Citation Nr: 18145113 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 16-08 518 DATE: October 30, 2018 ORDER 1. Service connection for a right shoulder disability is denied. 2. Service connection for lymphedema is denied. 3. A rating in excess of 10 percent for lumbar spine degenerative joint disease prior to February 24, 2016 is denied. 4. A 20 percent rating, but not higher, is granted for lumbar spine degenerative joint disease from February 24, 2016. FINDINGS OF FACT 1. Right shoulder osteoarthritis was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. 2. Lymphedema was not manifest in service and was not caused or aggravated by his service connected lumbar spine or left hip disability. 3. Prior to February 24, 2016, the Veteran did not have forward flexion of his thoracolumbar spine limited to 60 degrees or less; a combined range of motion of the thoracolumbar spine of 120 degrees less; 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. 4. From February 24, 2016, the Veteran's thoracolumbar spine flexion was limited to 60 degrees. However, he did not have forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for lymphedema have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for a rating in excess of 10 percent for lumbar spine degenerative joint disease prior to February 24, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 4. The criteria for a 20 percent rating, but not higher, have been met for lumbar spine degenerative joint disease from February 24, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1964 to December 1966. He died in September 2017. The appellant, who is his widow, has been substituted as the claimant. The appellant provided testimony during a February 2018 Board hearing before the undersigned. At the time, she was given an additional 60 days to submit additional evidence, but submitted no additional evidence. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Board notes that the Veteran reported in February 2016 that his service treatment records from when he received rehabilitation from January 1 through February 4, 1966 are absent. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. 1. Service connection for a right shoulder disability Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current right shoulder disability. The evidence, including a March 2015 VA examination report, indicates the Veteran had mild osteoarthritis of the acromioclavicular joint and glenoid articular surface. Service treatment records are silent for reference to right shoulder problems. On service discharge examination in November 1964 the Veteran denied having or having had shoulder trouble or arthritis, and his right shoulder was clinically normal. The service treatment records show treatment for a right knee problem in December 1965 through February 1966, after a 12/21/65 fall from a tower, but not for right shoulder problems. However, the Veteran was awarded a Purple Heart for wounds received in action on December 21, 1965, and statements in the record that he injured his right shoulder in combat, falling from a tower on this date, will be accepted for the purposes of this decision. See 38 U.S.C. § 1154(b). While a right shoulder injury in service has been acknowledged, the preponderance of the evidence indicates that the Veteran's current right shoulder osteoarthritis is unrelated to service. First, it was not shown when his right shoulder was examined on service discharge examination in November 1966, or until many years post-service. Also, a VA examiner considered the matter of nexus to service in December 2015, reviewing the Veteran's claims folder and opining that it was less likely than not related to service. The examiner noted that the Veteran reported no right shoulder symptoms on service discharge examination in November 1966, and that no right shoulder abnormalities were found on evaluation at that time. The examiner also noted that medical records showed a visit in August 2014, at which time the Veteran reported right shoulder pain had been present for only 1 ½ years, and that he reported no significant injuries when he reported that complaint. Osteoarthritis was found on VA examination in March 2015, almost 50 years post-service, and only mild right shoulder degenerative joint disease had been found in August 2014. The examiner noted that degenerative joint disease/osteoarthritis is an age-related condition, most commonly resulting from chronic wear and tear which occurs over time as a result of normal physical activities. The examiner noted that “Up to Date” indicates that these radiographic changes are frequently found in adults over the age of 30, and that the Veteran was 71 when his right shoulder arthritis was diagnosed. The examiner stated that there is no medical evidence to suggest that the Veteran's mild age-related disease is the result of any injury sustained 50+ years ago. Accordingly, the examiner’s opinion was that the Veteran's mild right shoulder osteoarthritis was less likely than not incurred in or caused by the Veteran's active service from 1964 to 1966. There is no competent evidence of record to the contrary. VA had developed and addressed the matter of secondary service connection for right shoulder disability based on the erroneous assumption that the Veteran was asserting a relationship between his right shoulder disability and other service-connected disability/ies (low back and knee). However, the Veteran was clear in his April 2015 notice of disagreement that his only assertion was that his right shoulder injury in service occurred at the same time as his right knee and that his shoulder is physically connected through his back due to the fact that he has pain from his shoulder to his mid-back. There is nothing elsewhere in the record that indicates a relationship between his right shoulder disability and a service-connected disability, and a March 2015 VA medical opinion concluded the right shoulder was not due to a service connected condition because degenerative joint disease of the lumbar spine is not a risk factor for developing degenerative joint disease in the right shoulder. While an aggravation opinion was not obtained, the Board does not find that further development with respect to this theory of entitlement is warranted as there is nothing to suggest an aggravation relationship between the Veteran’s right shoulder disability and a service-connected disability, to include the Veteran’s contentions. Thus, and the preponderance of the evidence is against secondary service connection on either a causation or aggravation basis. 2. Service connection for lymphedema Based on the evidence, the Board concludes that service connection is not warranted for lymphedema. The preponderance of the evidence shows that this was not manifest in service and is unrelated to service. The service treatment records do not mention it, the Veteran's lymphatics were normal on service discharge examination in November 1966, and the Veteran reported in September 2016 that he did not develop edema or lymphedema in service, but that instead, it was due to his service connected low back and right knee disabilities. [He is not competent to indicate this, as it is a disorder which can have numerous causes. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).] The Veteran stated in May 2015 that he first noticed his edema/lymphedema in 2012, corresponding with progressive pain in his lower back and hip. It was first treated in 2014. In July 2015, a VA examiner opined that it was less likely than not proximately due to or the result of the Veteran's service connected low back or left hip disorders. The rationale was that there is no correlation between low back pain and/or left hip pain and lower leg edema, and that the Veteran's edema is not aggravated by his service connected low back or left hip disorder. The examiner indicated that the Veteran's morbid obesity contributed to his lower leg edema. As can be seen from the above evidence and discussion, the preponderance of the evidence is against the claim, and so it must be denied. 3. & 4. A rating in excess of 10 percent for lumbar spine degenerative joint disease Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appealed for a higher rating for his service-connected lumbar spine degenerative joint disease, which was rated as 10 percent disabling, under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under 38 C.F.R. § 4.71a’s General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or where there has been a vertebral body fracture with loss of 50 percent or more of its height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is 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 is present. A 40 percent rating requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. This claim period dates back to August 2013. VA service connected low back and left lower extremity disabilities in July 2014, and the Veteran disagreed with the rating of 10 percent for his left lower extremity radiculopathy. However, his notice of disagreement indicated he only wanted a 10 percent rating for the radiculopathy, and after the statement of the case was issued in August 2016, his September 2016 VA Form 9 limited the issue to the 10 percent rating assigned to the low back disability. Accordingly, the Board concludes that the rating for left lower extremity radiculopathy is not on appeal as part of his appeal for a higher rating for his low back disability. Based on the evidence, the Board concludes that a rating in excess of 10 percent is not warranted for the Veteran's service connected lumbar spine degenerative joint disease prior to February 24, 2016. The preponderance of the evidence indicates that prior to February 24, 2016, the Veteran did not have thoracolumbar spine forward flexion limited to 60 degrees or less; or a combined range of motion of his thoracolumbar spine which is 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. On VA evaluation in January 2014, the Veteran's flexion was to about 80 degrees, his extension lacked about 10 degrees to neutral, and side bending and rotation were limited symmetrically. On VA examination in July 2014, his thoracolumbar spine forward flexion was to 90 degrees, extension was to 5 degrees, and right and left lateral flexion were each to 20 degrees, with painful motion beginning at 5 degrees of extension and at 20 degrees or lateral flexion. Right and left lateral rotation were to 30 degrees, with no objective evidence of painful motion. There was no change in forward flexion or extension with 3 repetitions, but right and left lateral flexion were reduced to 10 degrees with such repetitions. He did not have thoracolumbar spine localized tenderness or muscle spasms, and he did not have muscle spasms or guarding resulting in an abnormal gait or spinal contour. The Veteran had emphasized the treatment by his private physicians as supporting his appeal. However, a January 2014 private medical record shows flexion to about 80 degrees, and extension to about 10 degrees. Likewise, a May 2014 private medical record shows lumbar spine forward flexion to about 70 degrees, and extension to neutral. Side bending and rotation were not specified in degrees. In August 2014, back pain was doing better. Forward flexion was to 80 degrees, extension was to neutral, side bending was to 10 to 20 degrees bilaterally, and rotation was within normal limits. Additionally, on VA evaluation in July 2015, the Veteran could flex to 80 degrees and extend to about neutral. Accordingly, in light of the evidence, a rating in excess of 10 percent prior to February 24, 2016 is not warranted. The Board concludes, however, that from February 24, 2016, a 20 percent rating, but not higher, is warranted. On VA evaluation on that date, the Veteran's lumbar flexion was to 60 degrees. This just barely warrants a 20 percent rating under the General Formula for Rating Diseases and Injuries of the Spine, but no evidence shows that its criteria for a 40 percent rating from this point forward is warranted. To the contrary, the evidence shows only limitation of lumbar flexion to 60 degrees on February 24, 2016, and no worse limitation of motion after this. Thoracolumbar spine forward flexion limited to 30 degrees or less or ankylosis of the entire thoracolumbar spine would need to be shown for a 40 percent rating under the General Formula. The Board notes that there is an alternative way to rate thoracolumbar spine disability, based on 38 C.F.R. § 4.71a’s Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, with an incapacitating episode being defined in part as requiring bed rest prescribed by a physician. However, the appellant testified in February 2018 that the Veteran's lumbar spine disability did not require bed rest, and no evidence indicates that the Veteran had bed rest prescribed by a physician for intervertebral disc syndrome during the rating period. Accordingly, a higher rating under that formula is not possible. The Board expresses its deepest sympathy to the appellant and her family for the loss of the Veteran, as well as its appreciation for the Veteran’s honorable service in the U.S. Army, including his combat service in Vietnam. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lawson, Counsel