Citation Nr: 18145795 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-06 683 DATE: October 30, 2018 ORDER 1. Entitlement to service connection for a bilateral shoulder disability is denied. 2. Entitlement to service connection for a bilateral hip disability is denied. 3. Entitlement to an initial rating in excess of 10 left knee disability is denied. FINDINGS OF FACT 1. A bilateral shoulder disability was not manifest during service or for many years thereafter and is not shown to be related to service. 2. A bilateral hip disability was not manifest during service or for many years thereafter and is not shown to be related to service or to any service-connected disability. 3. The Veteran’s left knee disability has been manifested by painful but otherwise noncompensable limitation of motion; compensable limitation of flexion, extension, or instability has not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right and left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for right and left hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for a rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to August 1970. This matter is on appeal before the Board of Veterans Appeals (Board) from August 2011, August 2013 and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Board remanded the issues of entitlement to service connection for bilateral shoulder disability, increased rating for left knee, service connection for an acquired psychiatric disability, entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) and entitlement to dental treatment for further development. In a November 2016 rating decision, the RO granted entitlement to service connection for acquired psychiatric disorder (PTSD with unspecified depressive disorder and neurocognitive disorder), entitlement to a TDIU and entitlement to special monthly compensation based on housebound criteria. In turn, the award of TDIU entitles the Veteran to any needed outpatient VA dental treatment. See 38 C.F.R. § 17.161(h). Also, the evidence of record shows that subsequent to the TDIU award the Veteran has been receiving VA dental treatment. See e.g. January 6, 2017 VA dentistry note. Accordingly, the claims for entitlement to service connection for acquired psychiatric disorder, entitlement to a TDIU and entitlement to dental treatment are no longer on appeal before the Board. As recently as September 2017, the Veteran’s attorney submitted additional correspondence concerning notices of disagreement filed in December 2015 and February 2017. In particular, the attorney highlighted the February 2017 NOD, which claimed an earlier effective date for assignment of a TDIU. As it is evident from the internal VA claims database that the agency of original jurisdiction (AOJ) is aware of the need to respond to these notices of disagreement by issuing statements of the case, the Board is not issuing a formal remand instructing the AOJ to do so. Additionally, it would be premature for the Board to address the claim for an earlier effective date for TDIU as it is based on an assertion that referral for extraschedular consideration is required, a matter that is initially under the purview of the AOJ. 1. Service connection for bilateral shoulder and hip disabilities Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. 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). To establish service connection for a claimed disorder, there must be: (1) medical evidence of a 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 between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Certain listed, chronic disabilities, including arthritis, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Right and left shoulder disability The Veteran alleges that he has a right and left shoulder disability due to a fall he suffered aboard ship during service. A June 2012 private progress note indicates that the Veteran was experiencing right shoulder pain, which he attributed to previous injuries he sustained while he was in the military. The treating physician assessed the Veteran as having a new medical problem of degenerative joint disease of the right shoulder. A July 2012 private treatment record indicates that the Veteran was continuing to have pain in both shoulders and includes a diagnostic assessment of degenerative joint disease of the right shoulder, unchanged. July 2013 VA shoulder X-rays showed narrowing of the AC joints bilaterally with osteophyte changes. A September 2013 VA primary care record also notes a past medical history of osteoarthritis of the shoulders. Additionally, at a September 2013 VA occupational therapy visit, the Veteran reported pain in the bilateral shoulders for approximately 5 to 10 years. He also indicated that he had had a knot in the right shoulder for approximately 4 years. At a January 2016 VA examination, the examiner diagnosed the Veteran with degenerative arthritis of both shoulders. This evidence clearly establishes a current bilateral shoulder disability. Regarding manifestation of any shoulder disability during service, the service treatment records do not show any findings or complaints of any shoulder pathology. In May 1968, the Veteran was noted to have hurt his right elbow; in January 1969, he was noted to possibly have glass chips in his arm after having fallen through a glass shower door; in December 1969, he was noted to have fallen after tripping on a curb, resulting in injury to the left knee and right side; and in May 1970 he was noted to have fallen from top to the bottom of a ladder, striking his back and left hand, resulting in complaints of pain in the left side, the back and the left hand. Following the fall in May 1970, the Veteran underwent X-rays of the chest and hand, both of which were negative. None of these records show any complaints of pain or other pathology in either shoulder. Similarly, at a May 1969 reenlistment examination, the upper extremities were found to be normal and no shoulder pathology was noted. Also, a June 1970 Medical Board evaluation showed a diagnosis of motion sickness with a physical examination that was otherwise within normal limits. Accordingly, the medical evidence does not show injury to either shoulder during military service. Post-service, the earliest medical evidence of shoulder pathology is the June 2012 progress note with the Veteran’s subsequent reporting at the September 2013 VA occupational therapy visit tending to indicate that post-service shoulder pain had begun as early as sometime around 2003. In January 2016, the Veteran was afforded a VA shoulder examination at which the examiner diagnosed degenerative arthritis of both shoulders. At the examination, the Veteran reported that he fell in service and hurt his shoulder. After examining the Veteran and reviewing the claims file, the examiner concluded that it is less likely than not that the Veteran’s claimed bilateral shoulder condition is due to or caused by his fall in-service. The examiner commented that the service treatment records were negative for any shoulder complaints in service; that post-service medical records do not show a diagnosis of a shoulder condition until 2012 and that the Veteran’s shoulder arthritis shown on X-rays was consistent with bilateral shoulder arthritis due to aging. There is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the current right or left shoulder disability is related to service). Thus, the weight of the evidence is against the presence of a nexus between current bilateral shoulder disability and the Veteran’s military service. As noted above, the Veteran reported during the VA examination that he did injure his shoulder during a fall in service. The Board presumes that if he had injured his shoulder during one of his falls in service, he would have reported it to medical personnel soon after the injury, just as he reported injuries to his right elbow, arm, left knee, right side, back and left hand. Similarly, when recounting his history of past shoulder problems at the September 2013 VA occupational therapy visit, the Veteran did not indicate that he had injured either shoulder during service, instead reporting that he had experienced shoulder pain for the past 5 to 10 years. Given the nature of this earlier reporting, the Board does not find credible the Veteran’s report to the January 2016 VA examiner that he injured his shoulder during a fall in service. (Similarly, given the Veteran’s reporting to treating medical personnel noted above, to the extent he is alleging continuity of shoulder symptomatology since service, the Board also does not find such allegation credible). Accordingly, the Board finds that the VA examiner relied on an accurate medical history when concluding that the Veteran’s current bilateral shoulder disability is less likely than not related to service. Moreover, to the extent the Veteran is asserting that his current shoulder is otherwise related to service (i.e. on a basis other than continuity of symptomatology), as a layperson without any demonstrated expertise in determining medical etiology, the Board does not afford such an assertion any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, because shoulder pathology was not shown in service or for many years thereafter and because the Veteran’s current right and left shoulder disabilities are not shown to be related to service, there is no basis for awarding service connection on a direct or presumptive basis. The preponderance of the evidence is against these claims and they must be denied. B. Right and left hip disability The Veteran primarily alleges that he has right and left hip disability due to his already service-connected back and left knee disabilities. The evidence shows that the Veteran does have current arthritis of the bilateral hips. Also, in regard to whether this hip disability is secondary to the low back and/or left knee, the Veteran was provided with a medical examination by a private examiner on behalf of VA in September 2018. After the examination and review of the claims file, the examiner concluded that it was less likely than not that the Veteran’s service-connected low back and/or knee disabilities had caused or aggravated his hip disability. The examiner reasoned that medical information from the Mayo Clinic and Web MD indicates that lumbar back conditions are not the cause of hip pain or strain. Similarly, the examiner reasoned that information from the Mayo Clinic and Web MD indicates that back and knee conditions are not known to aggravate hip conditions beyond their normal progression. There is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the current left or right hip disability has been caused or aggravated by the hip and/or back disability). Moreover, although the Veteran asserts that the knee and/or back disability have caused or aggravated the hip disability, as a layperson, without any demonstrated expertise in determining medical etiology, the Board does not afford this assertion any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the September 2018 examiner did not provide a detailed explanation of the information from the Mayo Clinic and Web MD upon which she relied. However, her general explanation of her reliance on these sources considered in combination with her underlying medical expertise as a nurse practitioner indicates that her opinion, while general in nature, is supported by an adequate rationale. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the medical opinion inadequate). Consequently, the weight of the competent evidence is against a finding that the service-connected back and/or left knee disability has caused or aggravated the current right or left hip disability. Accordingly, secondary service connection for right and left hip disability is not warranted. 38 C.F.R. § 3.310. The Board notes that at an April 2015 examination, the Veteran reported hip pain since a fall from a deck in service in 1969. However, like the shoulders, the Board presumes that if the Veteran had injured either hip during one of his falls in service, he would have reported it to medical personnel soon after the injury, just as he reported injuries to the right elbow, arm, left knee, right side, back and left hand. Similarly, the post service treatment records do not appear to show complaints of hip pain until 2010, yet VA treatment records associated with the claims file date back to 2006. The Board also presumes that if the Veteran had continued to have hip pain since the fall in service, he would have reported this continued pain to his medical providers prior to 2010 just as he did with his pain in other areas. (See e.g. November 2006 VA pain screen where the Veteran reports pain in the knees and hand joints with no mention of pain in the hips). Consequently, the Board does not find credible the Veteran’s report to the April 2015 examiner that he injured his hips during the fall in service and has experienced hip pain ever since. Thus, the medical evidence does not show any hip pathology during service or for many years thereafter or any suggestion that the current disability of either hip is related to service. Also, the Veteran’s reporting concerning onset and continuity of hip pathology is not credible. Additionally, as a layperson without any demonstrated expertise concerning medical etiology, any assertion that current hip disability is otherwise related to service may not be afforded any probative value. See e.g. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, there is no basis for awarding service connection for hip disability on a direct or presumptive basis. Additionally, because a hip injury, event or disease is not established as having occurred during service, a medical opinion pertaining to direct service connection for hip disability was not necessary. 38 C.F.R. § 3.159(c)(4). In sum, because hip pathology was not shown in service or for many years thereafter and because the Veteran’s current right and left hip disability have not shown to be related to service, or to have been caused or aggravated by left knee and/or back disability, the preponderance of the evidence is against these claims and they must be denied. 2. Rating in excess of 10 percent for left knee disability. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Service connection for left knee degenerative arthritis was granted by an August 2011 rating decision. The Veteran was assigned a 10 percent rating effective October 10, 2009. In August 2011, the Veteran filed a notice of disagreement, appealing the assigned 10 percent rating. The 10 percent rating currently assigned is based on the presence of arthritis with painful but otherwise non-compensable motion. See 38 C.F.R. § 4.71a, Diagnostic 5003. A number of other diagnostic codes can potentially be applied to rate service-connected knee disability. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. Under Diagnostic Code 5257 a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate subluxation or lateral instability, and a 30 percent rating for severe subluxation or lateral instability. The Veteran was afforded a June 2010 QTC examination and VA examinations in July 2011, January 2015 and January 2016 to assess the current severity of his left knee disability. Regarding Code 5260, none of these examinations showed flexion limited to 45 degrees or less to warrant a compensable rating. They also showed normal extension to 0 degrees and thus do not provide a basis for a compensable rating under Code 5261. Moreover, repetitive use testing did not show additional functional loss or range of motion loss during any of these examinations to warrant any higher rating based on such loss. Additionally, there were no findings of instability during any of these examinations to warrant a compensable rating under Code 5257. The Board notes that the Veteran has reported that his knee “gives way” at times. However, the Board finds the objective examination findings are more probative as to whether subluxation or instability exists and since none of the examiners of record found evidence of instability or subluxation, a separate rating under Code 5257 is not appropriate. The Board affords the findings on objective testing specifically designed to determine whether instability was present more probative than the Veteran’s assertions of give way. VA and private medical records and the lay statements of record also do not provide a basis for awarding any higher or separate ratings based on limitation of flexion or extension, instability or additional functional loss. Notably, lay statements from friends and family do indicate that the Veteran suffers from knee pain and decreased mobility and include at least one observation of knee swelling but when considered in relation to the medical evidence, do not establish that the left knee alone has loss of function compatible with flexion to 45 degrees or less, extension to 10 degrees or more, or mild instability. Moreover, the Board has considered whether a higher or separate rating could be assigned based on other potentially applicable rating codes. However, given that ankylosis, meniscal impairment or other separately ratable impairment of the knee has not been shown, such codes are not applicable. Further, during the January 2016 VA examination, the examiner specifically indicated that he was examining the Veteran during a flare-up. He also noted that the Veteran indicated that his flare-ups consisted of more pain and stiffness than his regular level of knee pain. The Veteran also reportedly did not treat a flare-up; he just let it pass. The Veteran noted that the flare-ups lasted a few hours and would then go away and that they had gotten more painful than they had been in the past. Cold weather and overuse such as walking caused flare-ups of more pain and stiffness. The Veteran also indicated that he had pain and stiffness in his knees every day and that medication, rest or changing positions helped the pain. The examiner found that overall, the Veteran’s pain did significantly limit his functional ability during a flare-up. Given the relatively short duration of the flare-ups and given that the examiner’s objective findings do not provide a basis for assigning a higher rating and were made during a flare-up, additional functional loss during a flare-up does not provide a basis for assigning a rating in excess of the existing 10 percent rating, which has been assigned based on functional loss due to painful but otherwise non-compensable limitation of motion due to the left knee degenerative arthritis. The evidence of record also includes a June 2012 left knee assessment from a private treating physician. This assessment shows a finding of right knee extension to 45 degrees. Also, boxes are checked indicating that the Veteran had no limitation of extension and indicating that the Veteran had extension limited to 10 degrees. Additionally, the report indicates that the Veteran had additional limitation of motion on repetitive use and that his functional loss on repetitive use consisted of less movement than normal, weakened movement, excess fatigability, and pain on movement. Moreover, the box is checked indicating that the Veteran had had a total knee replacement. The assessment also includes a number of findings pertaining to the Veteran’s lumbar spine. Given that the June 2012 range of motion findings are inconsistent with all the VA and QTC range of motion findings occurring both before and after June 2012; given that these June 2012 findings are not corroborated by any other medical evidence of record; and given that the June 2012 assessment contains an internal inconsistency (i.e. the two extension findings) and some erroneous history (i.e. that the Veteran had had a knee replacement) the Board must view the June 2012 assessment findings as isolated in nature and insufficient to justify assignment of a higher rating for the left knee for any subset of the appeal period. In sum, considering all pertinent rating criteria, a rating in excess of 10 percent for left knee disability is not warranted at any time during the appeal period. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel