Citation Nr: 18140131 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 11-16 561 DATE: October 2, 2018 ORDER Service connection for recurring myositis of the abdominus rectus muscles is denied. Service connection for right lower extremity radiculopathy is denied. Service connection for left lower extremity radiculopathy is denied. A rating in excess of 20 percent for left shoulder impingement and supraspinatus myotendinopathy is denied. A rating in excess of 10 percent for right knee tibial plateau contusion is denied. A rating in excess of 10 percent for degenerative disc disease of the back is denied. REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). Entitlement to an initial rating in excess of 10 percent for left knee instability. Entitlement to a total disability rating due to individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran served on active duty from January 1986 to February 2009. 2. A disability manifested by recurring myositis of the abdominus rectus muscles is not shown. 3. Right and left lower extremity radiculopathy was not caused by or permanently worsened in severity by a service-connected disability. 4. A left shoulder disability has been manifested, at worse, by subjective evidence of range of motion of 0 to 170 degrees flexion, 0 to 150 degrees abduction, 0 to 80 degrees external rotation and 0 to 90 degrees internal rotation without pain on weight-bearing or flare-ups, but causing the veteran to be unable to fully reach overhead due to shoulder pain with repetitive and/or prolonged activities above shoulder level. 5. The right knee disability has been manifested by subjective complaints of increased pain in the right knee with prolonged walking, standing, sitting, and when going up and down stairs, of mild anterior knee swelling with overuse, and of buckling when under a load; objective findings include normal range of motion without additional loss of use on repetition or with flare-ups and with no instability, subluxation, pain on weight-bearing, tenderness, locking, effusion, or ankylosis. 6. A low back disability has been manifested by subjective complaints of muscle spasms at least twice weekly with constant dull aching with occasional sharp shooting discomfort in the low back, worse with standing or sitting longer than five to ten minutes and avoidance of vigorous bending, leaning, and turning; objective findings include normal range of motion with pain on weight-bearing, but without additional loss of use on repetition or with flare-ups and with no ankylosis, or abnormal gait or spinal contour. CONCLUSIONS OF LAW 1. A disability manifested by recurring myositis of the abdominus rectus muscles was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§3.303, 3.309 (2018). 2. Right lower extremity radiculopathy was not incurred in service or as a result of service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2018). 3. Left lower extremity radiculopathy was not incurred in service or as a result of service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2018). 4. The criteria for a rating in excess of 20 percent for left shoulder impingement and supraspinatus myotendinopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes (DCs) 5200-5203 (2018). 5. The criteria for a rating in excess of 10 percent for right knee tibial plateau contusion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.71a, DCs 5256-5261 (2018). 6. The criteria for a rating in excess of 10 percent for degenerative disc disease of the back have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.71a, DCs 5235-5243 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Recurring Myositis of the Abdominus Rectus Muscles In February 1988, the Veteran was treated for abdominal wall tendonitis. A pre-discharge examination stated that his symptoms began in 1988. There was no defining injury and when symptoms developed; the diagnosis was tendonitis, which he indicated had persisted to that day, always manifesting when he did sit-ups. The diagnosis was recurring myositis of the abdominus rectus muscles. There was no objective evidence of functional limitation. In March 2017, a VA examiner found that the tendinitis in service had resolved without residuals or deficits. The examiner also stated that the mild rectus abdomen prominence was now asymptomatic and described it as a non-pathologic, muscle variant finding. The examiner documented the Veteran’s in-service medical history, but did not note any current symptomatology. In a January 2018 statement, the Veteran discussed in detail his attempts to treat his abdominal tendinitis in service and the difficulties it caused in completing physical fitness tests because he could not do sit-ups. However, he has not provided evidence of a current disability. VA treatment notes also consistently show that the Veteran’s abdomen is “soft and not tender, no rebound or guarding,” and no complaint, treatment, or diagnosis regarding the abdominal muscles is reported. Thus, to the extent he contends that he still experiences pain in his abdominal muscles, he has not described functional impairment from the pain suggestive of a disability. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018) (holding that for pain alone to be considered a disability, the veteran must show that the pain reaches the level of functional impairment of earning capacity.) In light of the above, the evidence does not show a current disability for VA compensation purposes and the appeal is denied. Left and Right Lower Extremity Radiculopathy Service treatment records are negative for complaint, treatment, or diagnosis of neurological disorder of the right and left lower extremities. Pre-discharge examination of the thoracolumbar spine revealed normal gait and normal straight leg raise bilaterally. Muscle strength was 5/5, and deep tendon reflexes were equal. Motor and sensory testing were normal. Moreover, at both the March 2015 and March 2017 VA examinations, the examiners documented the Veteran’s complaints of pain, numbness, and tingling in the lower extremities, but found that there was no radiculopathy. A September 2014 MRI showed no degenerative disc disease of lumbar spine with disc bulge at L5-S1 with no canal stenosis or impingement noted. In December 2014, the Veteran’s spine surgeon noted complaints of bilateral leg pain, worse on the right side, and radiating around the abdomen. The physician stated that the Veteran had no true radicular pattern to his pain. Straight leg raises were negative and there was no strength or sensory deficit. Reflex testing was normal. There was no significant stenosis. Based on the above, the evidence does not support a finding that the Veteran current had diagnoses related to left and right radiculopathy. The Board has considered the Veteran’s lay statements that he has radiculopathy of the right and left lower extremities associated with his service-connected lumbar spine. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the existence and etiology of the radiculopathy due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. The evidence shows that the right and left lower extremity symptomatology is not a manifestation of radiculopathy secondary to his service-connected lumbar spine disability. Moreover, the evidence does not establish the onset of the symptoms in service or within one year of discharge from service to warrant service connection of a direct or presumptive basis. The appeals are, therefore, denied. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Left Shoulder The Veteran’s left shoulder impingement and supraspinatus myotendinopathy is rated as 20 percent disabling pursuant to DC 5201 for limitation of motion of the arm. Ratings for the upper extremities are generally dependent on whether the extremity is the major (dominant) extremity or the minor (non-dominant) extremity. See 38 C.F.R. § 4.69 (2017). Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. VA examination results reflect that the Veteran is right-handed, thus the rating percentages for the minor arm apply in this case. The standard ranges of motion of the shoulder are 180 degrees for forward elevation (flexion) and 180 degrees for abduction. The standard range of motion for internal and external rotation is 90 degrees. 38 C.F.R. § 4.71, Plate I. For the minor arm, disability of the shoulder may be rated under several diagnostic codes. A rating in excess of 20 percent requires: • intermediate ankylosis between favorable and unfavorable (30 percent under DC 5200); • limitation of motion to no more than 25 degrees from the side (30 percent under DC 5201); or • fibrous union of the humerus (40 percent under DC 5202). A March 2015 VA examiner recorded range of motion from 0 to 170 degrees flexion, 0 to 160 degrees abduction, 0 to 80 degrees external rotation and 0 to 90 degrees internal rotation. There was no evidence of pain on weight-bearing. No flare-ups were noted. The examiner noted no ankylosis, instability, dislocation, or impairment or pathology of the humerus, rotator cuff, clavicle, scapula, or acromioclavicular joint. At a March 2017 VA examination, range of motion from 0 to 170 degrees flexion, 0 to 150 degrees abduction, 0 to 90 degrees external rotation and 0 to 90 degrees internal rotation. The examiner stated that the veteran cannot fully reach overhead and has shoulder pain with repetitive and/or prolonged activities above shoulder level. There was no evidence of pain on weight-bearing. No flare-ups were noted. The examiner stated that active and passive range of motion were the same. A review of VA treatment notes does not reveal any ongoing treatment for the left shoulder or any manifestations of the left shoulder disability more severe than those discussed above. The current 20 percent rating assigned contemplates the range of motion with pain beginning at 90 degrees. A higher rating requires ankylosis, limitation of motion to no more than 25 degrees from the side, or fibrous union of the humerus, none of which is present at any time during the appeal period. Thus, based on the above evidence, the medical evidence does not support a rating in excess of 20 percent. Right Knee The Veteran’s right knee disability is currently rated as 10 percent disabling under DC 5260 for limitation of flexion of the leg and 38 C.F.R. § 4.59 regarding painful motion. The Board will consider all potentially relevant diagnostic codes. To warrant a higher rating, the evidence must show: • ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); • moderate recurrent subluxation or lateral instability (20 percent under DC 5257); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20 percent under DC 5258); • flexion of the knee limited to 30 degrees (20 percent under DC 5260); • extension of the knee limited to 15 degrees (20 percent under DC 5261); • impairment of the tibia or fibula with a moderate knee disability (20 percent under DC 5262). A March 2015 VA examiner documented subjective complaints of increased pain in the right knee with prolonged walking, standing, or sitting and mild anterior knee swelling with overuse. Range of motion testing was all normal from 0 degrees extension to 140 degrees flexion. No increased loss of function with repetition was reported by the Veteran or documented clinically. There was no pain on weight-bearing, crepitus, or objective evidence of localized tenderness or pain on palpation. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. Muscle strength was normal, and joint stability testing reveled no instability or subluxation of the right knee. There was no ankylosis. Imaging studies did not show degenerative or traumatic arthritis. At the March 2017 VA examination, the Veteran reported that he has shooting pain to the anterior and posterior when going up and down stairs and that the knees tend to buckle when under a load. He indicates that he limits stairs, kneeling, and squatting, but that doing so is difficult with his occupation working on barges. Both knees had normal range of motion with objective evidence of pain on weight-bearing and crepitus. The examiner found both knees mildly tender to palpation on the anterior. There was no additional functional loss on repetition of movement, and the examiner indicated that he could not comment on whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time without resorting to speculation because the knees were not examined under these conditions. The examiner also indicated that the examination was medically inconsistent with the Veteran’s statements describing functional loss over time. There was no ankylosis, instability, or subluxation. A review of treatment notes does not reflect a disability of the right knee more severe than documented at the examination. The 10 percent rating contemplates the subjective complaints of pain in the right knee, but as there is no objective evidence of limited range of motion, ankylosis, instability, subluxation, locking, or effusion into the joint, a rating in excess of 10 percent is not supported by the medical evidence. Back Disability Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). DCs 5237-5243. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran’s back disability is rated as 10 percent disabling under DC 5242 and the Board will consider all relevant diagnostic codes. A rating in excess of 10 percent will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20 percent under DC 5242); • combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent under DC 5242); • muscle spasms or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent under DC 5242); • incapacitating episodes of IVDS having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent under DC 5243); • in the absence of limitation of motion, degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (20 percent under DC 5242). Turning to the evidence, at a March 2015 VA examination, the Veteran reported frequent episodes of muscle spasms mainly in the lower back, at least twice weekly. When the spasms occurred at home, he would lie down, but at work, he pushed through and did his job. He denied any functional loss or impairment with repetitive use. Range of motion testing was normal for all movements, including forward flexion from 0 to 90 degrees. There was no objective evidence of localized tenderness or pain on palpation of the thoracolumbar spine. Objective testing found not additional loss of function or range of motion on repetition. No ankylosis or intervertebral disc syndrome were found. There were no flare-ups documented, and the examiner indicated that that he could not comment on whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time without resorting to speculation. The examiner explained that muscle spasms could limit range of motion and function if significant, mainly due to the pain, but the Veteran’s degenerative disc disease in his lumbar spine should not limit any function and, if the surgery on his T11-T12 was successful, then there should not be any limitations from that area as well. Muscle strength testing, sensory examination, and straight leg raise were all negative. Reflexes were normal. At the March 2017 VA examination, the Veteran reported constant dull aching in the low back with occasional sharp shooting discomfort and some associated back muscle spasm. He indicated that the discomfort was worse with standing or sitting longer than five to ten minutes and that he tried to limit vigorous bending, leaning, and turning to pain tolerance. Range of motion testing was normal for all movements, including forward flexion from 0 to 90 degrees, and the examiner indicated that there was pain with each movement, but that it did not cause any functional loss. There was pain with weight-bearing. The examiner observed no objective evidence of localized tenderness or pain on palpation of the thoracolumbar spine and found no additional loss of function or range of motion on repetition. Neither ankylosis nor intervertebral disc syndrome were present. The examiner indicated that passive and active range of motion were performed without additional loss of function due to pain. There were no flare-ups documented, and the examiner indicated that that he could not comment on whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time without resorting to speculation because the Veteran was no examined under these conditions. The examiner stated that the Veteran’s muscle spasm does not result in abnormal gait or spinal contour. A clinical examination revealed some tense muscle tone at the mid-to-lower thoracic para-spinal and accessory muscle groups but no frank muscle spasm and which he attributed to optimal physical conditioning and muscular development. Gait was slow and stiff but steady with good mechanics. Muscle strength testing, sensory examination, reflexes, and straight leg raise were all normal. There was no radiculopathy found. A review of treatment notes does not reflect a disability of the back more severe than documented at the examination. Notably, the Veteran was seen in November 2016 with complaints of back pain, but the clinical examination did not address the rating criteria. Exercise was recommended. Based on the above, the medical evidence does not support a higher rating for a low back disability. With respect to all the increased rating claims, the Board has considered the Veteran’s lay statements that his disabilities are worse. With the shoulder and knee, he has offered little in the way of additional disability. With respect to the low back, he asserts that he has constant pain and that the impact of this pain, such as being unable to sit or stand for more than five minutes, warrants a rating greater than the 10 percent assigned. He also describes muscle spasms. He further asserts that the findings that he has full range of motion without loss of function due to pain are “ludicrous,” yet these findings were documented at two different VA examinations with two different examiners. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), the Veteran is not competent to identify a specific level of disability of shoulder, knee, or back according to the appropriate diagnostic codes. Specifically, with regards to the back, as the range of motion is normal, the 10 percent assigned is in contemplation of the degenerative disc disease of the lumbar spine which causes pain without functional loss. Thus, his subjective complaints are contemplated in the 10 percent rating assigned. The competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). REASONS FOR REMAND The issue of entitlement to a rating in excess of 30 percent for PTSD must be remanded for consideration of additional evidence. Subsequent to the November 2017 supplemental statement of the case (SSOC), the Veteran submitted several lay statements describing his PTSD symptoms. He has not waived agency of original jurisdiction review of this evidence (AOJ), and in fact, in April 2018, requested that the issue be remanded so that these statements could be considered. In addition, the Veteran has historically been assigned two ratings for his service-connected left knee disability. Left knee cruciate ligament injury is currently rated as 10 percent disabling under DC 5260 for limitation of flexion of the leg and 38 C.F.R. § 4.59 regarding painful motion. Left knee instability was separately rated as 10 percent disabling under DC 5257 for slight recurrent subluxation or lateral instability from March 3, 2011 through March 5, 2011. The Veteran appealed the assigned rating, and during the appeal period, the rating was reduced to 0 percent, effective March 6, 2017 in a November 2017 rating decision. In a December 2017 submission, he disagreed with the reduction. This appeal has not been addressed by the RO, and so must be remanded for a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). As TDIU is in part dependent on the ratings assigned to service-connected disabilities, that claim is inextricably intertwined with the claims above. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Therefore, that claim must also be remanded. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. 2. Provide the Veteran with an SOC that addresses the issue of entitlement to restoration of the 10 percent rating for left knee instability. Inform him that if the claim is denied, a substantive appeal must be filed for the Board to review the appeal of the issue. 3. Adjudicate the issues remaining on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, a supplemental SOC should be issued to him and his attorney, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel