Citation Nr: 1803766	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  13-01 516	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Entitlement to service connection for a right foot disability, to include as secondary to a service-connected disability.

2. Entitlement to service connection for a left foot disability, to include as secondary to a service-connected disability.

3. Entitlement to service connection for a right leg disability, to include as secondary to a service-connected disability.

4. Entitlement to service connection for a left leg disability, to include as secondary to a service-connected disability.

5. Entitlement to a rating in excess of 10 percent prior to September 29, 2016, and in excess of 20 percent effective from September 29, 2016, for postoperative residuals of a right clavicle fracture.



REPRESENTATION

Appellant represented by:	Mississippi State Veterans Affairs Board


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D.M. Casula, Counsel


INTRODUCTION

The Veteran had active military service from March 1986 to July 1996.

This case comes before the Board of Veterans' Appeals (Board) from February 2010 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 

The Veteran testified before a Decision Review Officer (DRO) in July 2011.  A transcript of the hearing is associated with the claims file.

In March 2015, the Board remanded this case for additional development.

While on remand, the RO increased the rating for the Veteran's service-connected postoperative residuals of a right clavicle fracture from 10 percent to 20 percent, effective September 29, 2016 (date of VA examination).  See August 2017 rating decision.  As this grant does not constitute a full grant of the benefit sought, this claim remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The issues of entitlement to service connection for right and left foot disabilities and right and left leg disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Prior to September 29, 2016, the Veteran's postoperative residuals of right clavicle fracture were manifested by pain and limitation of motion; however, there was no showing of limitation of shoulder motion to the shoulder level (90 degrees), even considering any pain on motion; nor has there been evidence of ankylosis; recurrent dislocation; malunion, fibrous union, nonunion, or loss of the head of the humerus; or impairment of the clavicle or scapula

2. From September 29, 2016, the Veteran's postoperative residuals of right clavicle fracture were manifested by pain and limitation of motion; but there was no showing of ankylosis, limitation of motion of the arm to midway between the side and shoulder level (approximately 45 degrees) even considering pain, fibrous union or nonunion of the humerus, or loss of head of the humerus.


CONCLUSIONS OF LAW

1. Prior to September 29, 2016, the criteria for a rating in excess 10 percent for postoperative residuals of a right clavicle fracture were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes (DC) 5003-5201 (2017).

2. From September 29, 2016, the criteria for a rating in excess 20 percent for postoperative residuals of a right clavicle fracture were not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, DCs 5003-5201 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159.  For the issues decided in the instant document, VA provided adequate notice in a letter sent to the Veteran in November 2009.

The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims.  VA has obtained all identified and available service and post-service treatment records for the Veteran, and VA examinations were conducted in 2009, 2016, and 2017.  It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained, and neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal.  Also, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  In summary, the Board finds that appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II. Laws and Regulations

Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition.  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. 

Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern.  Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The record reflects that the Veteran's residuals of right clavicle fracture have been rated pursuant to Diagnostic Codes (DCs) 5003 and 5201. 

Ratings for disabilities of the shoulder vary with the extent of disability and with which arm is affected, and a distinction is made between major (dominant) and minor sides, or "handedness."  38 C.F.R. § 4.69.  The Veteran is right-handed; thus, his right shoulder is considered the major upper extremity.

Under DC 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, DC 5003.  

Under DC 5201, limitation of motion of the major extremity at the shoulder level warrants a 20 percent rating.  Limitation of motion midway between the side and shoulder level warrants a 30 percent rating for the major extremity.  Where motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity.  38 C.F.R. § 4.71a, DC 5201. 

Normal range of motion of the shoulder is flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, and internal and external rotation from 0 to 90 degrees.  38 C.F.R. § 4.71a, Plate I. 

1. Rating in Excess of 10 Percent, Prior to September 29, 2016

The Veteran contends he should be entitled to a rating in excess of 10 percent, for his residuals of right clavicle fracture, effective prior to September 29, 2016.  Review of the competent evidence of record for that period includes a VA examination dated in December 2009, at which the Veteran reported his condition had gradually worsened over the years since he injured his clavicle in service.  He reported chronic nagging pain in the shoulder, and that fast movements of the shoulder, overhead activity, or activity such as lifting and carrying caused pain.  He reported flare-ups, but was unable to state the frequency because it depended on his activity level.  Flare-ups lasted about a day and were relieved by medications and rest.  Examination revealed he stood with the right shoulder slightly lower than the left, and prominence and deformity of the right mid clavicle.  No tenderness to palpation was noted.  He had tenderness over the right scapular region.  Range of motion testing revealed 0 to 160 degrees of flexion and abduction, 70 degrees of internal and external rotation, and 40 degrees of extension and 40 degrees of adduction, with slight pain at the endpoints of motion.  There was no additional limitation in motion after repetitive motion, and right shoulder strength was normal.  An x-ray revealed no acute fracture or dislocation, mild narrowing of the medial joint compartment with small marginal osteophyte formation, and no joint effusion.

Accordingly with regard to the service-connected residuals of right clavicle fracture, prior to September 29, 2016, although the competent medical evidence shows that the Veteran exhibited limitation of motion of the right shoulder, at no time was there ankylosis (DC 5200) or limitation of motion at shoulder level (DC 5201).  Moreover, there were no complaints of or findings of separation or dislocation of the shoulder, nonunion of the clavicle or scapula, or malunion of the humerus, such that a rating in excess of 10 percent would be warranted under DC 5202 or DC 5203.  

With regard to 38 C.F.R. § 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995), the record reflects that the Veteran complained of a history of right shoulder pain, and limitation of motion with pain was shown, however, there was no additional limitation after repetitive range of motion.  Even after taking into consideration his complaints that shoulder pain increased with activity, the Board finds that the effects of pain reasonably shown to be due to his service-connected right shoulder disability are contemplated in the current 10 percent rating assigned prior to September 29, 2016.  There is no indication that his right shoulder pain caused functional loss greater than that contemplated by the 10 percent rating currently assigned.  Id.

2. Rating in Excess of 20 Percent, From September 29, 2016,

The Veteran contends that a rating in excess of 20 percent for residuals of right clavicle fracture, from September 29, 2016, is warranted.  After reviewing the record, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent under any of the applicable diagnostic codes.  

Review of the competent evidence of record for the pertinent period includes a VA examination dated in September 2016 at which the Veteran complained of constant pain, aggravated by overuse and overhead use.  He denied any specific flare-ups.  Examination revealed no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  Range of motion testing, revealed 0 to 90 degrees on flexion, 0 to 90 degrees on abduction, and 0 to 90 degrees internal and external rotation.  Muscle strength was normal.  The examiner opined that the Veteran's right clavicle disability impacted his ability to perform any type of occupational task because it impaired lifting with overhead use of the arm.

On a VA examination in August 2017, the Veteran complained of soreness with range of motion, difficulty lifting things, and decreased range of motion due to pain.  He denied flare-ups.  He reported functional impairment in that he had decreased range of motion, decreased weight lifting, and avoiding overuse to prevent pain.  Examination revealed localized tenderness or pain on palpation of the anterior and posterior shoulder.  Upon range of motion testing, he displayed 0 to 90 degrees flexion, 0 to 90 degrees abduction, 0 to 70 degrees external rotation and 0 to 90 degrees internal rotation.  The examiner noted that the range of motion contributed to functional loss in that the Veteran was limited in above the head pushing and pulling movements.  Pain was noted with flexion, abduction, and external rotation.  There was no evidence of pain with weight bearing.  He was able to perform repetitive use testing without any additional functional loss or range of motion.  It was noted that the Veteran's right shoulder was being examined immediately after repetitive use over time, but the examiner indicated that an opinion regarding functional limitations during flare-ups of this condition was not feasible since this relied on subjective data, and would therefore require resorting to mere speculation in rendering such opinion.  Muscle strength of the right shoulder was noted to be slightly diminished, but there was no atrophy.  The examiner opined that the Veteran's right clavicle disability impacted his ability to perform any type of occupational task because he was limited in weight lifting and above the head pushing and pulling movements.  The examiner also noted that there was no pain on passive range of motion testing, and no evidence of pain when the joint was used in non-weight bearing.  It was noted that the opposing (left) shoulder joint was not undamaged, as degenerative joint disease was shown on an x-ray.

Accordingly, review of the record dated from September 29, 2016, showed no competent evidence of ankylosis of the right shoulder (DC 5200), or recurrent dislocation or malunion of the humerus (DC 5202).  With regard to DC 5201, as noted above, to warrant a rating in excess of 20 percent for the right (major) shoulder, there must be limitation of motion of the arm to midway between the side and shoulder level.  38 C.F.R. § 4.71a.  The VA examinations in 2016 and 2017, however, did not show such limitation of the right shoulder, even considering pain and other functional limitations.  In that regard, the Board has also considered the provisions of 38 C.F.R. §§ 4.40  4.45, 4.59, and the holdings in DeLuca.  However, a rating in excess of 20 percent for the Veteran's service-connected right shoulder disability, effective from September 29, 2016, is not warranted on the basis of functional loss due to pain in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher.  Even after taking into consideration the Veteran's complaints of pain and reports of flare-ups, the Board finds that, effective from September 29, 2016, the effects of pain and limitation of motion reasonably shown to be due to the service-connected right shoulder disability are contemplated in the current 20 percent rating assigned. 

In summary, the preponderance of the evidence reflects that no greater than a 10 percent rating is warranted for the Veteran's service-connected postoperative residuals of a right clavicle fracture, prior to September 29, 2016, and no greater than 20 percent rating effective from September 29, 2016.  Consequently, the benefit-of-the-doubt rule does not apply, and the claims for higher ratings for the Veteran's postoperative residuals of a right clavicle fracture must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A rating in excess of 10 percent prior to September 29, 2016, for postoperative residuals of a right clavicle fracture, is denied.

A rating in excess of 20 percent effective from September 29, 2016, for postoperative residuals of a right clavicle fracture, is denied.


REMAND

Although further delay is regrettable, the Board finds that a remand is necessary to address the Veteran's service connection claims.  The Veteran contends he has right/left foot and right/left leg conditions due to 100+ jumps as a paratrooper in service.  He alternatively contends his right/left foot and right/left leg conditions are related to or aggravated by service-connected disability.  

The Board notes that the issue of entitlement to service connection for a back disability was raised by the March 2012 VA examiner's statements that the Veteran's reported symptoms of tingling and burning in both legs below the knees and in both feet may be the result of spinal compression from multiple in service parachute jump injuries.  Because a rating decision dated in May 2017 denied service connection for degenerative disc disease with spondylosis, lumbar spine, at this point secondary service connection for that disability need not be considered.  
Service treatment records (STRs) show that in April 1988, the Veteran sustained a right leg injury during a jump.  X-rays were negative and the diagnosis was contusion of the right calf. 

At a hearing in July 2011, the Veteran testified he injured his right leg during a jump in service in April 1988, and as a result his whole leg turned black all the way to his toes, and that he currently feels "bugs crawling" in his skin.  He testified he had no diagnosed left leg, or right or left foot, disability, but had the same feeling of "bugs crawling like pins and needles" as he did in the right leg. 

On a VA examination in March 2012, the diagnoses included unspecified idiopathic peripheral neuropathy of the feet.  The Veteran reported he had over 100 jumps in service as a paratrooper, and that he injured his right knee and leg in a jump, but never injured his feet in service.  He reported a pins and needles sensation on the plantar surfaces of his feet, and felt he had bugs crawling on his legs beneath the knee.  In response to the question of whether the Veteran's bilateral knee and leg disabilities were related to service, the examiner opined that his right knee medial meniscus tear was related to a parachute jump in service.  The examiner also noted that there were no findings of any treatment for foot injuries in service, and opined that this may be a function of his being a paratrooper, with changes occurring later in life.  For rationale, the examiner indicated that even though the Veteran appeared normal and was having no problems, the findings in his spine films may indicate some pathology for his bilateral neuropathy which is transient in nature.  

On a VA examination in June 2017, the diagnoses included peripheral neuropathy of the bilateral lower extremities.  The examiner concluded that the Veteran did not have diabetes mellitus, and indicated that although he could not complete the EMG/NCS study, his physical examination was not compatible with a lumbar radiculopathy, but rather a peripheral neuropathy.  The examiner noted that peripheral neuropathies are diseases of the peripheral nervous system and not due to a spinal condition, and are usually due to diabetes, or systemic disease such as hypothyroidism, vitamin deficiencies, HIV, amyloidosis, Lyme disease, critical illnesses, or autoimmune disorders; or toxic neuropathies such as due to alcohol, chemotherapy, or heavy metal exposures; or they can also be idiopathic, or due to cold exposure (cold injury).  The examiner opined that there was no causal relationship between the Veteran's multiple parachute jumps and the pathologies that caused his peripheral neuropathy.  The examiner opined that since the Veteran did not have lumbar radiculopathy, it was less likely his peripheral neuropathy was caused by service/multiple parachute jumps, and was most likely related to alcohol use in the past.  The examiner opined that peripheral neuropathy of the bilateral lower extremities was less likely due to a service-connected condition, citing for rationale the possible etiologies of peripheral neuropathy noted above, and also was not aggravated by a service connected condition, citing for rationale that all the evidence was reviewed and there was no causal relation between the service-connected conditions and peripheral neuropathy of the lower extremities.

VA treatment records dated in July 2017 show that the Veteran was seen for pain in his back and right leg with numbness in all toes, and the impression was back pain, discogenic, and radiculopathy.  This conflicts with the June 2017 VA examination, which noted the Veteran did not have a lumbar radiculopathy, and used that finding as rationale for one of the opinions provided.  In light of this conflict in the evidence, a remand is necessary to clarify this matter.  Also, the Board notes that the VA examiner did not provide sufficient rationale for the opinion that the Veteran's peripheral neuropathy of the lower extremities was not aggravated by service-connected conditions, thus that portion of the VA examination is inadequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998).  Accordingly, in light of the foregoing, a VA addendum opinion is necessary.

Accordingly, the case is REMANDED for the following actions:

1. Forward the Veteran's claims file (to include this remand) to the June 2017 VA examiner for review and to provide an addendum medical opinion.  Specifically, the examiner is asked to address the contradiction in the finding made in June 2017 that the Veteran did not have radiculopathy with the July 2017 VA treatment record which noted that he did have radiculopathy.  The examiner should also indicate whether the Veteran having radiculopathy impacts the opinions or rationale provided.  The examiner is also asked to provide adequate rationale for the opinion that the peripheral neuropathy of the lower extremities was not aggravated by any service-connected conditions (right shoulder, right knee, hearing loss, tinnitus, and surgical scar of the shoulder).

If the June 2017 VA examiner is no longer available, or is unable to offer the opinions sought, such should be noted for the record and the Veteran's claims file forwarded to another appropriate examiner for review and a medical nexus opinion.  If it is determined that a physical examination is necessary to provide the requested opinion, then such should be scheduled.  

The opinion provider should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given.  If the examiner determines that the opinions sought may not be given without resorting to speculation, ensure that such is stated for the record and that the examiner explains why the opinion sought cannot be offered without resort to speculation.

2. After completing the above action, and any other development as may be indicated, readjudicate the claims.  If any benefit remains denied, provide a supplemental statement of the case (SSOC) to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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).




______________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs