Citation Nr: 1801124 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-54 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to a rating higher than 10 percent for left patellofemoral pain syndrome. 3. Entitlement to a rating higher than 10 percent for right patellofemoral pain syndrome. 4. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from June 1994 to June 1997 and from October 2000 to February 2004. This appeal to the Board of Veterans' Appeals (Board) is from September 2010 and August 2012 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2017, the Veteran had a personal hearing before the undersigned VLJ. The Veteran's testimony suggests that he is unemployable due to his knees. Accordingly, a request for a TDIU has been added for consideration. In this decision, the Board is denying the Veteran's service connection claim, as set forth below. His right and left knees will each be granted an increase; however, they require additional development and are REMANDED, along with entitlement to TDIU, to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence preponderates against finding a relationship between his right shoulder disability and his service. 2. His right and left knee patellofemoral pain syndrome each manifest with functional loss that is the equivalent to flexion limited to 30 degrees in both knees, since his claim filed in May 2010. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for right shoulder disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria are met for a 20 percent rating for limited flexion for both the right and left knee, effective May 4, 2010. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5260 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claims 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). Service connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The record shows the Veteran has been diagnosed with right shoulder strain at the January 2012 VA examination, and right AC joint arthropathy with impingement and right labral tear at the April 2016 VA examination. During his February 2017 hearing, the Veteran described hurting his shoulder while playing flag football. He said he was diagnosed with a "strain/sprain" by the Corpsman, treated with heat and Motrin, and given light duty. His STRs show complaint and treatment for shoulder pain in the 1990s, during his first period of service. The injury was in April 1995, and he was to return in one week if the pain had not subsided. In June 1996, he returned complaining that he had had pain for about five days after weightlifting, and it was noted he had been treated for pain in the same area in April 1995. In July 1996, he returned complaining of no improvement to his pain, and it was noted he was not following medical advice regarding physical therapy. He was diagnosed with rotator cuff sprain. At his separation examination in April 1997, he reported injuring his shoulder, but no diagnosis was made. He did not complain of shoulder problems at the October 2000 entrance examination at the beginning of his second period of active duty, nor did he at his July 2003 separation examination. He separated from each period of service without a right shoulder diagnosis. He asserted that his right shoulder has given him problems since he was in service, and during his second period of service, although he did not seek treatment for it during his second period of service. He asserts his current diagnosis is related to that injury. The January 2012 VA examiner diagnosed right shoulder strain secondary to work and hobby-related causes. She opined his strain was less likely related to service, noting that he had a rotator cuff sprain in 1996 that healed, and there were no complaints in his second period of service. She noted that he reported to her that his pain began in 2011. She indicated that he had been working in a warehouse position, which required repetitive lifting and use of his shoulder for the preceding six years when his shoulder reportedly began to hurt. She also noted that he frequently played golf. Based on his reports and the medical evidence, she attributed his right shoulder diagnosis to work and hobbies. The April 2016 VA examiner diagnosed an in-service right shoulder strain that was temporary and without residuals, and right AC (acromio-clavicular) joint arthropathy with impingement and right labral tear that is a new and separate condition. He clarified that the current diagnoses were not related to the in-service symptoms. In support, he indicated he had reviewed the file and the Veteran's statements, and noted the symptoms and treatment in the 1990s. He noted no abnormalities found at the Veteran's June 1997 separation, and no complaints or symptoms during his second period of service, which supports that the injuries during the first period of service were temporary. He noted in July 2003 there were no findings of shoulder abnormalities. He noted the January 2012 VA examiner's findings and opinion, citing to January 2011 VA X-rays showing early joint arthropathy, that has since become arthritis, as seen in a February 2016 VA treatment record. The examiner noted the Veteran continued to work performing warehouse labor. He indicated that a labral tear is commonly found in people performing repetitive motion, especially overhead. He noted that [t]raumatic arthritis of the shoulder is a form of osteoarthritis that develops after an injury, such as a fracture or dislocation of the shoulder. It is more common in the glenohumeral joint than in the acromio-clavicular joint. Osteoarthritis arthritis is a degenerative condition that occurs with aging ... and is more common in the acromio-clavicular joint than in the glenohumeral shoulder joint. ... Since the condition is mild right labral tear..., and since there is no glenohumeral arthritis present as would probably be present if the labral tear occurred during military service, [and] since the Veteran was over 40 [years old] at time of diagnosis, and since the Veteran has a robust and labor oriented post-military occupational history, the most likely etiology of the labral condition is related to normal degenerative process of aging. ...[S]ince the Veteran was older at time of diagnosis, and again, since the Veteran has a robust and labor oriented post-military occupational history, the most likely etiology of the AC joint arthropathic condition is related to normal degenerative process of aging. In addition, one would expect more degenerative changes on the dominant side (right) as it is more frequently used extremity. He cited to medical literature in setting forth the above opinion. He indicated that it was more likely than not that the Veteran's current diagnoses were caused by his work and by the degenerative changes of aging. The Board finds these opinions to be probative to the issue of whether the symptoms in service caused persistent problems that led to his current strain and arthritis. The Board further finds these examination opinions to be adequate for adjudication, as the examiners reviewed the relevant evidence, including the Veteran's contentions, and rendered opinions with all of the evidence in mind. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has not raised any objections to the findings or methods of the VA examiners. The Board notes the Veteran was advised during his hearing that these VA examination opinions weighed against his claim, and that a positive nexus to service that addressed the opinions of record still needed to be shown. Bryant v. Shinseki, 23 Vet. App. 488 (2010). None has been received. In support of his claim, the Veteran has submitted a medical report from his treating physician, which shows that he has had right shoulder issues since his service. There is no discussion of the VA examiners' negative opinions or any opinion that links his current diagnosis to his in-service symptoms. Without some additional explanation that addresses the VA examiners' opinions or the second period of service, the Board finds that this medical report is outweighed by the negative VA examination reports. The Board has considered the Veteran's statements regarding ongoing pain since the initial injury that he argues eventually resulted in his current diagnosis, but finds these statements less probative than the VA medical opinions. Primarily, the Veteran has not been shown to have the training or expertise to competently render an opinion as to the cause of his current right shoulder strain and arthropathy. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Indeed, two VA examiners investigated the possibility and found it less likely. Jandreau, supra. Further, the Board does not find that his statements are a reliable accounting of the history of his symptoms. Although a lack of documentation in the STRs and post-service treatment records is insufficient to render lay evidence not credible (see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)), there is contemporaneous evidence showing he affirmatively denied having shoulder pain or other issues (for instance at the October 2000 entrance examination and the July 2003 separation examination). The entrance and separation examinations also show normal clinical evaluations of the shoulders. The Board places more weight on these reports of these examinations, conducted by medical professionals for treatment purposes years ago, than it does on his recent statements to VA in connection with this claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility). Further, he did not report to the January 2012 VA examiner that he had ongoing symptoms; rather, he reported an onset of shoulder trouble in 2011. Because of these inconsistencies, the Board does not place much weight on his statements of persistent symptoms. Accordingly, the preponderance of the evidence weighs against a relationship between his right shoulder and his service. Service connection must be denied. Increased rating As a threshold matter, the Board finds this claim has been pending since May 4, 2010, the date of receipt of a claim for an increased rating for his knees. This claim was denied in the September 2010 decision. The Veteran filed a statement in May 2011 asking for an increased rating, which the RO treated as a new claim. As this statement was received within the one-year time period for appealing a rating decision, the Board construes the statement as a NOD (notice of disagreement) to the September 2010 decision. See 38 C.F.R. § 20.200. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 The Veteran's right and left knee disabilities are each rated 10 percent disabling under both DC 5260 for limited flexion. He asserts that his symptoms warrant higher ratings. Under DC 5260, flexion limited to 45 degrees is assigned a 10 percent rating. Flexion to 30 degrees is assigned a 20 percent rating; to 15 degrees, a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. During his hearing, the Veteran testified to having extreme and constant pain at all times. He reported that he has been issued braces and has constant pain. His knee cracks and pops. He said that he cannot stand longer than 15 minutes, or keep them in a bent position for longer than 5. He reported at the most previous VA examination that he cannot walk an excessive amount. He reported flares that prevent all activity for a few hours at a time. He said that he has had cortisone shots that have not worked. His VA examinations, in July 2011, January 2012, and April 2016, show these complaints have increased in severity over the years. Based on this evidence, and in resolving all doubt in the Veteran's favor, the Board finds that increased ratings are warranted in both knees. In regard to limited flexion, the Board finds that he has provided sufficient evidence to show that his functional loss is roughly the equivalent to having flexion limited to 30 degrees, and that a 20 percent rating for limited flexion is warranted for each knee, effective from May 4, 2010, the date of receipt of his claim. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 3.400, 4.71a, DC 5260. As the knees are being remanded for additional development, further discussion of the applicable DCs is not currently necessary. ORDER The claim of entitlement to service connection for a right shoulder disability is denied. A 20 percent rating is granted for each knee, effective May 4, 2010. REMAND The Veteran's remaining issues require additional development. In regard to his bilateral knees, an updated VA examination must be scheduled. He also reported having private treatment on the knees, and should be given an opportunity to update the record. In regard to his claim for TDIU, this claim must be developed. The record shows he is still working, although he reported during his hearing that he only worked part-time because of his knees. This suggests that he is only working marginal employment. Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran for authorization to obtain records of private treatment on the knees. 2. Contemporaneously with the above, ask the Veteran to complete an Application for Increased Compensation Based on Unemployability (VA Form 21-8940), and to provide information regarding his income for the last year. 3. Schedule an appropriate examination for a report on the current severity of the Veteran's right and left knee disabilities. Conduct range of motion testing, and indicate the point at which motion is limited by pain. The examiner is asked to test both active and passive range of motion, in both weight-bearing and non-weight-bearing positions. 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 is asked to describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner is asked to elicit from the Veteran a detailed history of his functional loss, and his symptoms during flares and after repeated use, including estimates of additional loss of motion, which can be used to inform such an opinion on the extent of functional loss. The examiner is asked to comment on the severity of the Veteran's instability/subluxation. The examiner is asked to comment as to whether the Veteran has any symptoms related to the semilunar cartilage. All appropriate diagnostic tests should be conducted. All opinions are to be supported by explanation. 4. After completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs