Citation Nr: 18145480 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-17 038 DATE: October 29, 2018 ORDER The application to reopen the claim of entitlement to service connection for a back disorder is granted. Entitlement to service connection for a back disorder is denied. Entitlement to an initial evaluation in excess of 10 percent for status-post right shoulder surgery with rotator cuff tear is denied. Entitlement to an evaluation of 30 percent for status-post right shoulder surgery with rotator cuff tear from March 10, 2017 is granted. FINDINGS OF FACT 1. The RO denied service connection for a back disorder in a November 2009 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. 2. The evidence received since the November 2009 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for a back disorder. 3. A back disorder was not manifest during service and is unrelated to service. 4. Prior to March 10, 2017, status-post right shoulder surgery with rotator cuff tear was manifest by painful motion. 5. From March 10, 2017, status-post right shoulder surgery with rotator cuff tear is manifest by limitation of motion of the right shoulder (major) at midway between side and shoulder level. CONCLUSIONS OF LAW 1. The November 2009 rating decision denying service connection for a back disorder is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. A back disorder was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for an initial evaluation in excess of 10 percent for status-post right shoulder surgery with rotator cuff tear have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024 (2017). 4. From March 10, 2017, the criteria for an evaluation of 30 percent, but not higher, for status-post right shoulder surgery with rotator cuff tear have been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2003 to June 2008. 1. The application to reopen the claim of entitlement to service connection for a back disorder Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). 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 United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In a November 2009 rating decision, the RO denied service connection for a back disorder. The Veteran was notified of this denial but did not appeal nor submit evidence within the one year appeal period. The decision was, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the November 2009 rating decision, the RO considered the claim, service medical and personnel records, and VA treatment records, among other evidence. The RO denied the claim on the basis that the evidence did not show a current back disorder or evidence of a relevant in-service incurrence. In essence, at the time of the November 2009 denial, there was no evidence of a current back disability or a relevant in-service incurrence. Since the November 2009 rating decision, the medical evidence indicates the presence of intervertebral disc syndrome and the Veteran has submitted evidence, including a statement from a fellow servicemember, indicating that he injured his back while in service. As such, this evidence goes to cure a prior evidentiary defect. Hence, this evidence is not cumulative. Accordingly, reopening of the claim of service connection for a back disorder is warranted. 2. Entitlement to service connection for a back disorder Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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 or aggravated during service -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran has been diagnosed with intervertebral disc syndrome (IVDS) of the lumbar spine. The Veteran contends that his back disorder is the direct result of his active service. Specifically, the Veteran asserts through the April 2016 statement of a fellow servicemember that he injured his back while weightlifting in November 2007 on active duty. The statement indicates that the Veteran sought treatment and was informed that he had strained a muscle in his back, and that the Veteran experienced problems with his back for the remainder of his active service. Service treatment records document a normal spine and musculoskeletal system upon clinical evaluation at enlistment. At a July 2003 examination, the Veteran did not report any relevant symptoms or complaints. In a May 2004 treatment note, the Veteran specifically denies a back injury. In a January 2006 Pre-Deployment Health Assessment, the Veteran denied any relevant symptoms. In an August 2006 Post-Deployment Health Assessment, the Veteran specifically denied back pain, muscle aches or any relevant symptoms. In a March 2008 Report of Medical History upon separation, the Veteran again specifically denied back pain or any relevant back symptoms or disorders. At a January 2013 VA examination, the examiner opined that the Veteran’s diagnosed IVDS was less likely than not related to his active duty. The examiner considered the medical and lay evidence of record, to include service treatment records. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the January 2013 VA examiner’s opinion that the Veteran’s back disorder is less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician’s opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). The Board has also considered the lay statements of record, to include the Veteran’s previously referenced assertions. With respect to the Veteran’s report that he injured his back in November 2007 while weightlifting, the Board finds his assertion as supported by a fellow servicemember to be competent and credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the Veteran reports he was diagnosed with a muscle strain while in service. However, he has not indicated that he was diagnosed with a chronic disorder by a medical professional during service or immediately thereafter, other than muscle strain. Id. The Veteran’s lay evidence of onset and continuity is far less probative than the opinion of the VA professional, as the VA medical opinion is far more detailed and reasoned; thus warranting a greater probative value. The Board finds that the probative value of the lay assertions are outweighed by the clinical evidence of record. Physical examinations during service do not reveal any relevant symptoms or complaints, and the Veteran specifically denied any relevant symptoms upon separation. This directly contradicts the Veteran’s assertion of continuity and instead suggests that any muscle strain that the Veteran experienced in November 2007 was acute and transitory. In other words, any injury that the Veteran experienced while weightlifting in approximately November 2007, or any other time in service, did not result in the manifestation of a chronic back disorder. The Board affords the medical evidence of record, to include in-service examinations, the Veteran’s specific denial of relevant symptoms upon separation and the VA medical opinion, greater probative value than the post-service lay assertions of the Veteran and fellow servicemember. In sum, there is no reliable evidence linking the Veteran’s back disorder to service. The contemporaneous records establish that there were no documented manifestations of a chronic back disorder in service, the back was physically normal upon separation and the current disorder was first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than the Veteran’s report of onset, continuity and treatment. Furthermore, the evidence establishes that the remote onset of a back disorder is unrelated to service. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 3. Entitlement to an initial evaluation in excess of 10 percent for status-post right shoulder surgery with rotator cuff tear Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Board has determined that a staged evaluation is appropriate due to medical evidence indicating a worsening of the Veteran’s right shoulder disability in March 2017. In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran is in receipt of an initial 10 percent evaluation for status post right shoulder surgery with rotator cuff tear under Diagnostic Code 5024. See 38 C.F.R. § 4.71a. The Veteran has challenged his initial evaluation. He is in receipt of a temporary total evaluation for convalescence following right shoulder surgery from July 30, 2012 to September 30, 2012. The Board will not address this period. As a preliminary matter, the evidence shows that the Veteran’s right shoulder is his dominant shoulder. Diagnostic Code 5024 (Tenosynovitis) directs that the affected part should be evaluated on limitation of motion. Under Diagnostic Code 5201, the major shoulder is rated as follows: limitation of motion to shoulder level (i.e. 90 degrees) warrants a 20 percent rating; motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion) warrants a 30 percent rating; and motion limited to 25 degrees or less from the side is rated at 40 percent. 38 C.F.R. § 4.71a. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). For the period prior to March 10, 2017, a review of private and VA treatment records, to include VA examinations in July 2012 and March 2013, does not reveal range of motion findings consistent with a higher evaluation. Recorded range of motion findings document right shoulder flexion and abduction well over 90 degrees, or shoulder level. In addition, medical records do not document ankylosis, impairment of the clavicle or scapula, or impairment of the humerus during this period. As a result, a higher evaluation under Diagnostic Codes 5200, 5202 and 5203 is not warranted. The current initial 10 percent evaluation contemplates pain on motion. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of motion to shoulder level. The medical evidence of record indicates that the Veteran was able to raise his right arm well above 90 degrees, or shoulder level, throughout this period. As a result, the Board finds that an evaluation in excess of 10 percent for this period is not warranted. The Board has considered the Veteran’s report of shoulder pain and functional loss during this period. See DeLuca, supra. However, neither the lay nor clinical evidence demonstrated painful motion that functionally limits shoulder motion beyond that contemplated by the current evaluation. See 38 C.F.R. § 4.59. The Board recognizes that the Veteran experienced shoulder pain and reported flare-ups of pain. 38 C.F.R. §§ 4.40, 4.45. There was not additional limitation of motion after repetitive use testing sufficient to warrant a higher evaluation. As such, the Board finds that the symptoms associated with the service-connected right shoulder did not more nearly approximate the criteria for an evaluation in excess of 10 percent under Diagnostic Code 5024 for this period. 4. Entitlement to an evaluation of 30 percent for status-post right shoulder surgery with rotator cuff tear, from March 10, 2017 The Veteran submitted a March 2017 private treatment record documenting abduction of the right shoulder limited to 80 degrees. In addition, an August 2017 Disability Benefits Questionnaire documents right shoulder flexion and abduction at 70 degrees. There was not additional limitation of motion upon repetitive use testing. These medical findings are consistent with an evaluation of 30 percent under Diagnostic Code 5201 for functional imitation of the right shoulder midway between the side and shoulder level. As a result, an increased evaluation of 30 percent is warranted from March 10, 2017, the date of the private treatment record documenting such functional limitation. There is no medical or lay evidence prior to this date that indicates such a degree of severity, and previous medical evidence indicated range of motion substantially greater than shoulder level. Here, based upon facts found, there was a change in the level of disability and the first evidence demonstrating the change is the March 2017 evidence. 38 U.S.C. § 5110(a). In order to warrant a higher evaluation, there must be the functional equivalent of limitation of motion to 25 degrees from the side. The medical evidence of record indicates that the Veteran was able to raise his right arm well above 25 degrees. As a result, the Board finds that an evaluation in excess of 30 percent for this period is not warranted. The Board has considered the Veteran’s report of shoulder pain and functional loss during this period. See DeLuca, supra. However, neither the lay nor clinical evidence demonstrated painful motion that functionally limits shoulder motion beyond that contemplated by the current evaluation. See 38 C.F.R. § 4.59. The Board recognizes that the Veteran experiences shoulder pain and reports flare-ups of pain. 38 C.F.R. §§ 4.40, 4.45. There was not additional limitation of motion after repetitive use testing sufficient to warrant a higher evaluation. In addition, medical records do not document ankylosis or impairment of the humerus during this period. As a result, a higher evaluation under Diagnostic Codes 5200 and 5202 is not warranted. The Board does note that the August 2017 DBQ documents impairment of the clavicle or scapula. However, it is limited to malunion of the clavicle or scapula. This would not warrant an evaluation in excess of 30 percent under Diagnostic Code 5202. A separate evaluation is not warranted, as the resulting symptoms are considered under the current 30 percent evaluation pursuant to Diagnostic Code 5201, and a separate evaluation would amount to pyramiding. 38 C.F.R. § 4.14. As such, the Board finds that the symptoms associated with the service-connected right shoulder have not more nearly approximated the criteria for an evaluation in excess of 30 percent under Diagnostic Code 5024 for this period. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel