Citation Nr: 18143167 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-34 915 DATE: October 18, 2018 ORDER Entitlement to rating higher than 20 percent for left shoulder strain is dismissed. Entitlement to rating higher than 10 percent prior to April 1, 2015, and 30 percent (excluding a period of temporary total rating) thereafter for the residuals of left knee arthroplasty to include degenerative joint disease is dismissed. The petition to reopen a claim for service connection for hypertension is granted. Service connection for hypertension is granted. Entitlement to service connection for a right shoulder disability is denied. Entitlement to rating higher than 10 percent for degenerative disc disease (DDD) of the lumbar spine is denied. REMANDED Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. On May 3, 2018, prior to the promulgation of a decision in the appeal, the Board received a request from the Veteran, through his authorized representative, to withdraw the appeals for higher ratings for left shoulder strain and the residuals of left knee arthroplasty. 2. The RO initially denied the claim for service connection for hypertension in November 1998. 3. Since the November 1998 RO decision, evidence has been received that raises a reasonable possibility of substantiating the Veteran’s claim. 4. Hypertension cannot be disassociated from military service. 5. A right shoulder disability was not caused or aggravated by his military service and is not otherwise related to service. 6. The Veteran’s lumbar spine disability has been primarily manifested by pain on use with lumbar spine flexion from 40-90 degrees without evidence of muscle spasm, guarding, abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for higher rating for left shoulder strain by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal for higher rating for the residuals of left knee arthroplasty by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The November 1998 rating decision, which denied the claim for service connection for hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. New and material evidence sufficient to reopen the previously denied claim of service connection for hypertension has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. By resolving all reasonable doubt in his favor, the Veteran’s hypertension was incurred in service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 7. The schedular criteria for an evaluation in excess of 10 percent for the lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to August 1994. This appeal is before the Board of Veterans’ Appeals (Board) on appeal from August 2013, March 2015, and July 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to higher ratings for left shoulder strain and the residuals of left knee arthroplasty The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his authorized representative, has withdrawn his appeals for higher ratings for left shoulder strain and the residuals of left knee arthroplasty. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals for higher ratings for left shoulder strain and the residuals of left knee arthroplasty and they are dismissed. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease 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 establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In order to establish entitlement to service connection on this alternative secondary basis, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Alternatively, under 38 C.F.R. § 3.303 (b), service connection may be awarded for a “chronic” condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309 (a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran’s present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309 (a)). Hypertension and arthritis are listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Significantly, in this case, no chronic disease (arthritis) was identified during service Petition to reopen claim for hypertension The Board finds that the new evidence—in particular, a positive medical opinion—is so significant that this evidence must be considered in order to fairly decide the merits of the claim for service connection for hypertension. Therefore, the Board finds that this evidence is both new and material, and serves to reopen the claim. 38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet. App. 110 (2010). As such, the Veteran’s claim of entitlement to service connection for hypertension is reopened. Service connection for hypertension Hypertension is defined as persistently high arterial blood pressure. Various criteria have been suggested, ranging from 140 millimeter of mercury (mm. Hg) systolic and 90-mm. Dorland’s Illustrated Medical Dictionary 635 (26th ed. 1981). In regard to element (1), current disability, VA examination and treatment reports include diagnoses of hypertension. Thus, the first element is satisfied. In regard to element (2), in-service incurrence; the record contains numerous reports of elevated blood pressure readings throughout service. On three occasions several elevated blood pressure readings were noted over a three-to-five-day period. (see service treatment records) dated in May 1981, August 1985, January 1990, and February 1990). Thus, the second element is also satisfied. In regard to element (3), causal relationship, the record contains opinions that are both favorable (see April 1916 private opinion) and unfavorable (see January VA opinion) to his claim. The Board cannot conclude that one opinion is any more probative than the other. Moreover, although the record does not contain an inservice diagnosis of hypertension, the Board cannot ignore the fact that elevated blood pressure readings were recorded both during service. Thus, with respect to the claim for service connection for hypertension, the Board finds that the evidence of record is in equipoise, and that service connection hypertension is warranted. Service connection for a right shoulder disability The primary basis of the Veteran’s claim is that his right shoulder arthritis is secondary to his service-connected left shoulder disability. In deciding this claim, however, the Board must consider all potential bases of entitlement-direct, presumptive, and secondary. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In regard to first element of the Shedden/Wallin analysis, current disability, a March 2013 VA CT scan report noted degenerative changes of the right shoulder. The question then becomes whether the Veteran’s right shoulder disability is a result of his military service, including especially his left shoulder disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). However, the record does not contain the nexus element of the claim, and service connection is not warranted on either a direct or secondary basis. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement must be considered-direct, presumptive and secondary The Veteran’s STRs show no complaints, treatment or diagnosis of a right shoulder disability, so these records provide evidence against in-service incurrence of this condition. See Struck v. Brown, 9 Vet. App. 145 (1996). There is no indication of arthritis within the one-year presumptive period following the conclusion of his service, meaning by August 1995 (since his service ended in August 1994). There were no complaints, treatment, or diagnoses regarding the right shoulder at a post service VA examination conducted in September 1998. Moreover, the first diagnosis of right shoulder arthritis is in 2013 - approximately 15 years after his separation from service, thus well after this one-year presumptive grace period following the conclusion of his service. 38 C.F.R. § 3.307 (a)(3), 3.309(a). The first complaints of right shoulder pain are in March 2008 when he sought VA treatment. VA outpatient records dated in March 2008 show that the Veteran reported right shoulder pain for a period of five months. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder). More importantly, the evidence of record does not include any medical statements or opinions that relate his right shoulder disability to military service to include his service-connected left shoulder arthritis. The only evidence of record that suggests the existence of and/or a causal relationship between the Veteran’s claimed disability and service is the Veteran’s statements. However, his lay assertions are of little probative value and do not serve to establish service connection. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for right shoulder arthritis.   Entitlement to a Higher Evaluation for Lumbar Spine Disability Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). If there have been changes in the severity of the disability, the Board will need to “stage” the rating to compensate the Veteran for this, irrespective of whether the rating for the disability is an established rating versus initial rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered, and examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain “on use or due to flare-ups.” DeLuca v. Brown, 8 Vet. App. 202 (1995). See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These factors do not specifically relate to muscle or nerve injuries independently of each other, but rather, refer to overall factors, which must be considered when rating the veteran’s joint injury. DeLuca, supra. Based on inservice treatment, the RO granted service connection for status post lumbar spine strain, assigning a 10 percent evaluation, in a November 1998 rating action. The regulations provide the following rating criteria: a 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A note (2) to this code indicates that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Another note (6) indicated that disability of the thoracolumbar and cervical spine segments will be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Board does not find that the Veteran’s thoracolumbar spine disability exceeds the 10 percent when rated under Diagnostic Code 5237. At VA examination in August 2013, the Veteran reported that he experienced back constant pain, which he rated as 6 on a scale of 10. He also experienced sharp pain some mornings, in which he had difficulty getting up. This happened twice a month. On range of motion testing, forward flexion was 0 to 85 degrees. Extension was 0-30 degrees; lateral flexion was 0-30 degrees, bilaterally, and rotation was 0-30 degrees, bilaterally. All motions were performed with no objective evidence of pain. There was no additional loss of motion or function on repetitive motion. In regard to muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, there has been no evidence of muscle spasm. The examinations reports indicate that his posture is erect and his gait is normal. Furthermore, there has never been any evidence of reversed lordosis, or abnormal kyphosis. The record contains a September 2012 examination report associated with Social Security Administration (SSA) benefits. The Veteran’s forward flexion was 0 to 40 degrees. Extension was 0-20 degrees; lateral flexion was 0-20 degrees, bilaterally, and rotation was 0-15 degrees, bilaterally. Radiological study moderate degenerative changes in the facet joint and disc spaces in the lower lumbar, resulting in spinal canal stenosis and probable foraminal narrowing of varying degrees at the L4-5 and L5-S1 levels. There was also mild bilateral sacroiliac degenerative joint disease. At the March 2015 VA examination, the Veteran’s forward flexion was 0 to 70 degrees. Extension was 0-20 degrees; lateral flexion was 0-30 degrees, bilaterally, and rotation was 0-30 degrees, bilaterally. All motions were performed with no objective evidence of pain. There was no additional loss of motion or function on repetitive motion. At the January 2017 VA examination, the Veteran reported that his back symptoms had improved but recently he started to have episodes of back pain. Two to three times a year he had back pain on wakening. The range of motion study was considered normal. Forward flexion was 0 to 90 degrees. Extension was 0-30 degrees; lateral flexion was 0-30 degrees, bilaterally, and rotation was 0-30 degrees, bilaterally. All motions were performed with no objective evidence of pain. There was no additional loss of motion or function on repetitive motion. In regard to muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, there has been no evidence of muscle spasm. The examinations reports indicate that his posture is erect and his gait is normal. Furthermore, there has never been any evidence of reversed lordosis, or abnormal kyphosis. So, entitlement to an evaluation in excess of 10 percent for his lumbar spine disability under Diagnostic Code 5237 is not warranted. The Board acknowledges that the September 2012 examination report shows that the Veteran’s lumbar flexion was limited to 40 degrees. While this would be considered 20 percent disabling, the schedular rating takes into consideration periods of exacerbations. Since then he has undergone two VA examination, which show essentially normal range of motion. It is not shown that this exacerbation of symptoms was chronic. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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 U.S.C. § 1155. Therefore, a higher rating is not warranted based on range of motion. The Board also considered Diagnostic 5243 that evaluates intervertebral disc syndrome on either the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of any chronic orthopedic and neurologic manifestations. 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, there is no reported evidence of neurological manifestations or evidence that any physician prescribed bed rest for the Veteran’s lumbar spine disability during the relevant time period. His lay statements are considered to be competent evidence when describing symptoms of a disease or disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements regarding the severity of the Appellant’s symptoms must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. After consideration of all of the evidence, the Board finds that the preponderance of the evidence is against the claim for the assignment of a higher evaluation. REASONS FOR REMAND Since the Board has granted service connection for hypertension and the RO has granted higher ratings for service connected left knee and left shoulder disabilities, additional examination and opinion are needed. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist, to evaluate the issue of entitlement to a TDIU. In conjunction with the examination, the e-folder must be made available to and reviewed by the examiner. Following evaluation of the Veteran, the examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected disabilities and opine as to the impact on his ability to secure and follow a substantially gainful occupation. A complete rationale for all opinions should be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.D. Jackson, Counsel