Citation Nr: 18144232 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-10 009 DATE: October 25, 2018 ORDER The application to reopen the claim for service connection for hypertension is denied. Entitlement to service connection for a right knee sprain is denied. Entitlement to an evaluation higher than 20 percent for left shoulder rotator cuff tear is denied. REMANDED Entitlement to service connection for right shoulder disability, to include as secondary to left shoulder rotator cuff tear, is remanded. Entitlement to service connection for cervical radiculopathy of the right upper extremity, to include as secondary to left shoulder rotator cuff tear, is remanded. Entitlement to service connection for degenerative joint disease of the cervical spine, to include as secondary to service connected left shoulder rotator cuff tear, is remanded. Entitlement to service connection for sebaceous cyst right arm is remanded. Entitlement to service connection for right wrist condition is remanded. Entitlement to service connection for right hand condition is remanded. Entitlement to service connection for diabetes mellitus is remanded. FINDINGS OF FACT 1. In a March 2006, rating decision, the RO denied service connection for hypertension; the Veteran did not appeal this decision or submit new and material evidence within the one-year appeal period. 2. Evidence received since the March 2006, rating decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for hypertension. 3. The preponderance of the evidence is against finding that the Veteran has a right knee sprain due to a disease or injury in service. 4. At all relevant times, the Veteran’s left shoulder rotator cuff tear, has been manifested by pain with range of motion at or above the shoulder level. CONCLUSIONS OF LAW 1. The March 2006, rating decision denying service connection for hypertension is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 19.129, 19.192 (2017). 2. New and material evidence has not been received regarding the claim for service connection for hypertension, and the claim is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a right knee sprain have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for a disability rating higher than 20 percent for left shoulder rotator cuff tear have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.55, 4.56, 4.73, Diagnostic Code 5201(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1977 to September 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015, June 2016, and November 2016 rating decisions of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension In March 2006, the RO denied the Veteran’s claim for entitlement to service connection for hypertension. The Veteran was notified of this denial in a letter in March 2006, but did not appeal, and did not submit new and material evidence within the one-year appeal period. Therefore, this denial became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In the March 2006 denial, the RO indicated the service treatment records were negative for any complaints of or treatment for hypertension. The RO indicated no evidence had been submitted indicating hypertension occurred in or was caused by service. According to treatment records, the Veteran is diagnosed with hypertension. The Veteran submitted a request to reopen the previously denied claim of service connection, but he did not provide any new evidence of any indication that hypertension is related to service. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. There has been no evidence received since the March 2006 denial that indicates the Veteran suffers from hypertension that is related to his time in service. There is no evidence that could relate to the basis for the prior denial, and raises a reasonable probability of substantiating the claim. The claim is not reopened. 2. Entitlement to service connection for a right knee sprain The Veteran contends that he suffers from a right knee sprain that began during service. The question for the Board is whether the Veteran has a current disability that began during service, or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s right knee sprain is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). STRs document complaints of knee pain in December 1977, and again in August 1982. In August 1982 the Veteran complained of his knee giving out while running, and he had no complaints of pain. Private records from the Nodrick Chiropractor and Rehab center note the Veteran is diagnosed with right knee patellofemoral arthralgia. A DBQ was completed in July 2013. He was diagnosed with right knee patellar subluxation, and degenerative arthritis. He reported first injuring his knee while on active duty. In March 2014, the Veteran underwent an examination, at which time he was diagnosed with a right knee sprain. He reported initially injuring his knee during service. He complained of difficulty standing and walking due to knee pain. He reported sleep disruption due to pain. The examiner concluded his right knee sprain was less likely than not incurred in or caused by an in-service injury. The rationale was there are no notes in the STRs to indicate chronic sequelae from a right knee injury. Although the Veteran believes his right knee condition is proximately due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He is not competent to relate his current right knee complaints to the in-service treatment for right knee complaints. Consequently, the Board gives more probative weight to the VA examiner. Accordingly, the March 2014, examination and opinion, establishes that the Veteran’s right knee condition, is not at least as likely as not related to an in-service injury, event, or disease. The rationale was the service treatment records do not show treatment for any chronic knee condition, or for many years following service. The examiners’ opinion is the most probative evidence as to the nexus to service, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In other words, the most probative evidence of record does not show that the Veteran’s claimed right knee sprain is directly due to service. 3. Entitlement to an evaluation higher than 20 percent for left shoulder rotator cuff tear The Veteran’s left shoulder rotator cuff tear is evaluated as 20 percent disabling under Diagnostic Code 5201. The Veteran is right hand dominant. DC 5201 rates limitation of motion of the arm, assigning a 20 percent rating for limitation of motion at the shoulder level of both major and minor joints. Limitation of motion of the major and minor joint midway between the side and shoulder level warrants a 20 and 30 percent rating for the minor and major joints, respectively. Limitation of motion of the major and minor joint to 25 degrees from side warrants a 30 and 40 percent rating for the minor and major joints, respectively. Under Diagnostic Code 5202, impairment of the humerus, the criteria for a 20 percent rating, the lowest rating, are malunion of moderate deformity, or infrequent episodes of dislocation with guarding of movement only at shoulder level. The criteria for a 30 percent are frequent episodes of dislocation with guarding of all arm movements. Higher ratings are awarded for findings of fibrous union, nonunion (false flail joint), and loss of the head of the humerus (flail joint). Under Diagnostic Code 5203, malunion of the clavicle, the criteria for a 20 percent rating is dislocation or nonunion with loose movement of the clavicle or scapula. Normal range of motion in the shoulder is from 0 to 180 degrees of flexion, 0 to 180 degrees of abduction, and 0 to 90 degrees of external and internal rotation. Flexion or abduction limited to 90 degrees equates to shoulder level. 38 C.F.R. § 4.71, Plate I. For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. (quoting 38 C.F.R. § 4.40). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Painful motion without functional limitation, however, cannot serve as the basis for a rating in excess of the minimum. Mitchell, supra. Turning to the facts of the case, the Veteran underwent a VA examination in March 2015. He had a left shoulder rotator cuff tear. He reported daily pain affecting his sleep and activities of daily living. He was taking NSAID’s and gabapentin for pain management. He is right hand dominant. He reported the functional impairment being modified upper body dressing and bathing. Range of motion was flexion to 35 degrees, abduction 30 degrees, external rotation to 20 degrees, and internal rotation to 15 degrees. He had pain in each range of motion. There was no evidence of pain with weight bearing. He had tenderness or pain on palpation at the bicipital groove and acromion. There was no evidence of crepitus. He was not examined immediately after repetitive use over time, but the examination was deemed medically consistent with the Veteran’s statements describing functional loss with repetitive use. The Veteran was not able to perform repetitive use testing, because of exacerbation of pain. Pain and lack of endurance were deemed to contribute to functional loss. There was no indication of flare-ups. There was no evidence of instability, dislocation or labral pathology, or of a clavicle scapular, AC joint or sternoclavicular joint condition. He had no impairment to the humerus. Arthritis was not documented. The functional impact was he is unable to tolerate range of motion at the shoulder, and minimal functional range of motion due to pain. In April 2018, the Veteran underwent a shoulder examination. He reported being in constant aching pain. The pain interfered with his sleep, and he was unable to sleep on his left side. He could perform activities of daily living, to include dressing himself without assistance. He is right hand dominant. He denied flare-ups of the shoulder or arm. Functional loss was described as an inability to move his arm in any direction. The examiner was unable to test his left shoulder range of motion, as the Veteran stated to move his shoulder in any direction would be too painful. He explained he had pain in each range of motion. There is no evidence of pain with weight bearing. The examiner explained the Veteran had an exaggerated pain response to light touch, of the entire shoulder area. There was no evidence of crepitus. He was unable to perform repetitive use testing with at least three repetitions. He was not examined after repetitive use over time, and the exam was deemed neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say whether pain, weakness, fatigability or incoordination limit functional ability with repeated use over a period of time without mere speculation. There was no indication of ankylosis. There was no evidence instability, dislocation, or labral pathology. His left AC joint was tender on palpation. He did not have a humerus condition. X-rays revealed minimal osteophytosis of the inferior glenoid, but no fracture. He had pain with passive range of motion, that caused decreased range of motion. The Veteran notably gave poor effort in performance of range of motion testing of the left arm. He refused to allow the examiner to perform passive range of motion testing, or to touch his left shoulder. Slight touch to any area of the left shoulder resulted in the Veteran yelling out in pain and pulling away, which was deemed by the examiner as an exaggerated response. Current radiology studies and pathological findings, provided no etiology for the immobility of the left arm/shoulder. Treatment records are generally consistent with the findings of the examinations. The Veteran’s lowest range of motion was flexion to 35 degrees, and abduction to 30 degrees at the 2015 examination. He refused testing at the 2018 examination, with notes by the examiner that the Veteran had an exaggerated response throughout testing. During examination, he experienced pain with range of motion, however, no further limitations in range of motion following repetitions were ever noted. Even considering the Veteran’s lay reports of functional impairment, the Board finds that a rating higher than 20 percent is not warranted. The demonstrated functional impairment, including pain on use, does not more nearly approximate or equate to flexion or abduction representing limitation of motion of the arm midway between the side and shoulder level, which is the criteria for a higher rating under Diagnostic Code 5201. There is no competent and credible evidence that he suffers from limitation of the joint to 25 degrees from the side. Although the Veteran may have described symptoms such as limitation of movement to 25 degrees to the side, his contentions lack credibility based on his exaggerated response during the 2018 examination and poor effort/performance. As such, the most probative evidence describing the limitation of motion in the left shoulder joint is as described by the VA examiners. Based on a review of the relevant evidence, and the applicable law and regulations, it is the Board’s conclusion that the preponderance of the evidence does not favor an assigment of a rating higher than 20 percent. The demonstrated functional impairment, including pain on use, does not more nearly approximate or equate to flexion or abduction representing limitation of motion of the arm to 25 degrees, the criterion for the next higher rating higher for limitation of flexion or abduction for the minor extremity under Diagnostic Code 5201. Thus, the Board’s finding applies even after considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, painful movement, and repetitive motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Therefore, the criteria for the next higher rating for limitation of flexion or abduction under Diagnostic Code 5201, 30 percent, have not been met. DC 5200 provides rating criteria for ankylosis of scapulohumeral articulation, where the scapula and humerus move as one piece. The relevant criteria indicate that favorable ankylosis is abduction to 60 degrees; while unfavorable ankylosis is abduction limited to 25 degrees. A maximum 40 percent disability rating is warranted for unfavorable ankylosis of the dominant side, where abduction is limited to 25 degrees from the side. There is no evidence of intermediate ankylosis between favorable and unfavorable to warrant the next higher evaluation of 30 percent under DC 5200. Under Diagnostic Codes 5202, the criteria require impairment of the humerus. As stated above, there is no evidence that the Veteran has such impairment, thus Diagnostic Code 5202 is not for application. Finally, Diagnostic Code 5203 does not provide a disability rating higher than 20 percent, except when rated on impairment of function of the contiguous joint. None of the Veteran’s VA examinations indicated ankylosis of the scalpohumeral articulation, fibrous union, nonunion, or loss of head of the humerus. The Veteran’s left shoulder disability does not meet the criteria for a rating higher than 20 percent. The Board notes that, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, there are limited or no reports of left shoulder flare-ups. The Veteran is competent to report that he experiences certain symptoms, such as shoulder pain, or that his disability causes him difficulty with personal activities. See Davidson, 581 F.3d at 1313. However, the Veteran is not competent to assert that his symptoms are reflective of those associated with a higher rating for his left shoulder. He is not a medical professional or shown to have specialized medical knowledge to determine whether his disability level warrants a higher rating. Thus, in reaching the conclusion stated herein, the Board assigns greater probative value to the findings set forth in the examinations. Considering the above, the Board finds that the evidence is against a rating higher than 20 percent. Therefore, the Veteran’s claim for an increased rating as to his left shoulder disability is denied. REASONS FOR REMAND 1. Entitlement to service connection for right shoulder disability to include as secondary to left shoulder rotator cuff tear is remanded. 2. Entitlement to service connection for cervical radiculopathy of the right upper extremity to include as secondary to left shoulder rotator cuff tear is remanded. 3. Entitlement to service connection for degenerative joint disease of the cervical spine, to include as secondary to left shoulder rotator cuff tear is remanded Service treatment records do not contain any evidence of treatment, complaints of diagnosis of a right shoulder condition, cervical spine condition, or cervical radiculopathy. The Veteran underwent a shoulder examination in March 2015. In July 2015, an opinion was rendered. The examiner noted the Veteran’s left shoulder condition would have no direct or indirect relationship to the cervical spine anatomically, biomechanically, or pathophysiologically. His current cervical spine degenerative joint disease, and stenosis, with radiculopathy is less likely than not due to a fall in service, or proximately due to or the result of the left shoulder rotator cuff tear. The examiner also rendered an opinion regarding the right shoulder. It was noted the Veterans private treatment records show cervical stenosis with right upper extremity radiculopathy, and brachial neuritis. The Veteran had complaints of chronic neck pain, with numbness, and tingling in the right upper extremity. The Veteran’s right shoulder pain was diagnosed as radiculitis related to cervical stenosis. The examiner concluded it is less likely than not that right shoulder pain is related to a fall in service, or to the left shoulder condition. The Veteran has asserted that his right arm and cervical conditions have been aggravated by the left arm condition. There is no opinion of record addressing this contention. As such, the claim must be remanded for an addendum opinion addressing whether the right shoulder, cervical spine, or cervical radiculopathy was aggravated by the left shoulder condition. 4. Entitlement to service connection for sebaceous cyst right arm is remanded. 5. Entitlement to service connection for right wrist condition is remanded. 6. Entitlement to service connection for right hand condition is remanded. 7. Entitlement to service connection for diabetes mellitus is remanded. The Veteran has filed a claim for service connection for a right-hand condition, right wrist condition, and sebaceous cyst of his right arm. In an April 2017 statement, he relayed that the cyst was removed sometime in 1977 or 1978, and has continued to be itchy and painful. STRs document a report in September 1978, the Veteran was seen with complaints of a pustular lesion on his right arm. He was found to have local cellulitis and pruritis. An incision and drainage was done. In October 1978, he was seen with complaints of severe pain at his right axilla, and a small tender, ½ centimeter nodule was noted. An entry from January 1980, notes a possible sebaceous cyst, in the right temple area, with a note that he had one previously on his right forearm over a year ago. The Veteran’s STRs document a trauma to the right hand in February 1980. The records note the Veteran injured his right hand and wrist when he fell. In June 2017, the Veteran requested an examination to determine the etiology and severity of his hand condition. A June 2017 correspondence from Dillon Family medicine, relayed that the Veteran suffered from chronic soft tissue inflammation, and extensor tendinitis. Regarding diabetes, the Veteran contends that he suffers from diabetes mellitus, as a result of his time in service. He contends that during service he experienced elevated blood sugars. Private records from the Nodrick Chiropractor and Rehab center note the Veteran has been diagnosed with diabetes mellitus. The Veteran has not been afforded a VA examination as to these claimed disabilities. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. The low threshold for triggering the duty to provide an examination has been crossed. An examination is needed to determine if the Veteran suffers from diabetes mellitus, a right hand, right wrist condition, or a condition related to the in-service sebaceous cysts, that is related to his military service. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all ongoing treatment records. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran. 2. Schedule the Veteran for appropriate examinations for the Veteran’s claimed diabetes, right hand condition, right wrist condition, and sebaceous cysts of the right arm. The claims file should be made available to the examiner. Following a review of the claims file, the reviewing examiner shoulder provide an opinion for the following questions: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes, right hand condition, right wrist condition, or condition related to sebaceous cysts of the right arm, are related to his service? The examiner is asked to address the Veteran’s contentions, and to provide a rationale for all opinions reached. 3. Obtain an addendum opinion regarding the claimed right shoulder, cervical spine, and cervical radiculopathy disabilities. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner should answer the following questions: Is it at least as likely as not that a right shoulder condition, cervical spine condition, cervical radiculopathy, was caused OR aggravated (worsened beyond its natural progression) by the service-connected left shoulder condition? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the right shoulder condition, cervical spine condition, cervical radiculopathy, by the service-connected disability. If not, is it at least as likely as not that the Veteran’s right shoulder condition, cervical spine condition, cervical radiculopathy, is otherwise related to an event, injury, or disease in active duty? The examiner is asked to address the Veteran’s contentions, and to provide a rationale for all opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel