Citation Nr: 1801021 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-03 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for right shoulder impingement, status post acriomoplasty. 2. Entitlement to an increased rating for degenerative disc disease L5-S1 with possible compression fractures in excess of 10 percent prior to October 5, 2012 and in excess of 20 percent thereafter. 3. Whether new and material evidence has been received to reopen service connection for a left knee disability. 4. Entitlement to service connection for a left knee disability. 5. Whether new and material evidence has been received to reopen service connection for a right knee disability. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for pseudofolliculitis barbae. 6. Entitlement to service connection for impingement, left shoulder, REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran served on active duty from January 1995 to March 2002 and from April 2006 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issues of entitlement to an increased rating for lumbar spine disability, entitlement to service connection for a left knee disability, entitlement to service connection for a right knee disability, entitlement to service connection for pseudofolliculitis barbae, and entitlement to service connection for a left shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has range of motion of the right arm limited to midway between side and shoulder level. 2. A November 2008 rating decision denied reopening of claims for service connection for arthritis of the left and right knee. The Veteran did not appeal the November 2010 decision. 3. The evidence received since the November 2008 rating decision is neither cumulative nor redundant and raises a reasonable probability of substantiating the claims for service connection for left and right knee disabilities. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for right shoulder impingement, status post acriomoplasty, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, and 4.71a, Diagnostic Code 5201 (2017). 2. The November 2008 rating decision which denied reopening service connection for left and right knee disabilities is final. 38 8 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 3. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for left and right knee disabilities. 38 U.S.C. § (5108); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Right Shoulder Disability The Veteran's right shoulder disability under Diagnostic Code 5201. Examination reports reflect that the Veteran is right-handed; therefore, the rating criteria for the major extremity are applicable. Diagnostic Code 5201 provides that limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity and 20 percent rating for the minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Normal shoulder motion is from 0 to 180 degrees of forward elevation (flexion), from 0 to 180 degrees of abduction, and from 0 to 90 degrees of internal and external rotation. See 38 C.F.R. § 4.71, Plate I. Service connection for right shoulder impingement was granted in a January 2003 rating decision. A 20 percent rating was assigned from March 2002 to April 2006. The rating was discontinued from April 12, 2007 because the Veteran was on active duty. A 20 percent rating has been in effect since May 2009. A claim for an increased rating was received in May 2009. The Veteran had a VA examination in June 2009. The Veteran reported that he was involved in a car accident in Belle Chase, Louisiana and injured his right shoulder. He had a right shoulder arthroscopy in 1999. The Veteran reported pain on a daily basis, up to 10/10 in severity. He also reported swelling, popping, and clicking. On examination, the Veteran had forward flexion to 100 degrees, abduction to 100 degrees, internal rotation to 45 degrees, and external rotation to 30 degrees. He had pain at all endpoints of motion and pain with repetitive motion testing. The Veteran had a VA examination in October 2012. The examiner diagnosed recurrent impingement of the right shoulder. The Veteran reported pain with elevation of his arm, lifting objects, and attempting to sleep on his right side. Examination revealed right shoulder flexion to 95 degrees, with pain at 95 degrees and abduction to 95 degrees with pain at 95 degrees. There was no additional limitation with repetitive use testing. At the Board hearing, the Veteran demonstrated that he could lift his right arm approximately halfway to the shoulder level. The Board finds that a 30 percent rating is warranted for right shoulder impingement based upon evidence presented at the hearing which shows that the Veteran's motion of the right arm approximated midway between the side and shoulder level. The Board finds that a rating higher than 30 percent is not warranted. The Board has considered whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202. The range of motion findings for the right shoulder do not more nearly approximate the criteria for a higher rating. To qualify for the next higher 40 percent rating under DC 5201, shoulder abduction must be limited to 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Even considering additional functional loss due to pain, the limitation in range of motion due to pain, fatigue, or weakness, does not meet the criteria for a higher disability evaluation for right shoulder disability during the period on appeal. Accordingly, the Board finds that a higher rating is not warranted under the DeLuca criteria and section 4.59. See DeLuca, 8 Vet. App. at 206 -07; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board has considered whether any other diagnostic codes pertaining to the shoulder are applicable. DC 5200 pertains to ankylosis of the scapulohumeral articulation, DC 5202 pertains to impairment of the humerus, and DC 5203 pertains to impairment of the clavicle or scapula. See 38 C.F.R. § 4.71a. As there is no evidence showing that any of these conditions have been present during the appeal period, a higher rating is not assignable under those provisions. For the reasons set forth above, the Board concludes that a 30 percent rating, but no higher, is warranted for right shoulder impingement throughout the rating period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Claims to Reopen Service Connection for Knee Disabilities Service connection for left and right knee disabilities was previously denied in a September 2003 rating decision. The rating decision found that there was no treatment or diagnosis of any knee condition in service. The Veteran did not appeal the September 2003 rating decision, and it is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). A November 2008 rating decision denied reopening of the claims based on a finding that new and material evidence was not received. The Veteran did not appeal the November 2008 rating decision, and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C. § 5108 (2012); Evans v. Brown, 9 Vet. App. 273 (1996). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The Court of Appeals for Veterans Claims (the Court) has stated that the language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2010). The evidence previously of record included service treatment records. Service treatment records from the Veteran's first period of active duty show that the Veteran was involved in a motorcycle accident in August 1998 and a motor vehicle accident in June 1999. Service treatment records dated in June 2006 reflect that the Veteran reported knee pain. Evidence added to the record since that time includes a VA examination, VA treatment records, and the testimony presented at the June 2017 Board hearing. VA treatment records reflect current MRI findings of severe cartilage loss of the left knee. A VA joints examination dated in June 2009 reflects that the Veteran reported that his knee problems occurred in a motor vehicle accident in Louisiana in 1998 or 1999. He also reported that he fell on his knees in 2006. The examiner diagnosed bilateral chondromalacia. The examiner did not provide a nexus opinion. Post service treatment records dated in May 2010 reflect that the Veteran complained of knee pain since a training run. At the Board hearing the Veteran testified that he initially had knee problems after a motorcycle accident in service. The evidence received since the prior final rating decision is material. The Veteran's testimony reflects that he had knee symptoms after a motorcycle accident in service. Service treatment records indicate that he reported knee symptoms during his second period of active service. This evidence was previously unestablished. The Board is therefore reopening the claim for service connection for left and right knee disabilities. 38 C.F.R. § 3.156(a) (2017). The Board has considered the Veteran's claim(s) and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). ORDER New and material having been received, service connection for left and right knee disabilities is reopened. To that extent only, the claims are allowed. A 30 percent rating is granted for right shoulder impingement, status post acriomoplasty. REMAND The Veteran asserts that his knee and left shoulder disabilities related to accidents in service in 1998 and 1999 or alternatively, to training injuries in service. Regarding his skin disability, the Veteran testified that he did not have problems with his skin until he started shaving during service. In a March 2010 statement, the Veteran indicated that years of shaving caused an infection of his face. The Veteran is competent to testify to his visible skin symptoms, and the Board finds him s A June 2009 VA examination shows that the examiner diagnosed chondromalacia of both knees. The examiner also noted a history of possible rotator cuff tear of the left shoulder. The examiner did not include a nexus opinion regarding the etiology of the Veteran's bilateral knee and left shoulder disabilities. The examination is therefore inadequate to decide the claims. The Veteran had not been afforded a VA examination for his claimed skin disability. The Board finds there is insufficient competent evidence on file to make a decision on the claims, and a remand is required to obtain a VA examination and opinion to assess the etiology of the knee, left shoulder, and skin disabilities. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion and in weight-bearing and non-weightbearing. The VA examination of the lumbar spine in October 2012 did not include joint testing in active and passive motion and in weight-bearing and non-weightbearing. The examination is therefore inadequate. A remand is necessary to obtain a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his bilateral knee disabilities. The claims file must be made available to, and reviewed by, the examiner. (a) The examiner should diagnose all current disabilities of the right and left knees. (b) The examiner should obtain a complete history from the Veteran regarding his history of right and left knee symptoms. (c) The examiner should provide an opinion as to whether current right knee disability is at least as likely as not related to service. (d) The examiner should provide an opinion as to whether a current left knee disability is at least as likely as not related to service. The examiner should consider and discuss the Veteran's history of a motorcycle accident in August 1998; a motor vehicle accident in June 1999; and the complaint of knee pain noted in the service treatment record in June 2006. (e) The examiner should provide a complete rationale for the opinion, with references to the record. If an opinion cannot be expressed without resort to speculation, the examiner should explain why this is the case. 2. Schedule the Veteran for a VA examination for his left shoulder disability. The claims file must be made available to, and reviewed by, the examiner. (a) The examiner should diagnose all current left shoulder disabilities. (b) The examiner should obtain a complete history from the Veteran regarding his history of left shoulder symptoms. (c) The examiner should provide an opinion as to whether current left shoulder disability is at least as likely as not related to service. The examiner should consider and discuss the Veteran's history of a motorcycle accident in August 1998; a motor vehicle accident in June 1999; and the complaint of left shoulder pain noted in the service treatment record in 2006. (e) The examiner should provide a complete rationale for the opinion, with references to the record. If an opinion cannot be expressed without resort to speculation, the examiner should explain why this is the case. 3. Schedule the Veteran for a VA examination for pseudofolliculitis barbae. The claims file must be made available to, and reviewed by, the examiner. (a) The examiner should diagnose any current skin disorder. (b) The examiner should provide an opinion as to whether current skin disability is at least as likely as not related to shaving during service. The examiner should consider the Veteran's testimony that his skin problems began after he started shaving. (c) The examiner should provide a complete rationale for the opinion, with references to the record. If an opinion cannot be expressed without resort to speculation, the examiner should explain why this is the case. 4. Schedule the Veteran for a VA examination of the lumbar spine. The claims file must be made available to, and reviewed by, the examiner. The examination report should indicate that the claims file was reviewed. All indicated tests should be performed and all findings should be reported in detail. Complete range of motion findings for the lumbar spine should be reported in degrees. The testing for lumbar spine range of motion for pain must be based on both active and passive range of motion, and weight-bearing/ non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should determine whether the lumbar spine disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. If there is pain on motion, the examiner should note the point in the range of motion where pain occurs. In addition, if there are flare-ups, the examiner should, to the extent possible, note any additional limitation of motion during flare-ups. The examiner should assess the frequency and duration of any episodes of intervertebral disc syndrome, should describe the frequency and duration of any periods during which intervertebral disc syndrome has required bed rest prescribed by a physician. A rationale for all opinions should be provided. 5. Following the completion of the requested actions, readjudicate the claims. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (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). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs