Citation Nr: 1751748 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-24 445A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back disorder, to include as secondary to service-connected status post left medial malleolus fracture. 2. Entitlement to service connection for a left shoulder disorder. 3. Entitlement to a rating in excess of 20 percent for residuals, status post left medial malleolus fracture. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had active duty service from February 1981 to February 1985. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 20 percent rating assigned for residuals, status post left medial malleolus fracture and declined to reopen claims for service connection for disorders of the back and left shoulder. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in September 2016. A transcript is of record. The Board remanded the claims for additional development in January 2017. In July 2017, the Board reopened the claim for service connection for a left shoulder disorder and remanded it, along with the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back disorder, and the claim for a rating in excess of 20 percent for status post left medial malleolus fracture, for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In an April 2007 rating decision, the RO denied the Veteran's claim for service connection for lumbar strain; the Veteran did not appeal that decision or submit new and material evidence during the appeal period and that decision is final. 2. The evidence added to the record since the April 2007 final denial, when considered with previous evidence, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for a back disorder. 3. There is no probative evidence establishing that the Veteran's current left shoulder disorder had its onset during active duty service or is related to such service; or that arthritis in the left shoulder was manifested within one year of the Veteran's discharge from active duty service. 4. The Veteran is in receipt of the maximum rating under Diagnostic Code 5271 for residuals, status post left medial malleolus fracture; there is no evidence of left ankle ankylosis; and the medical evidence establishes that neurological symptoms are not part of his service-connected ankle disability. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for a back disorder, to include as secondary to service-connected status post left medial malleolus fracture. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for a rating in excess of 20 percent for residuals, status post left medial malleolus fracture, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran's claim for service connection for lumbar strain was initially denied by way of an April 2007 rating decision. The Veteran did not appeal that rating decision, nor did he submit new and material evidence within one year of that decision; therefore, it is final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Veteran filed to reopen his claim for service connection for a back disorder in February 2011. The RO declined to reopen the claim in the September 2012 rating decision that is the subject of this appeal, and it is unclear whether the RO reopened the claim in the June 2014 statement of the case (SOC) or the subsequently issued supplemental SOCs (SSOCs). The Board, however, has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The claim for service connection for lumbar strain was denied in the April 2007 final rating decision on a direct basis because in-service treatment was considered acute and transitory and not indicative of a chronic disability or disease process; and on a secondary basis due to the absence of evidence of a relationship between the back disorder and the service-connected left medial malleolus fracture. Evidence added to the record since the April 2007 rating decision includes the Veteran's assertions made in written statements and during his September 2016 Board hearing that his back disorder was incurred in service or, alternatively, that his service-connected left ankle disability is the cause of his back disorder; a voluminous amount of medical evidence that documents continued treatment for chronic back pain and diagnostic imaging of mild age-related degenerative changes in the lumbar spine; and a September 2011 VA back conditions Disability Benefits Questionnaire. The Board notes that the evidence discussed in the preceding paragraph is new because it was not previously of record. It finds, however, that this evidence is cumulative and redundant of the evidence of record at the time of the last final denial regarding the claim for service connection for a back disorder. The Veteran's assertions merely reiterate his previously-made contention that his back disorder was incurred in service or is secondary to his service-connected left ankle disability. Thus, these same contentions are cumulative or redundant of information and evidence considered in the prior denial. In addition, the Veteran has not provided any competent medical evidence that his current back disorder is linked to active duty military service or to his service-connected left ankle disability, which were the bases of the last final denial in April 2007. The Board notes that the September 2011 VA examiner provided an opinion against the claim on a direct basis. In short, the evidence submitted since the prior final denial of the claim for service connection for a back disorder is cumulative and redundant of the evidence previously of record, and it does not relate to the bases of the prior denial. Therefore, new and material evidence has not been received, and the previously denied claim for service connection for a back disorder, to include as secondary to service-connected status post left medial malleolus fracture, is not reopened. Thus, the appeal is denied. Service Connection Claim Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). The Veteran essentially contends that his current left shoulder disorder is a result of injuries he sustained while playing football during service. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with mild to moderate osteophytic changes of the acromioclavicular and glenohumeral joints. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. Service treatment records are devoid of reference to, complaint of, or treatment for, any left shoulder problems, and a January 1985 discharge examination revealed that clinical evaluation of the Veteran's upper extremities was normal. The first treatment for problems involving the left shoulder following service was in 2016, when the Veteran reported chronic left shoulder pain. As there is no competent evidence of left shoulder arthritis in service or within one year following the Veteran's February 1985 discharge from service, competent evidence linking the current left shoulder condition with service is required to establish service connection. In this case, there is none. At this juncture, the Board acknowledges that no medical opinion was obtained in this case. It finds, however, that no opinion is needed because there is no evidence of in-service occurrence of a left shoulder problem and no competent evidence suggesting a current left shoulder problem is related to service. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, while the Board acknowledges the Veteran's assertions regarding injuries sustained during service and continuous problems with his left shoulder after service, the absence of in- service complaints involving the left shoulder, to include at separation when clinical evaluation of his upper extremities was normal, and the fact that the Veteran did not report chronic left shoulder problems until approximately three decades after his discharge from service, despite a voluminous amount of treatment received after service for other complaints, diminishes the probative value of the Veteran assertions and is evidence that weighs against the claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records is a factors that the Board can consider and weigh against a veteran's lay evidence); see also AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). While the Veteran believes that his current left shoulder disorder is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a left shoulder disorder are matters not capable of lay observation, and require medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his left shoulder disorder is not competent medical evidence. In the absence of probative evidence establishing that the Veteran's current left shoulder disorder is related to service, the preponderance of the evidence is against the claim for a left shoulder disorder on a direct basis. Service connection is also not warranted on a presumptive basis in the absence of evidence that left shoulder arthritis manifested within one year of the Veteran's February 1985 discharge from active duty service. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). 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). Once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Spencer v. West, 13 Vet. App. 376, 382 (2000) (noting that because the Veteran was in receipt of the maximum rating for limitation of motion under Diagnostic Code 5215 and the record failed to show evidence reflecting symptomatology necessary for a higher rating for ankylosis under Diagnostic Code 5214, the Veteran is not entitled to a higher rating, even though there is evidence of record reflecting that the appellant has pain on movement). Service connection was originally established for residuals, status post left medial malleolus fracture in an August 2006 rating decision, which assigned a 20 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271, effective March 7, 2006. The 20 percent rating under Diagnostic Code 5271 has been in effect since then. Diagnostic Code 5271 provides the rating criteria for limited motion of the ankle. Moderate limited motion merits the assignment of a 10 percent rating, and marked limited motion merits the assignment of a 20 percent rating. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II (2017). The Veteran seeks an increased rating for his left ankle disability. He asserts that he has left ankle fatigue/weakness, which has caused twists and numerous falls; that he cannot stand up on his ankle and requires a wheelchair; that he cannot undergo therapy due to pain; and that medication is not helping. The Veteran has also described left ankle swelling and flare-ups of pain that last about 30 minutes. The Board notes that the Veteran has also reported that numbness has caused his ankle to give way and that a VA examiner has found that his neurological symptoms are not part of his ankle disability. As such, any left lower extremity neurological symptoms have not been considered in this decision. 38 C.F.R. § 4.14 (the use of manifestations not resulting from service-connected disability for evaluating the service-connected disability is to be avoided). The Board also notes that a separate claim for service connection for peripheral neuropathy of the left lower extremity, to include as due to the service-connected left ankle fracture, was referred by the Board in July 2017 and is being developed by the RO. Upon review of the record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 20 percent for the service-connected residuals, status post left medial malleolus fracture, at any time during the appellate period. The Board acknowledges the Veteran's subjective complaints related to his left ankle, to include weakness, fatigue, twisting, giving way, swelling, and the need for a wheelchair. The Board also acknowledges that the Veteran has received treatment throughout the appeal period for complaints of left ankle pain and other symptomatology. However, as the Veteran is currently in receipt of the maximum rating assignable under Diagnostic Code 5271, the assignment of a rating in excess of 20 percent is impossible under this diagnostic criterion. The Board has considered the other diagnostic criteria related to the ankle to determine whether rating in excess of 20 percent is warranted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The only diagnostic code that provides ratings in excess of 20 percent, however, is Diagnostic Code 5270, which provides the rating criteria for ankle ankylosis. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5270 is not applicable to the Veteran's service-connected disability as there is no evidence in the treatment records or VA examination reports the Veteran's left ankle is ankylosed. As noted above, once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain. See Johnston, 10 Vet. App. at 85. As an initial matter, the Veteran was able to perform repetitive-use testing of his left ankle with three repetitions without any additional limitation of motion during the VA examinations in September 2011, January 2016 and January 2017. Range of motion was 10 degrees of dorsiflexion and 30 degrees of plantar flexion on the 2011 examination, and 5 degrees of dorsiflexion and 25 degrees of plantar flexion on the 2016 and 2017 examinations. All three examinations specifically found that the Veteran did not have ankylosis in the left ankle. Although the September 2011 VA examiner reported functional loss/impairment of the ankle in the form of less movement than normal, weakened movement, pain on movement, and swelling, and also stated that the functional impact of the Veteran's ankle condition included difficulty with prolonged walking, standing, carrying, and lifting, the Board finds that these functional limitations are all related to loss of motion, which is considered in the diagnostic criteria used to evaluate the Veteran's left ankle disability. The Board acknowledges that the Veteran reported functional loss/impairment during the January 2016 examination in the form of poor balance in addition to pain; and functional loss/impairment during the January 2017 VA examination in the form of an inability to walk more than very short distances without falling and being dependent on his wheelchair for mobility because of his left ankle condition. The Board further acknowledges that both VA examiners reported that fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time and that activity with standing and taking steps is limited because of a combination of poor balance, fatigue, weakness, and poor endurance. The January 2016 VA examiner also determined, however, that the Veteran's left lower extremity weakness is mainly due to a combination of the peripheral neuropathy and additional weakness/deconditioning from inactivity as result of using a wheelchair because of frequent falls that resulted mainly from the severe sensory neuropathy; and that impairment as a result of the service-connected disability played only a minor role in impaired balance as is evidenced by fairly good balance before the onset of peripheral neuropathy. Moreover, the January 2017 VA examiner determined that while the Veteran's left ankle condition on its own likely led to falls, the sensory loss from the peripheral neuropathy likely contributed the most to the Veteran's loss of balance. Based on these determinations, the Board finds that the functional limitations beyond pain noted subjectively and objectively during the January 2016 and January 2017 VA examinations are due primarily to the neurological deficits manifested in the Veteran's left ankle, which are not service-connected. In sum, the preponderance of the evidence supports the currently assigned 20 percent rating for residuals, status post left medial malleolus fracture. As there is no competent evidence of ankylosis of the left ankle, a higher rating is not warranted. The Board notes the Veteran has recently submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which the RO has recognized and is processing. However, the only disability listed on that form was posttraumatic stress disorder. The evidence does not reflect and it has not been argued that the Veteran is unemployable due solely to his left ankle disability, and further action with respect to the left ankle claim for increase is not required. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence has not been submitted, the claim for service connection for a back disorder, to include as secondary to service-connected status post left medial malleolus fracture, is not reopened, and the appeal is denied. Service connection for a left shoulder disorder is denied. A rating in excess of 20 percent for residuals, status post left medial malleolus fracture, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs