Citation Nr: 18147127 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 08-19 660 DATE: November 2, 2018 ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to a rating in excess of 30 percent for gastroesophageal reflux disease (GERD) is denied. Entitlement to an effective date earlier than September 6, 2011 for an increased 30 percent rating for GERD is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 18, 2008, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that any left shoulder disability was incurred in or is related to service. 2. The preponderance of the evidence is against a finding that any left shoulder disability was incurred in or is related to service 3. Throughout the appeal period, the Veteran’s GERD has been manifested by no more than recurrent epigastric distress with dysphagia, and regurgitation, productive of considerable impairment of health. 4. VA received the Veteran’s claim for an increased rating for GERD on September 6, 2011 and the preponderance of the evidence is against a finding of an ascertainable increase in severity of the disability in the year prior to that date as the disability increased in severity more than one year prior to the date of claim for increase. 5. The preponderance of the competent and credible evidence of record is against a finding that the Veteran’s service-connected disabilities precluded him from securing and following substantially gainful employment prior to January 18, 2008. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for a rating in excess of 30 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. 4. The criteria for an earlier effective date than September 6, 2011 for the award of a 30 percent rating for GERD are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.400. 5. The criteria for entitlement to TDIU prior to January 18, 2008, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to August 1997. Service Connection 1. Entitlement to service connection for a bilateral shoulder disability 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. To establish a service connection for a disability, 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). The Veteran contends that current bilateral shoulder disabilities are related to service. Specifically, at a May 2009 hearing before the Regional Office (RO), the Veteran reported that he worked as a supply clerk during service, which included using his shoulders to pick up, and move supplies, including artillery. The Veteran stated he began having shoulder pain during service. The service medical records document multiple complaints of generalized joint pain and muscle ache. The Veteran was diagnosed with fibromyalgia during service. The Board notes that in a November 1996 service medical record, the Veteran complained of symptoms of joint pain in the knees, ankles, lower back, low neck, and wrists. The Veteran did not report shoulder pain at that time. However, in multiple service medical records, the Veteran was seen for ongoing treatment of fibromyalgia, including for complaints of pain in “all” joints. The Board notes that the Veteran has established service connection for fibromyalgia. In a general medical VA examination in February 1998, the Veteran reported joint popping, snapping, and crackling, and fatigability primarily in the knees, hips, and shoulders. The examiner noted that the Veteran was vague about the diagnosis of fibromyalgia in service. On examination, range of motion of the shoulders was normal. The examiner diagnosed multiple joint pain, which had been called fibromyalgia by history. VA medical records from March 1999 through April 2004 show repeated complaints of pain in multiple joints, stiffness, and spasms all over the body. All examiners during that time noted a history of fibromyalgia. On examination of the shoulders during that time, there was full range of motion, and muscle strength was normal. A January 2004 VA medical record indicated that extensive fibrosis in the areas of prior laminectomies seemed to be causing radiculopathy, with muscle pain. In a June 2004 VA examination for fibromyalgia, the Veteran reported he was diagnosed with fibromyalgia in 1996 or 1997. The examiner noted that the Veteran’s medical chart showed he was being worked up for fibromyalgia as early as 1993. Reported symptoms included stiffness and pain “all over,” including the shoulders, legs, knees, and hands. July 2005 VA medical records noted a history of multiple joint pain and muscular aches. The Veteran was complaining of increased right shoulder pain. An MRI of the right shoulder found mild osteoarthritis of the acromioclavicular (AC) joint. The MRI also found mild posterior subluxation of the right humeral head within the glenohumeral joint with an old posterior glenoid rim fracture and posterior-inferior labral tear with numerous small paralabral cysts; moderate subacromial/subdeltoid bursitis; and mild tendinopathy involving the supraspinatus tendon. In a November 2005 VA medical record, the examiner found that review of the MRI showed that the Veteran was developing impingement syndrome of the right shoulder. A July 2006 VA medical record shows complaints of increased left shoulder pain. The examiner noted a history of fibromyalgia, with diffuse pain throughout the body. An x-ray of the left shoulder was negative. In January 2007, the Veteran underwent a consultation for a 20-year history of bilateral shoulder pain. The examiner noted a history of fibromyalgia, and on examination, trigger points were present on both trapezius muscles. The examiner diagnosed polyarthritis and myofascial pain syndrome. October 2007 VA medical records note that x-rays showed minimal degenerative changes in the AC joint, and that MRIs showed moderate tendinosis involving the supraspinatus tendon. On examination, both shoulders had excellent range of motion and normal strength. At a September 2012 VA examination, the Veteran reported pain with numbness, burning, and locking in the shoulders. There was pain on movement and less movement than normal. There was no evidence of localized tenderness or pain on palpation of the shoulder joints. An x-ray of the shoulders found no acute radiological abnormalities. The x-ray found a dysplastic/hypoplastic glenoid, worse on the right. The examiner noted that anatomy was often associated with shoulder instability, and that laterally downsloping acromial processes may predispose the Veteran to rotator cuff impingement. The examiner diagnosed bilateral tendinopathy, and opined that it was less likely than not incurred in or related to service. The examiner reasoned that nothing in the service medical records indicated shoulder complaints outside those being reported as part of fibromyalgia. The examiner opined that the Veteran’s bilateral shoulder tendinopathy was more likely than not due to normal wear and tear over time in the process of aging, and a medical predisposition due to anatomic variants. At a June 2016 VA examination, the Veteran described injuring the shoulder while in service from a lifting accident. The Veteran reported he continued to have pain in the shoulder, especially with overhead reaching, lifting, pushing, and pulling. Range of motion of the shoulders was reduced, with some reduction in muscle strength. The examination found a rotator cuff condition present, with a positive Hawkins’ impingement test. There was tenderness to palpation of the AC joint. Imaging documented the presence of arthritis in the AC joints, bilaterally. The examiner diagnosed bilateral shoulder tendinopathy with degenerative joint disease. The examiner opined that the bilateral shoulder condition was less likely than not caused by or the result of service because the service medical records did not contain any complaints, treatment, or diagnoses for a shoulder condition, and because the Veteran was not diagnosed with tendinopathy with degenerative joint disease until years after leaving service. The examiner opined that it was more likely than not that the bilateral shoulder condition was a result of the normal wear and tear process associated with age-related changes. The examiner also opined that the service-connected fibromyalgia less likely than not aggravated the bilateral shoulder tendinopathy with degenerative joint disease, as there was insufficient evidence to suggest that. The Board finds that service connection for a bilateral shoulder disability is not warranted. While the record shows current bilateral shoulder tendinopathy with degenerative arthritis of AC joint, the preponderance of the evidence is against a finding of a nexus between the disabilities and qualifying active service. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The service medical records contain no evidence of an injury or event in which the Veteran injured either shoulder. While the service medical records indicate multiple complaints of joint pain, those complaints were found by the VA examiner to be all related to diagnosed and service-connected fibromyalgia. The Veteran was not diagnosed with the current tendinopathy with degenerative joint disease in the shoulders until years after service. Multiple VA examiners explicitly opined that the records did not support a relationship between service and current bilateral tendinopathy with degenerative joint disease. Further, the September 2016 VA examiner opined that the evidence did not support the contention that fibromyalgia may have aggravated the shoulder disabilities. The VA examiners reviewed the entire medical record, including the statements of the Veteran regarding the onset of shoulder symptomology, in coming to those opinions. However, those statements did not provide objective evidence that the Veteran’s cervical or lumbar spine disabilities were related to a back complaint in service, or a service-connected left shoulder disability. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board acknowledges the statements of the Veteran regarding the onset of the bilateral shoulder disabilities, and finds the Veteran competent to report symptoms, such as pain, as that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the issue in this case is outside the realm of common knowledge of a lay person, as a nexus is not obvious merely through observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the VA examination opinions to be the most probative and persuasive evidence of record. The VA examiners have medical training, and reviewed all the available medical records, including the Veteran’s statements about the onset of the shoulder disabilities. The Veteran has not submitted any contrary objective evidence suggesting that the shoulder disabilities were caused or aggravated by service. The evidence of record and supporting medical opinions suggest that the Veteran’s in-service complaints of shoulder pain were related to fibromyalgia, which has already been service-connected. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral shoulder disability, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating 2. Entitlement to a rating in excess of 30 percent for GERD Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Rating Schedule states that there are diseases of the digestive system which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding. 38 C.F.R. §§ 4.113, 4.114 (2017). The Rating Schedule prohibits Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, from being combined with each other. A single rating will be assigned under the Diagnostic Code that compensates the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 (2017). The Veteran’s GERD is rated as hiatal hernia under Diagnostic Code. Under Diagnostic Code 7346, a 60 percent rating is assigned where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health. A 30 percent rating is assigned where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. A 10 percent rating is assigned when two or more of the symptoms for the 30 percent rating are present with less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017). At a February 2010 Gulf War examination, the Veteran reported a history of diarrhea, constipation, and indigestion. The Veteran reported no history of regurgitation, fecal incontinence, hematemesis, or melena. June and August 2010 VA medical records note soft and tender abdomens, with complaints of constipation. At an October 2011 VA examination for GERD, the Veteran reported symptoms including persistently recurrent epigastric distress, dysphagia, reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance caused by reflux, transient nausea, and transient vomiting. There was no esophagal stricture, spasm, or diverticula. The Veteran had been managing symptoms with continuous medication, but reported that he had recently began throwing up again and feeling bloated. An esophagram and upper GI x-ray found an unremarkable abdomen, except for mild constipation. There was no oropharyngeal abnormality. At a June 2016 VA examination for GERD, the Veteran reported he continued to experience burning and dyspeptic symptoms, with occasional vomiting. Symptoms included persistently recurrent epigastric distress, pyrosis, reflux, substernal pain, sleep disturbance caused by reflux, nausea, and vomiting. VA medical records note a history of GERD, which was stable with continuous medication. The Board finds that a rating in excess of 30 percent for GERD is not warranted. Throughout the appeal period, the Veteran’s GERD has consistently manifested by recurrent reflux, substernal pain, sleep disturbance, nausea, and occasional regurgitation. At times, the Veteran has reported dysphagia. The Veteran has a history of constipation. The Veteran’s symptoms of esophageal distress have largely been controlled by medication throughout the appeal period. The Veteran’s general state of health has been noted as good. The Veteran’s nutrition is well-maintained and he has not experienced significant weight change. Further, the record does not show evidence of anemia, hematemesis or melena. The Board finds that the Veteran’s GERD did not rise to the level of severe impairment of health. Therefore, a rating in excess of 30 percent is not warranted under Diagnostic Code 7346 at any point during the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 30 percent at any time during the appeal period, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). Earlier Effective Date 3. Entitlement to an effective date prior to September 6, 2011, for an increased 30 percent rating for GERD The Veteran seeks an effective date earlier than September 6, 2011, for the assignment of an increased 30 percent rating for GERD. Except as otherwise provided, the effective date of a rating and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. With regard to the award of an increased rating for compensation, the effective date shall be the earliest date that it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The increase in disability must have occurred during the one year period prior to the date of the Veteran’s claim in order to receive the benefit of an earlier effective date. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). The Board has carefully reviewed the evidentiary record and finds that the evidence of record indicates an ascertainable increase in the severity of the Veteran’s GERD more than one year prior to the claim date of September 6, 2011. At a September 2009 VA examination, the Veteran reported recurrent epigastric distress in the form of substernal gnawing, burning, and pain several times a week for a few minutes to all day, relieved by having a bowel movement. The Veteran reported daily nausea. There was evidence of abdominal tenderness on examination. There were no episodes of hematemesis or melena. There was no history of vomiting or diarrhea. There were no episodes of abdominal colic, nausea, vomiting, or abdominal distention. There were no signs of significant weight loss or malnutrition. There were no signs of anemia. There was abdominal tenderness. The Veteran stated he got in a bad mood with the pain and when the pain was bad he had to rest. At a February 2010 Gulf War examination, the Veteran reported a history of diarrhea, constipation, and indigestion. At an October 22, 2011, VA examination the Veteran reported symptoms including persistently recurrent epigastric distress, dysphagia, reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance caused by reflux, transient nausea, and transient vomiting. There was no esophagal stricture, spasm, or diverticula. The Veteran had been managing symptoms with continuous medication, but reported that he had recently began throwing up again and feeling bloated. An esophagram and upper GI x-ray found an unremarkable abdomen, except for mild constipation. There was no oropharyngeal abnormality. A claim for increase was filed on September 6, 2011. The Board finds that the medical records do not establish an ascertainable increase in the Veteran’s GERD in the one year prior to the claim date of September 6, 2011. Prior to that time, GERD resulted in substernal pain, persistently recurrent epigastric distress, and substernal pain. However, the evidence does not show regurgitation in the year prior to September 2011. That was found at the October 2011 VA examination. Furthermore, the evidence does not show considerable impairment of health prior to September 2011 due to GERD. The evidence of record does not shows a factually ascertainable increase in the severity of GERD in the year prior to the receipt of the claim for increase and the Board finds that earlier effective date than September 6, 2011, is not warranted. The preponderance of the evidence is against the assignment of any earlier effective date and the claim must be denied. TDIU 4. Entitlement to TDIU on an extraschedular basis prior to January 18, 2008 Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). The Veteran has been awarded TDIU effective January 18, 2008. The Veteran contends that he is entitled to TDIU prior to January 18, 2008, on an extraschedular basis. Prior to January 18, 2008, the Veteran’s service-connected disabilities were fibromyalgia, GERD, lumbar spine degenerative arthritis, right ankle disability, radiculopathy of the lower extremities, left hydrocelectomy, and tinea versicolor. The Veteran’s combined service-connected disability rating did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) prior to January 18, 2008. Nevertheless, a Veteran may be entitled to a TDIU if it is established that he is unable to secure or follow substantially gainful employment as a result of the effects of the service-connected disabilities. 38 C.F.R. § 4.16(b) (2017). Therefore, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment, or work that is more than marginal, which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2017). In making the determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19 (2017). The Board referred the appeal to the Director, Compensation Service. In a June 2018 Advisory Opinion, the Director denied entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b), and the RO continued the denial in a supplemental statement of the case dated in June 2018. The Board notes that the Director’s decision is not evidence, but an Agency of Original Jurisdiction decision, and the Board must conduct de novo review of that decision on appeal. Wages v. McDonald, 27 Vet. App. 233 (2015). Throughout the relevant appeal period, the evidence of record does not show factors outside the norm resulting in unemployability. During the appeal period, the Veteran has not shown that his service-connected disabilities have significantly hindered his ability to maintain some form of gainful employment. VA obtained an opinion regarding that issue specifically, and in June 2016, a VA examiner explicitly found that the Veteran’s service-connected disabilities prior to January 2008 would prevent physical employment, but did not prevent sedentary employment. In fact, reports of contact by a rehabilitation counselor noted that the Veteran continued to work many hours at his job in September 2008. The evidence of record does not show that the Veteran was unable to obtain or retain employment prior to January 2008 solely due to service-connected disabilities. The Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent the service-connected disabilities affect the Veteran’s employment, the assigned schedular ratings for the disabilities compensate the Veteran for that impairment. Therefore, as the Veteran has not provided any competent and credible evidence that his service-connected disabilities, either singly or combined, prevent him from securing or following any substantially gainful employment, the claim is denied. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel