Citation Nr: 1752913 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-25 466A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to an increased rating for a right shoulder disability, currently rated as 10 percent disabling. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a stomach disability. 4. Entitlement to service connection for a bilateral knee disability. 5. Entitlement to service connection for dental problems. REPRESENTATION Appellant represented by: Rosie Lancaster, Individual Representative WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1977 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Veteran died in October 2011. Within a year of his death, the Veteran's surviving spouse filed a request with the RO to be substituted as the appellant. The RO granted the appellant's request to be substituted (under 38 U.S.C.A. § 5121A) in the Veteran's appeal and informed her of the decision by a letter dated in February 2012. Accordingly, the appellant has been substituted as the claimant for the purposes of the service connection and increased rating issues on appeal. The appellant testified before the Board at a videoconference hearing in August 2017. Subsequent to the hearing, additional VA treatment reports were submitted without a waiver of review by the Agency of Original Jurisdiction (AOJ). However, the records are either duplicative or cumulative of evidence already considered by the AOJ and the appellant is not prejudiced by the Board's adjudication of the issues on appeal. FINDINGS OF FACT 1. Range of motion testing does not reveal that the Veteran's right shoulder results in limitation of motion of the arm at shoulder level; the right shoulder disability is not manifested by impairment of the humerus or nonunion or dislocation of the clavicle or scapula. 2. The Veteran's claimed low back disability is not attributable to his active duty service. 3. The Veteran's claimed stomach disability is not attributable to his active duty service. 4. The Veteran's claimed bilateral knee disability is not attributable to his active duty service. 5. The Veteran's claimed dental problems are not attributable to his active duty service. CONCLUSIONS OF LAW 1. Criteria for a rating in excess of 10 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5201 (2017). 2. Criteria for service connection for a low back disability have not been met. 38 U.S.C. § 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. Criteria for service connection for a stomach disability have not been met. 38 U.S.C. § 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. Criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. § 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 5. Criteria for service connection for dental problems have not been met. 38 U.S.C. § 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained. With regard to the claim for an increased rating for a right shoulder disability, a VA examination was obtained (the report of which has been associated with the claims file), which the Board finds to be adequate for rating purposes. Additionally, the VA examiner had a full and accurate knowledge of the Veteran's disability and contentions, and grounded the findings on objective testing and the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, prior to his death, the Veteran did not object to the adequacy of the examination conducted during this appeal nor has the appellant objected to the adequacy of the examination. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). With regard to the service connection claims on appeal, while VA medical opinions were not provided, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). In this case, with regard to claimed service connection disabilities, the Veteran contends that his low back disability, stomach disability, bilateral knee disability, and dental problems were related to service. The Veteran did not claim a continuity of symptoms of any of the disorders since service. As such, the Veteran's lay statements are insufficient to trigger VA's duty to provide examinations with opinions. See Waters, 601 F.3d 1274. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. Increased Rating - Right Shoulder Disability Historically, the Veteran submitted a claim for an increased rating for his service-connected right shoulder disability in December 2010. In an August 2011 rating decision, a 10 percent rating was continued for the service-connected right shoulder strain pursuant to Diagnostic Codes 5299-5201. See 38 C.F.R. § 4.71a. Prior to his death, the Veteran disagreed with the denial of his claim and this appeal ensued. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The shoulder is a major joint. 38 C.F.R. § 4.45. The Board notes that during the course of the appeal, the Court of Appeals for Veterans' Claims (Court) held, in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Veteran's right shoulder disability is rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that an unlisted musculoskeletal disability, under Diagnostic Code 5299, was the service-connected disability, and limitation of motion of the arm, under Diagnostic Code 5201, was a residual condition. As an initial matter, the Board notes that the medical evidence of record shows that the Veteran is right-handed. Therefore, for rating purposes, his right shoulder is considered his major or dominant extremity. 38 C.F.R. § 4.69. Diagnostic Code 5201 pertains to limitation of motion of the arm and provides that a 20 percent rating is warranted for limitation of motion of the dominant or non-dominant arm at shoulder level. A 30 percent rating is warranted for limitation of motion of the dominant arm midway between side and shoulder level. A 40 percent rating is appropriate for limitation of motion of the dominant arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal forward elevation of a shoulder (flexion) and normal abduction is to 180 degrees. Normal internal and external rotation is to 90 degrees. 38 C.F.R. § 4.71, Plate 1 (2017). At a VA examination in May 2011, the Veteran endorsed pain, stiffness, and popping in his right shoulder. Range of motion of the left shoulder revealed normal ranges of motion including forward flexion, abduction, and internal and external rotation. Range of motion of the right shoulder revealed forward flexion from 0 to 170 degrees which was unchanged after five repetitions of motion, abduction from 0 to 165 degrees which was unchanged after five repetitions of motion, and internal and external rotation from 0 to 90 degrees which was unchanged after five repetitions of motion. The examiner noted pain on examination but no fatigue, weakness, lack or endurance, or incoordination. The examiner indicated that there was no instability noted on examination. The examiner concluded that the Veteran's right shoulder strain was mild and the Veteran reported that the condition was improving. The Board finds that the Veteran's right shoulder disability does not warrant a rating in excess of 10 percent at any time during the relevant time period on appeal. The Veteran had some limitation of motion of his right (dominant) shoulder, with pain. However, there is no evidence to indicate that there was limitation of motion of the arm to shoulder level at any time during the relevant time period at issue. Accordingly, the Veteran is not entitled to a rating in excess of 10 percent at any time during the relevant time period on appeal. The Board has also considered other diagnostic codes for possible application. However, the evidence of record does not indicate ankylosis or impairment of the scapula, humerus, or clavicle. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. Thus, the Veteran is not entitled to a rating in excess of 10 percent under any other diagnostic codes. The evidence of record shows reports of pain on use. However, there was no evidence of fatigue, weakness, lack of endurance, instability, or incoordination on examination. On examination, the VA examiner specifically indicated that there was no evidence of any additional loss of motion on repetition. Those findings do not suggest that any functional impairment caused by more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse equated to what is necessary for the award of a rating in excess of 10 percent. 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). Neither the appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Historically, the Veteran submitted claims for service connection for a low back disability, a stomach disability, a bilateral knee disability, and dental problems in December 2010. The claims were denied in an August 2011 rating decision. Prior to his death, the Veteran disagreed with the denial of his claims and this appeal ensued. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A review of the Veteran's service treatment reports (STRs) does not reflect any complaints, findings, or treatment for a low back disability, a stomach disability, a bilateral knee disability, or dental problems. The August 1977 enlistment examination reveals a normal clinical evaluation of all systems. In January 1983, the Veteran signed a waiver and agreed to forego a separation examination. Post-service VA treatment reports dated as early as August 1998 do not reflect any complaints, findings, or treatment for a low back disability, a stomach disability, a bilateral knee disability, or dental problems. The records reflect that the Veteran was noted to wear dentures. In August 2017, the appellant testified that during their marriage, the Veteran reported that he sustained an injury and hurt his back during service. She indicated that he related his knee problems to service but he never reported any injury to the knees. She testified that he took medication for his claimed stomach disability. She noted that he was supposed to have X-rays of his knees but he passed away prior to that appointment. The appellant reported that the Veteran fell during service and lost some teeth and had to get partial dentures. With regard to the claims for service connection for a low back disability, a stomach disability, a bilateral knee disability, and dental problems, in considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for any of the claimed disabilities. In all claims for service connection, the threshold requirement is evidence of a currently diagnosed disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). The record does not show a diagnosis of a low back, stomach, bilateral knee, or dental disorder during service or at any time since service. As noted, the Veteran's STRs do not document treatment for any of the claimed disabilities. Moreover, the post-service treatment reports do not document any complaints, findings, or treatment for the low back, stomach, knees, or teeth. While the appellant reported that the Veteran had treatment for all of his claimed disorders, the post-service treatment reports are silent for treatment for the claimed disabilities. Symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability. Without a pathology to which such symptoms can be attributed, there is no basis upon which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). Consequently, although the Veteran claimed that he had a low back disability, a stomach disability, and a bilateral knee disability, as well as dental problems, the fact remains that he was not diagnosed with any low back, stomach, bilateral knee, or dental disorder prior to his death. As a result, there is no evidence to establish the presence of any of the claimed disabilities during the Veteran's appeal. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claims are denied. ORDER Entitlement to an increased rating for a right shoulder disability, currently rated as 10 percent disabling is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a stomach disability is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for dental problems is denied. ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs