Citation Nr: 1756988 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-16 407 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection the residuals of a traumatic brain injury. 3. What initial rating is warranted for lumbosacral degenerative disc disease? WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to December 1969. Thereafter, he had extensive service in the reserve. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In light of the evidence provided by the Veteran in connection with his claim of entitlement to service connection for residuals of a traumatic brain injury, the Board has recharacterized this issue to specifically include headaches. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran testified at a June 2014 Travel Board hearing before the undersigned. In a March 2015 decision, the Board raised the rating for lumbar degenerative disc disease to 10 percent. The Board then remanded that claim to the Agency of Original Jurisdiction (AOJ) for consideration of the appellant's entitlement to a still-higher rating. The Board also directed additional development with respect to the issues of service connection for a right shoulder disability and for residuals of a traumatic brain injury, including headaches. Following the requested development, the AOJ confirmed and continued the denials of service connection for a right shoulder disability and for residuals of traumatic brain injury. The AOJ also denied a rating in excess of 10 percent for the Veteran's lumbosacral spine disorder. Thereafter, the case was returned to the Board for further appellate action. The issue of service connection for the residuals of a traumatic brain injury, including headaches requires additional development. Accordingly, it is addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. A right shoulder disability, diagnosed primarily as tendonitis and arthritis, was first manifested years after the Veteran's separation from active duty, and the preponderance of the competent evidence of record is against a finding that it is in any way related thereto. 2. The Veteran's lumbosacral degenerative disc disease is not manifested by forward thoracolumbar flexion less than 61 degrees; or by a combined range of thoracolumbar motion less than 121 degrees; or by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSIONS OF LAW 1. A right shoulder disability is not the result of disease or injury incurred in or aggravated by service, nor may right shoulder arthritis be presumed to have been so incurred. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1113, 5103, 5103A (2012); 38 C.F.R. §§ 3.6(a), 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for an initial rating in excess of 10 percent for lumbosacral degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, the claimant has a responsibility to present and support a claim for VA benefits. 38 U.S.C. § 5107 (2012). VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. In September 2008, VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete his claims. VA then obtained identified and available evidence, conducted examinations, and provided the Veteran a hearing before the Board. There is no evidence of any VA error in notifying or assisting the Veteran in the development of his claims; and therefore, the Board will proceed to the merits of the appeal. Service Connection for a Right Shoulder Disability During his June 2014 hearing, the Veteran testified that his right shoulder disability was primarily the result of numerous falls sustained while participating in sports. He noted that his right shoulder problems had continued since; and therefore service connection for a right shoulder disability was warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. The Veteran is competent to report his right shoulder symptoms and what he experienced during and since his separation from service. Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no evidence to suggest that he is competent by training or experience to diagnose the pathology causing his right shoulder symptoms. The question of an etiologic relationship between any current disability and service involves a medical issue. Thus, the question of etiology may not be competently addressed by lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (2009). In this case, not only is a chronic, identifiable right shoulder disability uncorroborated by the evidence in the service; it is contradicted by more contemporaneous and probative evidence of record. Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a compensable degree within one year of a veteran's discharge from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. § 3.307. In addition, service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6(a). The Veteran's service treatment records and the reports of multiple examinations, including his July 1965 service entrance examination, are negative for any complaints or clinical findings of a chronic, identifiable right shoulder disorder. At his December 1969 separation examination the appellant was found to have clinically normal upper extremities. It is reasonable to expect that had the Veteran sustained a right shoulder injury in service, he would have sought medical assistance. Indeed, the record shows that he sought medical treatment for a number of other musculoskeletal disorders in service, such as left ankle pain in March 1966, a mild left ankle sprain in August 1966, hip pain in August 1968, and tendonitis of the wrists in August 1995. That he did not do so following any of his reported right shoulder injuries is evidence against the claim. A chronic, identifiable right shoulder disability was not manifested until April 2003, when VA treatment records revealed the presence of right shoulder bursitis. Although the Veteran maintains that such disability was the result of his participation in sports in service, the preponderance of the evidence is against that claim. In August 2013, the appellant's ex-wife reported that from 1974 to 1987, while stationed in Germany, the Veteran participated in numerous sports, including handball. She noted that during those games, he would often crash into walls with his right shoulder necessitating treatment by a local doctor. Efforts to obtain records of that treatment have been unavailing. Following an evaluation in September 2014, B. M. R., M.D. opined that the Veteran's right shoulder pain could be due to early arthritis which could have been caused in part or in whole by his military service. While favorable to the Veteran, the speculative or vague language employed by Dr. R. is of limited, if any, probative value in substantiating the claim. Stegman v. Derwinski, 3 Vet. App. 228 (1992) (Evidence favorable to a veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection.) Moreover, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). Nevertheless, in March 2017, VA examined the Veteran to determine the nature and etiology of any right shoulder disability found to be present. Following the March 2017 VA examination, the Veteran was diagnosed with bicipital tendonitis of the right shoulder. X-rays also revealed the presence of arthritis in the shoulder. The VA examiner opined that it was less likely than not that the Veteran's right shoulder disability had been incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's service treatment records and multiple examination reports were negative for shoulder problems into the mid-to-late 1990's. The examiner also noted that the Veteran could not recall any treatment for his shoulders after leaving the service or any injury that ever made a one time difference in the shoulder. Instead, the Veteran stated that the shoulder just has gotten worse over forty to fifty years. The examiner noted that such a scenario was consistent with age-related tendonitis not an injury. Therefore without any evidence of specific injury or treatments, the examiner opined that the right shoulder disability was not at least as likely as not related to service. The Board places greater probative weight on the VA examiner's opinion than that offered by Dr. R. The VA examiner's opinion was based not only on an examination and interview of the Veteran but also on a review of the claims file and associated medical records. In addition, the VA examiner clearly stated how and why he reached the opinion he did. As such, the VA examiner's opinion is more full and complete than that of Dr. R. In sum, the preponderance of the most probative evidence is against the Veteran's claim for service connection for a right shoulder disability. Absent evidence of a chronic, identifiable right shoulder disability in service or probative evidence of a nexus to service, the Veteran does not meet the criteria for service connection. Accordingly, entitlement to service connection for a right shoulder disability is not warranted. In arriving at this decision, the Board considered the doctrine of reasonable doubt, however, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017). Increased Rating for Low Back Disability During his June 2014 hearing, the Veteran testified that the rating for lumbar degenerative disc disease did not adequately reflect the severity of that disorder. Therefore, he maintained that an increased rating was warranted. Again, however, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. The Veteran's lumbar degenerative disc disease is rated as intervertebral disc syndrome and is evaluated in one of two ways: either on the basis of the total duration of incapacitating episodes in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5243 or on the general rating formula for rating diseases and injuries of the spine. Concerning the latter the formula provides that ratings are assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, when the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness which does not result in an abnormal gait or abnormal spinal contour; or, when there is a vertebral body fracture with a loss of 50 percent or more of the vertebral body height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Under Diagnostic Code 5243, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. 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 determining the adequacy of assigned disability ratings, consideration must be given to factors affecting functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, excess fatigability, and incoordination, as well as the effects of the disability on the veteran's ordinary activity. 38 C.F.R. § 4.10, 4.45. During the course of an appeal, a veteran 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, when service connection is granted and an initial rating award is at issue. Separate ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The evidence shows that since service connection became effective on August 4, 2008, the Veteran has been treated by private practitioners and VA. He was most recently examined by VA in April 2017. Records reflecting the Veteran's treatment since August 2013, generally show that the appellant had a normal gait and station, normal tone and strength in both legs, normal reflexes, and intact sensation. During treatment at Family Health Partners in July 2014, the Veteran characterized his low back pain as intermittent in nature and mild in severity with acute exacerbations. Physical examination revealed normal strength, low back motion, straight leg raising, and knee and ankle reflexes. It was recommended that the Veteran perform stretching exercises and start walking, gradually building up to thirty minutes most days of the week. Following treatment in September 2014, B. M. R., M.D. stated that the Veteran's neurologic processes had not been compromised by his service-connected low back disability. During his June 2017 VA examination, the Veteran reported that his back disability was manifested by pain and stiffness which increased with lifting and carrying. He stated that the pain radiated sideways but did not radiate into his legs. He noted that there was no loss of strength or sensation in his legs. On examination, the Veteran was able to flex his thoracolumbar spine to 75 degrees and had a combined range of low back motion of 175 degrees. All motions were accompanied by pain, and he had mild tenderness to palpation. Without resort to mere speculation, the VA examiner was unable to say whether pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time. The examiner noted that the Veteran was able to perform repetitive motion but that during exacerbations the range of motion would be reduced. Still, even during exacerbations the examiner stated that the Veteran would still have flexion to 70 degrees and a combined range of motion of 160 degrees. The examiner noted that the Veteran's employment would be impaired by his limitations in lifting and carrying but that sedentary employment and his activities of daily living would be unaffected. The examiner opined that the Veteran's limitation of back function was of mild to moderate severity. In sum, the primary manifestations of the Veteran's low back disability have been pain, stiffness, and limitation of motion. Significantly, flexion is still shown to at least 70 degrees and a combined range of motion of at least 160 degrees. Although the claimant experiences acute exacerbations, particularly when he has to lift something heavy, there is no evidence of any incapacitating episodes as that term is defined by VA. The appellant's neurologic processes are normal, and there is no evidence of muscle spasm, guarding, or localized tenderness. There is also no evidence that he walks with an abnormal gait or that he has an abnormal spinal contour or vertebral body fracture. While he may be precluded from physically demanding employment, sedentary forms of work would be available. His performance of the activities of daily living remain unaffected. Indeed, he continues to perform yard work, and stretching exercises and walking up to thirty minutes have been recommended. On balance, such findings meet or more nearly approximate the schedular criteria for a 10 percent rating under the general rating formula. Accordingly, entitlement to an increased rating is denied. In arriving at this decision, the Board notes that the question of entitlement to referral for consideration of an extraschedular rating is neither an issue argued by the claimant nor a question reasonably raised by the record through evidence of the collective impact of the Veteran's service-connected disabilities. Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to an initial rating in excess of 10 percent for lumbar degenerative disc disease is denied. REMAND In April 2017, a board-certified neurologist performed a VA examination to determine the nature and etiology of any diagnosed residuals of a traumatic brain injury. At that time, the most recent CT of the Veteran's brain available to the examiner had been performed in 2009. The examiner recommended an additional CT scan of the Veteran's brain. To date, that CT scan has not been performed. During a consultation with the VA Neurology Service in January 2015, it was noted that the Veteran had had a repeat CT scan of his head in August 2014. In light of the foregoing, the case is REMANDED for the following action: 1. With the appellant's informed consent, schedule him for a CT scan of his brain. Then forward the results of that scan to the board-certified neurologist who performed the April 2017 VA examination. Also ensure that the VA neurologist be forwarded any report from the CT scan of the Veteran's head that was reportedly performed in August 2014. Following a review of those CT scans and all of the other evidence of record, the examiner must opine whether it is at least as likely as not (at least a 50/50 chance) that the Veteran has residuals of a traumatic brain injury and, if so, whether or not, they are related to any incident in service. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.. If the board-certified neurologist who performed the April 2017 VA examination is unavailable, forward the record to a similarly qualified VA examiner for review and opinion. If a new reviewer is unable to offer an opinion without the benefit of an additional VA examination, that examination must be scheduled. 2. Then after undertaking any other indicated development readjudicate the issue of entitlement to service connection for the residuals of a traumatic brain injury, including headaches. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the AOJ. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs