Citation Nr: 1745535 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 10-34 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left shoulder disability, including as secondary to service-connected left wrist disability. 2. Entitlement to an increased rating for a left wrist disability, currently rated as 20 percent disabling. 3. Entitlement to an initial compensable rating for a left wrist surgical scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to January 1965, from May 1968 to August 1969, and from December 1990 to September 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2009 and February 2010 rating decisions by the United States Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board remanded the claims in March 2014 and in September 2016. FINDINGS OF FACT 1. The Veteran's left shoulder disability was not caused or aggravated by his service or a service-connected disability. 2. Throughout the pendency of the appeal, the Veteran's left wrist disability has been manifested by no more than moderate incomplete paralysis of the median nerve with subjective symptoms of pain and numbness. 3. Throughout the pendency of the appeal, the Veteran's left wrist scar has not been painful or unstable, and has measured less than 6 square inches. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016). 2. The criteria for a rating in excess of 20 percent for a left wrist disability 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, 4.124a, DC 8715 (2016). 3. The criteria for a compensable rating for a left wrist scar have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107(West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.118, DCs 7802, 7804, 7805 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may be granted with medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by evidence of (i) the existence of a chronic disease, to include arthritis, in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran contends that his left shoulder disability was caused or aggravated by his service. However, the service treatment records are negative for any indication of a left shoulder injury or left shoulder symptoms. While records do show that the Veteran injured his left wrist while in service, he has since been awarded service connection for left wrist tendonitis, left wrist ganglion cyst, left wrist arthritis, and left upper extremity neuritis. A review of the service records does not demonstrate the presence of any other upper extremity disability or injury, to include to the left shoulder. The Veteran has not put forth any specific contentions as to the cause of his left shoulder disability. When reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim. Moreover, post-service treatment records also do not relate a current left shoulder disability to service. The post-service records document the Veteran's ongoing left wrist neurological problems. The evidence reflects that in 1999, the Veteran reported pain in his left wrist, forearm, arm, and shoulder. However, he was not shown to suffer from a left shoulder disability at that time. The Veteran continued to complain of left upper extremity pain and, in September 2009, underwent a left carp tunnel release procedure. At that time, he was noted to suffer from a chronic history of left upper extremity pain. Then, in December 2008, a VA treatment record showed the presence of osteoarthritic changes in the left shoulder joint. While these records document shoulder pain, and later on a diagnosis of arthritis, they do not relate a shoulder disability to service. On March 2017 VA examination, a VA examiner conducted physical examination of the Veteran and reviewed the claims file, but found that it was less likely than not that the Veteran's left shoulder disability was caused or aggravated by his service. The examiner explained that there was no indication of a left shoulder injury or condition in service, and noted it to be significant that the first evidence of a diagnosed left shoulder disability was not until 2008. Accordingly, a nexus between the Veteran's left shoulder arthritis and service could not be made. The Board also finds that service connection for a left shoulder disability is not warranted on a secondary basis. The March 2017 VA examiner considered these alternative contentions, but found that it was less likely than not that the Veteran's left shoulder disability was caused or aggravated by his service-connected left wrist disability. The examiner explained that the records did not show any mention of the left wrist disability in conjunction with his diagnosis of a left shoulder arthritis in 2008. The examiner found no relationship in the records between the Veteran's left shoulder disability and left wrist disability. The Board notes that with regard to the Veteran's claim on a secondary basis, the Veteran has not put forth any contentions as to how his left wrist disability has caused or aggravated his left shoulder disability. In that regard, the medical records do not demonstrate a relationship between the Veteran's left wrist disability and his left shoulder disability that would trigger the duty to assist for further examination or opinion. The March 2017 VA examiner reviewed the record but determined that it was unlikely that there was a relationship between the left wrist disability and left shoulder disability. The examiner specifically noted that at the time of the Veteran's left wrist injury in service, there was no corresponding injury to the left shoulder. The examiner found it to be significant that the diagnosis of left shoulder arthritis did not correspond with treatment for the Veteran's service-connected left wrist disability. When reviewing the record, it is clear that the Veteran suffers from pain in his left upper extremity that permeates his wrist, arm, and shoulder. However, that pain has been assessed to stem from either his service-connected left wrist disabilities and/or his nonservice-connected radiculopathy related to a back disability. The Veteran's reported left shoulder pain has not been medically related to his service, or to his left wrist disability. As the March 2017 VA examiner stated, the first indication of a diagnosed left shoulder disability was not until many years following service separation, and there was no indication of a left shoulder injury in service. There was also not indication of a relationship between the left shoulder arthritis and the service-connected left wrist disability. Significantly, the Veteran has provided only conclusory suggestions in support of his claim, but he is not competent to provide a medical opinion on the question of aggravation here as it extends beyond an immediately observable cause-and-effect relationship and thus, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). When weighing the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a left shoulder disability. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 . When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left wrist disability has been rated as 20 percent disabling under DC 8599-8715. The code 8599 refers to a disability that is not listed in the rating criteria, in this case the Veteran's ganglion cyst. The criteria for evaluating the severity or impairment of the median nerve is set forth under Diagnostic Codes 8515, 8615, and 8715. Under DC 8715, a 10 percent rating is warranted for mild incomplete paralysis of the median nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the median nerve. A 40 percent rating requires severe incomplete paralysis of the median nerve in the minor extremity. Under DC 8515, complete paralysis of the median nerve includes the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand), pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm, flexion of wrist weakened, and pain with trophic disturbances. 38 C.F.R. § 4.124a DC 8515. DC 8615 and 8715 address the criteria for evaluating paralysis and neuralgia of the median nerve, respectively. 38 C.F.R. § 4.124a , DCs 8515, 8615, 8715. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 . Under 38 C.F.R. § 4.124a , disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be mild, or at most, moderate in degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. In this case, the Board finds that a rating higher than 20 percent for the Veteran's left wrist disability is not warranted. On December 2010 VA examination, the Veteran was noted to have moderate tendonitis of the left wrist with ganglion cyst. During flare-ups, he would experience left wrist pain, weakness, and stiffness. Range of motion testing was slightly limited on dorsiflexion, to 50 degrees, and on palmar flexion, to 70 degrees. There was no additional functional loss on repetition. Hand dexterity was normal. Neurological examination showed normal motor function, with diminished sensation at the middle finger. Reflexes were normal. There was evidence of neuritis of the left wrist. X-ray showed no arthritis of the wrist. The Veteran had a left wrist scar that was not painful on examination. The scar was superficial and linear. On July 2011 VA examination, the Veteran described symptoms that were more severe in degree, to include tingling and numbness in the fingertip up to the arm, weakness in the fingers with an inability to close the hand, and flare-ups each day. On physical examination, he displayed normal range of motion of the left wrist. There was no indication of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, or subluxation. Examination of the hands did not reveal any decrease in strength. Neurological examination showed decreased sensory function for the stocking glove nerve. Reflexes and motor function were normal. There was evidence of arthritis of the left wrist. There was no indication of pain at the site of the left wrist scar. The examiner noted that although the Veteran showed signs of neurological deficit in the left wrist, as well as positive Tinnel's and Phalen's signs, it was the examiner's opinion that such findings were related to the Veteran's exaggeration of symptoms. The examiner also noted that the Veteran's left wrist x-ray was insignificant. On March 2017 VA examination, the Veteran was assessed to suffer from moderate incomplete paralysis of the left median nerve. That finding was based upon normal sensory examination and reflex examination, but moderate to severe subjectively reported symptoms of numbness and paresthesias in the left upper extremity. His scar was found to not be painful on examination. Based upon the above, as well as the treatment records that span the appeal period, the Board finds that the Veteran's left wrist disability meets the criteria for a moderate neurological rating, or 20 percent, as is currently assigned, but no higher. The physical findings have shown no more than mild to moderate deficit of the left hand. While the Veteran has reported experiencing more severe symptoms, those reports have not been consistent with the objective medical findings and, in fact, the 2011 VA examiner found the Veteran's reported symptoms to be exaggerated when compared to the physical examination results. Thus, the Board places greater weight on the competent objective medical evidence of record and less weight to the Veteran's reported symptoms, as his credibility in that regard has been called into question. The consistent VA examinations have shown diminished sensory examination, with otherwise normal motor, muscle, and reflex testing. Additionally, the Veteran has not shown a range of motion deficit of the wrist that would meet the criteria for a separate compensable rating under DC 5215. The Veteran's wrist pain, numbness, and diminished sensation are accounted for by the current 20 percent rating. Finally, the Board finds that a compensable rating is not warranted for the Veteran's left wrist scar. On all three VA examinations, the Veteran's scar was found to not be painful, unstable, or nonlinear. It has measured less than 6 square inches. There are no other functional limitations related to the scar. The Veteran has reported numbness in the left upper extremity, and such is accounted for in his 20 percent rating for incomplete paralysis of the median nerve. 38 C.F.R. § 4.118, DCs 7801-7804. Accordingly, as the preponderance of the evidence is against the Veteran's claims, the Board finds that the claims for increased ratings must be denied. ORDER Service connection for a left shoulder disability is denied. A rating in excess of 20 percent for a left wrist disability is denied. A compensable rating for a left wrist scar is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs