, during the April 2014 VA examination. Such limitation does not warrant a higher, 20 percent rating. 

Also, there has been no evidence of any shoulder ankylosis, impairment of the humerus, or nonunion or dislocation of the clavicle or scapula. The absence of such impairments was noted during both VA examinations. Hence, a higher rating is not warranted during the claim period on the basis of such impairments.

In light of the above findings, the Board finds that the preponderance of the evidence is against assigning a rating higher than 10 percent for the Veteran's service-connected right shoulder condition. As such, the Veteran's claim for a higher rating must be denied. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71(a), DCs 5200-5203.

However, the Board notes that there has been evidence that the Veteran does suffer from a separate, but related, disability of recurrent dislocation of the scapulohumeral joint. Specifically, both VA examinations noted that the Veteran suffered from recurrent dislocations; in the April 2014 examination report the VA examiner noted that such recurrent dislocation happened infrequent episodes. As noted above, under this Diagnostic Code a 10 percent rating is warranted when there is evidence of recurrent dislocation of the scapulohumeral joint in infrequent episodes, with guarding above shoulder level. 38 C.F.R. §§ 4.7, 4.71(a), DC 5202. Here, the competent medical evidence documents infrequent episodes of dislocation, and the Veteran has consistently noted increased pain and limitations moving his arm above his head. 

Consequently, the Board finds that a separate rating of 10 percent under Diagnostic Code 5202 is warranted. The Board notes that such additional separate rating does not frustrate the VA's regulation against pyramiding, as the Board does not consider such symptoms to be contemplated within the Diagnostic Code in which the Veteran is currently rated under. As such, to account for this additional symptomatology, the Board a separate 10 percent rating is warranted under Diagnostic Code 5202. Id. 

Extraschedular Consideration

The Board considered whether this claims should be referred for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321 (b) , which is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). 

There is a three-step inquiry for determining entitlement to an extraschedular rating. Thun v. Peake, 22 Vet. App, 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id.

The Board does not find that referral for an extraschedular rating is warranted. The Veteran has complained of pain in his right shoulder, and associated symptoms such as some limitation in motion, stiffness, weakness and some tingling. These signs and symptoms, and the resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the shoulder provide disability ratings on the basis of limitation of motion. See 38 C.F.R. § 4.71(a), DCs 5299-5203. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet.App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's shoulder disability, and the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1) (2015). 

Moreover, any remaining symptomatology not captured by the rating criteria should not be evaluated under what can be at best described as a vague and impossible to apply standard, which is bound to lead to inconsistent and ultimately unfair results. Rather, the correct course of action is to rate any separate and distinct symptoms, using the rating schedule, perhaps with one or more separate ratings, which is what is being done in this case. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). 

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. 

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.

The Board also notes that the Court has held that the issue of a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when a request for TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, in the present case, the Veteran has not explicitly raised the issue of TDIU. Likewise, the record does not reasonably raise the issue of TDIU. 

Service Connection - Left Shoulder Condition 

Finally, the Veteran claims that he currently suffers from a left shoulder condition, and that condition is the secondary, or the result of, his service-connected right shoulder condition. Specifically, the Veteran contends that since his right shoulder injury he has been overusing his left shoulder/arm to compensate for his disabled right side, as such, it has caused his left shoulder to develop issues as well. The Board notes that a review of the Veteran's claims file, to include a VA C&P examination and treatment records, reveals no etiological relationship between the Veteran's left shoulder condition and his service-connected right shoulder disability. Consequently, the preponderance of evidence is against the finding that the Veteran's left shoulder condition is related, or as secondary to his right shoulder, and therefore his claim for service connection must be denied.  

Generally, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2014). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 
38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Here, the Veteran was afforded an examination for this claim in June 2010, to assess the nature and etiology of any left shoulder condition. During that examination the VA examiner noted a diagnosis of minimal degenerative changes, with slight decreased in range-of-motion in the Veteran's left shoulder. However, the examiner concluded a negative nexus opinion regarding the Veteran's left shoulder, opining that his left shoulder condition was less likely than not related to, or aggravated by, his right shoulder disability. Specifically, the examiner explained that "bilaterally symmetrical joint conditions are most likely consistent with normal age-related degenerative changes." VA C&P Examination dated June 2010, Pg. 12. He explained further that, in essence, the fact that the injuries are similar on both the left and right shoulders, demonstrates that the two were not related, as it is unlikely that a unilateral injury to one limb can cause exactly similar injuries to the contralateral joint. Id. In other words, if the Veteran's right shoulder injury did in-fact cause the Veteran's left shoulder, such manifestations/symptoms would be different, and not, as it is in this case, symmetrical joint conditions. 

The Board points out that a further review of the medical evidence of record reveals no additional opinions or conclusions regarding the etiology of the Veteran's left shoulder condition. During his April 2014 examination for his right shoulder, the examiner also provided an examination for the Veteran's left shoulder; however, such report did not provide any nexus analysis or opinion. While that examination did provide and corroborate the Veteran's left shoulder condition, it is of little probative value as it provides no opinion regarding the etiology of the condition. 

The Board has also considered the Veteran's lay statements regarding his left shoulder condition. However, again, as both times previously, the Board finds that the Veteran's lay statements are of little probative value as he has not shown to possess the specialize education, experience, and training to speak to the complex medical issue of etiology of a secondary condition, or aggravation. Jandrea, supra..  The Board finds that competent medical evidence has been provided by the examinations of record, and as the Board finds them adequate, they provide the most probative opinion regarding the Veteran's claimed condition. 

Finally, the Board notes an analysis for service connection on a direct basis is not necessary, as the Veteran has not alleged that his current left shoulder condition was due to his military service. See Robinson v. Mansfield 557 F.3d 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Here, the Board notes that such inquiry would end with the in-service incurrence/injury element for service connection. A review of the Veteran's service treatment records (STRs) reveals no incident in which an injury can be inferred to the Veteran's left shoulder; and indeed, the Veteran has not alleged such injury/incurrence. As such, any direct inquiry would end, similarly to the results described herein.

Therefore, the Board finds that the preponderance of evidence is against the finding that the Veteran's left shoulder condition is etiologically related to, or aggravated by, his service-connected right shoulder condition.  Although the Board is grateful for the Veteran's honorable service, the benefit-of-the-doubt doctrine is inapplicable under these facts, and the Veteran's claim for service connection must be denied. 



ORDER

Entitlement to an increased rating for hypertension is denied. 

Entitlement to an increased rating for a right shoulder condition is denied. 

Entitlement to a separate 10 percent rating for right shoulder dislocation is granted. 

Entitlement to service connection for a left shoulder condition, as secondary to a right shoulder condition is denied. 





______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs