Citation Nr: 1804046 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-12 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include as secondary to the service-connected cervical spine disability. 2. Entitlement to service connection for a right shoulder disability, to include as secondary to the service-connected cervical spine disability. 3. Entitlement to a rating in excess of 10 percent for a cervical spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1981 to October 1981, March 1982 to March 1986, and from January 2011 to February 2012 and also had additional service in the Reserves. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Buffalo, New York, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for a cervical spine disability, rated 10 percent, effective February 18, 2012, and denied service connection for the shoulder disabilities. The issue of service connection for a right shoulder disability is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The Veteran is not shown to have (or at any time during the pendency of the instant claim to have had) a left shoulder disability. 2. At no time under consideration is the Veteran's cervical spine disability shown to have been manifested by forward flexion limited to 30 degrees or less, combined range of motion of the cervical spine limited to 170 degrees or less, or muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour; separately ratable neurological manifestations are not shown. CONCLUSIONS OF LAW 1. Service connection for a left shoulder disability, to include as secondary to a service-connected cervical spine disability, is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. A rating in excess of 10 percent for a cervical spine disability is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Regarding the claim seeking service connection for a left shoulder disability, VA's duty to notify was satisfied by correspondence in April 2013. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. As the appeal seeking a higher rating for a cervical spine disability is from the rating decision that granted service connection and assigned an initial rating and effective date for the award, statutory notice had served its purpose and is no longer necessary. A statement of the case (SOC) properly provided notice on the downstream issue of entitlement to an increased initial rating. The Veteran has not raised any issues with VA's duties to notify and assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria, Factual Background, and Analysis The Board has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service Connection for a Left Shoulder Disability Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran has provided alternate theories of entitlement to service connection for a left shoulder disability, direct and secondary. Regarding the direct service connection theory of entitlement he claims he injured his left shoulder in 2011 while serving in Afghanistan. He denied any specific acute trauma, but reported that he "jarred" and bumped his shoulders driving on uneven terrain while wearing body armor. See August 31, 2012 VA clinical record; see also May 2013 VA neck examination report. The Veteran's secondary service connection theory of entitlement is premised on an allegation that his claimed left shoulder disability was either caused or aggravated by his service-connected neck disability. See October 2013 Statement. The Veteran's service treatment records (STRs) are silent regarding injury, treatment, or diagnoses pertaining to his left shoulder. He was deployed to Afghanistan from March 2011 to December 2011. Post-deployment assessments note complaints of bilateral shoulder pain and bilateral upper extremity paresthesias/numbness/tingling. See January 5, 2012 and June 5, 2012 post-deployment health assessment reports. A left shoulder condition was not diagnosed on May 8, 2013 VA shoulder examination. X-rays did not show arthritis. The examiner wrote, "There is no established diagnosis of a bilateral shoulder condition." A May 29, 2013 Reserve treatment record notes complaints of shoulder pain (left worse than right) that began mid-way through his deployment to Afghanistan. The assessment was bilateral shoulder pain. Private clinical records from 2012 and 2013 note diagnoses of right shoulder mild degenerative changes, subacromial bursitis, and suspected torn rotator cuff. See August 5, August 9, and September 13, 2013, private clinical records. A left shoulder disability is not diagnosed. The threshold matter that must be addressed here (as in any claim seeking service connection, direct or secondary) is whether or not there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disability for which service connection is sought. The record does not show that the Veteran has (or during the pendency of the instant claim has had) a left shoulder disability. A left shoulder disability was not diagnosed on May 2013 VA examination. Furthermore, private treatment records do not show that the Veteran was ever found to have a left shoulder disability. Although the Veteran is competent to report lay-observable symptoms such as pain, pain alone, without a diagnosed or identifiable underlying malady or condition, is not in and of itself a compensable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Whether or not there is underlying pathology for the pain symptoms constituting a compensable disability is a medical question beyond the capability of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board finds that the unsupported by clinical data assertion by the Veteran that he has a left shoulder disability is not probative evidence. He has not submitted any competent evidence showing he has a left shoulder disability, and does not cite to any factual data supporting that he has a left shoulder disability. In the absence of proof of a current left shoulder disability there is no valid claim of service connection for such disability, on either a direct or a secondary service connection theory of entitlement. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999). Accordingly, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. at 55. Increased Rating for a Cervical Spine Disability Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, the appeal is from the initial rating assigned with an award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of "staged" ratings for distinct periods of time when varying degrees of disability were shown, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's cervical spine myositis is rated under Code 5242 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A rating in excess of 40 percent requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Code 5243, Note (1). Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, the following ratings apply: A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks per year. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. An "incapacitating episode" is defined as "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, Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The Veteran's award of service connection for his cervical spine disability is effective from the day following the date of his separation from service in February 2012. January and June 2012 post-deployment health assessment reports note reports of neck and upper back pain, as well as bilateral upper extremity paresthesias/numbness/tingling. A February 2012 private clinical record notes complaints of neck pain going across the left shoulder with occasional numbness in both arms; the Veteran denied weakness in both arms. Examination showed no swelling in the neck. Motor testing of both hands and shoulders was normal. Reflex testing of both arms was also normal. The assessment was cervicalgia. An August 31, 2012 VA treatment record notes complaints of neck pain and radiculitis since the Veteran's tour overseas. He reported that the pain is not daily, but rather, comes and goes, and can present while sitting, lying, or being active. On examination, the Veteran's gait was normal. His cervical spine showed normal alignment and full range of motion; cranial nerves II-XII were intact; muscle strength was full (5/5) throughout. The assessment was neck pain; an x-ray was ordered; the Veteran declined physical therapy. On May 2013 VA neck examination, the Veteran reported that he injured his neck while serving in Afghanistan. He denied any neck problems prior to that time and denied any chiropractic care or physical therapy for his complaints. He reported intermittent numbness and tingling in both shoulders that occasionally occurred in the forearms and hands (without specific pattern). He reported intermittent daily flare-ups. Objective range of motion testing showed cervical flexion to 40 degrees (with objective evidence of painful motion at 30 degrees), extension to 40 degrees (with objective evidence of painful motion at 40 degrees) right lateral flexion to 40 degrees (with objective evidence of painful motion at 40 degrees), left lateral flexion to 40 degrees (with objective evidence of painful motion at 40 degrees), right lateral rotation to 70 degrees (without objective evidence of painful motion), and left lateral rotation to 75 degrees (without objective evidence of painful motion; the combined range of motion was 305 degrees. Repetitive use testing did not result in any objective decrease in range of motion, although the Veteran reported functional loss/ limitation due to pain on movement and less movement than normal. Notably, sitting, standing, and weight-bearing did not result in additional functional loss, impairment, or limitation of range of motion. There was no evidence of tenderness or pain to palpation, guarding or muscle spasm, or muscle atrophy. The Veteran reported mild paresthesias and numbness of the bilateral extremities. Review of August 2012 x-rays showed diffuse cervical disc degeneration, greatest in areas C5-6 and C6-7, with some foraminal encroachment. Upper extremity testing showed normal motor function and strength, normal sensory function, and normal reflexes; the Veteran did not have any other signs or symptoms of radiculopathy. The examiner wrote, "...there has been no established radicular diagnosis rendered. motor (sic), sensory and reflexes were normal today." Other neurologic abnormalities related to the cervical spine disability (such as bowel or bladder problems) were not found or reported. IVDS was diagnosed; the Veteran denied having any incapacitating episodes over the past 12 months. He denied that his neck disability interferes with his work; he related that he worked at a physical job that required lifting heavy objects weighing up to 40 or 50 pounds. The examiner opined that the Veteran's neck disability does not impact on his ability to work. An August 2013 private clinical record notes that upon examination cervical spine range of motion was normal and tenderness to palpation was not shown. The Veteran's cervical spine disability has been rated 10 percent under Code 5242. To warrant the next higher (20 percent) schedular rating under the General Formula, the evidence must show that forward flexion of the cervical spine is limited to less than 30 degrees, combined range of motion of the cervical spine is limited to less than 170 degrees, or that there is muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The record does not show any period of time under consideration when symptoms were of (or approximated) a severity warranting a rating in excess of 10 percent. The greatest degree of limitation of cervical forward flexion, noted on May 2013 VA examination, was to 40 degrees (even with consideration of pain and repetitive motion); the combined range of motion on that examination was 305 degrees. Subsequent private treatment records note full range of cervical spine motion. See August 2013 private clinical record. Abnormal gait or contour of the spine is not shown. Accordingly, a higher rating under the General Formula is not warranted. The Board notes the Veteran's subjective reports of periodic bilateral upper extremity paresthesias/numbness/tingling. However, there is no competent evidence that the cervical spine disability has neurological manifestations (including radiculopathy or bladder/bowel problems). The May 2013 VA examiner did not find objective evidence of radiculopathy, and specifically reported that motor strength, sensory, and reflex testing were normal. Likewise, private clinical records note normal motor and reflex testing; none show a diagnosis of upper extremity radiculopathy/neuropathy (or any other neurological manifestation). Accordingly, a separate compensable rating for neurological manifestations is not warranted. A review of the evidence did not find that bed rest was ever prescribed by a physician (nor is it so alleged). Accordingly, a rating based on incapacitating episodes is not warranted. The preponderance of the evidence is against the claim for a rating in excess of 10 percent for the Veteran's cervical spine disability. Accordingly, the appeal in the matter must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a left shoulder disability, to include as secondary to a service-connected cervical spine disability, is denied. A rating in excess of 10 percent for a cervical spine disability is denied. REMAND Regarding the remaining claim seeking service connection for a right shoulder disability, a review of the record found that further development is needed for VA to fulfill its duty to assist mandated under the VCAA. On May 2013 VA shoulder examination, x-rays were negative; a right shoulder disability entity was not found. In December 2013, VA received private treatment records (dated after the May 2013 VA examination) which note mild degenerative changes of the right shoulder, subacromial bursitis, and suspected torn rotator cuff. See August 5, August 9, and September 13, 2013 private clinical records. As the May 2013 examination report did not encompass consideration of these findings, and apparently does not reflect the current status of the right shoulder, it is inadequate for rating purposes. Consequently, another orthopedic examination to ascertain the nature and etiology of the Veteran's right shoulder disability(ies) is necessary. Furthermore, in October 2013, five months after the May 2013 examination, the Veteran proffered an alternative theory of entitlement to service connection, namely that a right shoulder disability is secondary to his service-connected cervical spine disability. Such theory had not been raised at the time of the May 2013 examination, and was not then addressed. Whether or not a service-connected disability (such as cervical spine disc degeneration) caused or aggravated(s) another disability (such as right shoulder arthritis, bursitis, or rotator cuff injury) is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the case must be remanded for additional development anyway, the Veteran will have the opportunity to submit (or identify for VA to obtain) any outstanding (i.e., those not already in the record) private treatment records pertaining to his claimed right shoulder disability. He has reported only one visit to a VA care facility. See April 2013 statement. Records of any VA treatment for his right shoulder since may contain pertinent evidence, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record all updated records of VA evaluations and/or treatment (i.e., those not already in the record) the Veteran has received for his right shoulder. 2. The AOJ should also ask the Veteran to identify all private providers of evaluations or treatment he has received for his right shoulder (records of which are not already in the record) and to provide the authorizations necessary for VA to secure for the record complete clinical records of all such evaluations and treatment. The AOJ should secure for the record complete clinical records (those not already associated with the record) from all providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 3. After the development requested above is completed, the AOJ should arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his right shoulder disability(ies). The Veteran's entire record (to include this remand, May 2013 VA neck and shoulder examination reports, private August and September 2013 clinical records, and any newly obtained records) must be reviewed by the examiner in conjunction with the examination. Based on examination/interview of the Veteran and review of his record, the examiner should provide opinions that respond to the following: (a) Please identify (by diagnosis) each right shoulder disability entity found, or shown, during the pendency of this claim. (b) Please identify the likely etiology for each right shoulder disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred or aggravated during the Veteran's active service? (c) For any disability entity for which the answer to (b) is no, is it at least as likely as not (a 50% or better probability) that the disability was caused or aggravated by the Veteran's cervical spine disability? [The opinion must encompass aggravation.] (d) If the opinion is to the effect that the Veteran's service-connected cervical spine disability did not cause, but aggravated, a right shoulder disability, the examiner should specify, to the extent possible, the degree of disability (symptoms and impairment) that has resulted from such aggravation. (d) If the opinion is to the effect that a right shoulder disability was not caused or aggravated by a service-connected disability, please identify the etiology considered more likely. The examiner must include rationale with all opinions. 4. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs