Citation Nr: 18149412
Decision Date: 11/09/18	Archive Date: 11/09/18

DOCKET NO. 16-40 740
DATE:	November 9, 2018
ORDER
New and material evidence has been received and the claim for service connection for a psychiatric disorder to include depression is reopened.  
New and material evidence has been received and the claim for service connection for posttraumatic stress disorder (PTSD) is reopened.  
Entitlement to service connection for a left great toe disability is denied. 
Entitlement to service connection for a right hip disability is denied. 
Entitlement to service connection for PTSD is denied. 
Entitlement to service connection for depressive disorder is granted.  
Entitlement to a disability evaluation in excess of 20 percent for bicipital tendonitis of the left shoulder is denied.   
Entitlement to a disability evaluation in excess of 10 percent for a left wrist disability is denied. 
A timely substantive appeal was not filed as to the October 4, 2013 statement of the case, and the appeal is denied. 
FINDINGS OF FACT
1. In a July 2001 rating decision, service connection for PTSD was denied.     
2. Evidence received since the July 2001 rating decision is new and non-cumulative and it relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD.      
3. In a January 2010 rating decision, service connection for depression was denied.     
4. Evidence received since the January 2010 rating decision is new and non-cumulative and it relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for depression.  
5. The Veteran does not meet the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV or DSM 5) criteria for a diagnosis of PTSD.
6. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s depressive disorder is aggravated by the service-connected disabilities. 
7. The left great toe disability, to include osteoarthritis, was not manifested in active service, is not related to disease or injury or other event in active service, and first manifested many years after active service.   
8. The right hip disability was not manifested in active service, is not related to disease or injury or other event in active service, first manifested many years after active service, and is not proximately due to or aggravated by a service-connected disability to include the lumbar spine disability.  
9. The service-connected bicipital tendonitis of the left (minor) shoulder is manifested by limitation of the arm of greater than 25 degrees from the side even when considering pain and other functional limitation and is not manifested by ankylosis or impairment of the humerus. 
10. For the entire period on appeal, the service-connected left (minor) wrist disability is not manifested by ankylosis.  
11. The Veteran did not file a substantive appeal setting out arguments relating to errors of fact or law within 60 days of the date on which the October 4, 2013 statement of the case was sent to him.
12. The Veteran did not submit a request for an extension of the time limit for filing the substantive appeal prior to the expiration of the time limit for filing the appeal or at the time she submitted the substantive appeal.   
CONCLUSIONS OF LAW
1. The criteria to reopen the claim of service connection for PTSD have been met.  38 U.S.C. §§ 5108, 7104(b), 7105(c) (2012); 38 C.F.R. §§ 3.102, 3.156(a) (2018).
2. The criteria to reopen the claim of service connection for depression have been met.  38 U.S.C. §§ 5108, 7104(b), 7105(c) (2012); 38 C.F.R. §§ 3.102, 3.156(a) (2018).
3. The criteria for service connection for PTSD have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018).
4. The criteria for service connection for depressive disorder have been met.  38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018).
5. The criteria for service connection for a left great toe disability are not met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).  
6. The criteria for service connection for a right hip disability are not met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).
7. The criteria for a rating in excess of 20 percent for the service-connected bicipital tendonitis of the left shoulder have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5201 (2018).
8. The criteria for a disability rating in excess of 10 percent for the left wrist disability have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5214, 5215 (2018). 
9. A timely substantive appeal was not filed as to the October 4, 2013 statement of the case that denied entitlement to higher disability ratings for the left shoulder and the left wrist disabilities.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.302(b), 20.303, 20.305 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from September 1988 to July 1991.  This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in December 2013, March 2014, and January 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In March 2016, the Veteran submitted a waiver of agency of original jurisdiction (AOJ) consideration of new evidence pursuant to 38 C.F.R. 20.1304 (2018).  
In July 2015, the Board remanded the issues of entitlement to service connection for a bladder disorder, an increased rating for the lumbar spine disability and entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) to the AOJ for additional development.  These matters have not been recertified and transferred to the Board, and consequently will be the subject of a later Board decision.

   
1. New and Material Evidence
Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303 (d) (2018).
In order to establish service connection for the claimed disorder, generally, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999). 
Rating actions from which an appeal is not perfected become final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.  The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200. 
In order to reopen a claim which has been denied by a final decision, new and material evidence must be received.  38 U.S.C. § 5108.
New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a). 
To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 
For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 
The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record.  See Hickson v. West, 12 Vet. App. 247, 251 (1999). 
In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156 (a) created a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  Further, 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. 
2. New and material evidence has been received and the claims for service connection for PTSD and depression are reopened.
In a July 2001 rating decision, service connection for PTSD was denied on the basis that the Veteran did not have a current diagnosis of PTSD and a verified stressor event.  The Veteran was notified of the decision and he filed a notice of disagreement in July 2001.  A statement of the case was issued in November 2008.  The Veteran did not file a substantive appeal.  The July 2001 rating decision is final. 
The evidence of record at the time of the July 2001 decision included service treatment records, a December 1997 VA psychiatric examination report, a May 2001 VA letter requesting stressor information, and VA treatment records dated from January 1995 to January 2001.   
Evidence received since July 2001 is new and non-cumulative and it relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD.      
In February 2013, the Veteran applied to reopen his previously denied claim for service connection for PTSD.  The additional evidence received in support of his claim includes a December 2012 VA mental health treatment record that indicates that the Veteran had chronic PTSD related to military sexual trauma and scuds blowing up while in Saudi Arabia. 
The Board concludes there is sufficient evidentiary basis to reopen the Veteran’s claim on appeal.  This evidence is new since this evidence is neither cumulative nor redundant of the evidence that was of record in July 2001.  This evidence is also material because this medical evidence could reasonably substantiate the claim because this evidence relates the diagnosis of PTSD to a stressor event in active service.  This evidence triggers VA’s duty to assist to afford the Veteran a VA examination to obtain evidence as to whether the Veteran currently has PTSD in accordance with the DSM due to a verified stressor event.  Thus, the Board finds that this evidence is new and material and the claim for service connection for PTSD is reopened.  This issue is addressed below.   
In a January 2010 rating decision, service connection for depression was denied on the basis that there was no evidence of this disability in active service or a relationship to a service-connected disability.  The Veteran was notified of the decision and he filed a notice of disagreement in October 2010.  A statement of the case was issued in April 2011.  The Veteran did not file a substantive appeal.  The January 2010 rating decision is final. 
The evidence of record at the time of the January 2010 decision included service treatment records, a VA psychiatric examination report dated in December 1997, and VA treatment records dated from January 1995 to December 2009.   
Evidence received since January 2010 is new and non-cumulative and it relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for depression.      
In February 2013, the Veteran applied to reopen his previously denied claim for service connection for depression.  The additional evidence received in support of his claim includes a March 2016 VA medical opinion which indicates that the depression was at least as likely as not aggravated beyond its natural progression by chronic pain related to the Veteran’s service-connected disabilities.  
The Board concludes there is sufficient evidentiary basis to reopen the Veteran’s claim on appeal.  This evidence is new since this evidence is neither cumulative nor redundant of the evidence that was of record in July 2010.  This evidence is also material because this medical evidence could reasonably substantiate the claim because this evidence provides evidence that the depression is aggravated by a service-connected disability and this supports a grant of service connection on the basis of secondary service connection.  Thus, the Board finds that this evidence is new and material and the claim for service connection for depression is reopened.  This issue is addressed below.   
3. Service Connection
In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during service or, if pre-existing active service, was aggravated therein.  38 U.S.C. §§ 1110, 1131.  Service connection may also be granted for a disability initially diagnosed after service when all of the evidence shows it to have been incurred in service.  38 C.F.R. § 3.303 (d) (2018).  Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis or an organic disease of the nervous system become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  
38 C.F.R. § 3.303 (b) applies to the “chronic diseases” under 38 C.F.R. § 3.309 (a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
Service connection can be granted for a disability that is proximately due to or the result of by a service-connected disability.  38 C.F.R. 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. 3.310 (a). 
Service connection can be granted for a disability that is aggravated by a service-connected disability.  Compensation can be paid for any additional impairment resulting from the service-connected disability.  38 C.F.R. 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  Except as provided in 38 C.F.R. 3.300 (c) (claims for secondary service connection based on the effects of tobacco products received after June 9, 1998), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. 3.310 (a). 
Any increase in severity of a nonservice-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.  38 C.F.R. 3.310 (b).
Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence.  38 U.S.C. § 7104(a).  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3.
4. Entitlement to service connection for PTSD is denied. 
Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f) (2015). 
The ordinary meaning of the phrase “engaged in combat with the enemy,” as used in 38 U.S.C. § 1154 (b) (2012), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis.  See VAOPGCPREC 12-99 (October 18, 1999).
If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304 (f)(3) (2018). 
In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran’s assertion that the stressful event occurred. A stressor need not be corroborated in every detail.  Suozzi v. Brown, 10 Vet. App. 307, 311 (1997).  Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors.  Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996).
38 C.F.R. § 4.125 requires PTSD diagnoses to conform to the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV) as the governing criteria for diagnosing PTSD.  Parenthetically, the Board notes VA implemented DSM 5, effective August 4, 2014 and DSM 5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). 
The weight of the competent and credible evidence shows that the Veteran does not have a current diagnosis of PTSD in accordance with DSM.  A VA psychiatric examination was conducted in November 2013 to obtain medical evidence as to the Veteran’s current DSM diagnoses and evidence as to whether the Veteran had a current diagnosis of PTSD.  The VA examiner, a clinical psychologist, concluded that the Veteran did not meet the DSM-IV clinical criteria for a diagnosis of PTSD. The VA examiner stated that the Veteran did not meet Criterion A.  See DSM-IV. The VA examiner stated that the Axis I diagnosis was depression disorder, not otherwise specified.  The VA examiner further noted that the MMPI-2 was likely invalid and the PCLM score was high and these scores are frequently associated with exaggeration of symptoms, i.e. reporting more symptoms than likely exist in an objective sense.  The VA examiner stated that therefore, the results of the tests were not used in arriving at this opinion.  The VA examiner further noted that interestingly, in light of the high PCLM score, on interview, the Veteran provided very few PTSD symptoms.  The Veteran indicated that she has a positive startle response and difficulty sleeping although she indicated that she no longer had any nightmares.  The VA examiner further stated that the Veteran does not meet the diagnostic criteria for PTSD according to the DSM-IV treatment as well as the DSM-IV.  It was noted that the Veteran’s trauma stressor cannot be confirmed, and further complicating this PTSD claim is that she does not present with PTSD symptoms and she is also claimed to have been raped multiple times throughout her life, so many times that she could not count.
A VA psychiatric examination was conducted in February 2016 to obtain medical evidence as to the Veteran’s current DSM-5 diagnoses.  The VA examiner, a psychiatrist, concluded that the Veteran met the DSM-5 clinical criteria for a diagnosis of unspecified depressive disorder and that was the Veteran’s only mental disorder.  A diagnosis of PTSD was not made.  
As discussed above, 38 C.F.R. § 4.125 requires PTSD diagnoses to conform to DSM-IV as the governing criteria for diagnosing PTSD. VA implemented DSM-5 effective August 4, 2014 and DSM-5 applies to claims certified to the Board on or after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014).  In this case, the RO certified the Veteran’s appeal to the Board in September 2016 and therefore, DSM-5 is the governing directive.
The Board notes that the diagnostic criteria for PTSD under DSM-5 (particularly as it relates to Criterion A) are less stringent that the diagnostic criteria for PTSD under DSM-IV.  DSM-5, in pertinent part, removed the requirement under Criterion A that the person experience fear, helplessness, or horror right after the traumatic event because there was concern that certain individuals who were trained not to respond to traumatic events might have failed to meet this criterion.  The removal of this requirement for Criterion A makes it easier to meet the diagnostic criteria for PTSD under DSM-5 than under DSM-IV.  See DSM-IV and DSM-5. 
DSM-5 also sets forth four distinct diagnostic clusters for PTSD instead of the three set forth in DSM-IV (re-experiencing, avoidance, and arousal).  In DSM-5, the four diagnostic clusters are described as re-experiencing, avoidance, negative cognitions and mood, and arousal.  See DSM-IV and DSM-5. 
In the present case, the Board notes that the November 2013 VA examiner considered the more stringent diagnostic criteria for PTSD under DSM-IV.  The November 2013 VA examiner found that the Veteran did not have exposure to a traumatic event.  Thus, Criterion A for a PTSD diagnosis was not met under both the more stringent criteria under DSM-IV or the less stringent criteria under DSM-5.  The less stringent criteria of DSM-5 still requires exposure to a traumatic event.  The VA examiner determined that this criterion had not been met for a diagnosis of PTSD in the Veteran’s case.  The diagnostic criteria for PTSD are not met under DSM-5 upon VA examination in February 2016.  
Review of the record shows that there are VA mental health treatment records showing a diagnosis of PTSD.  As noted, a December 2012 VA mental health treatment record that indicates that the Veteran had chronic PTSD related to military sexual trauma and scuds blowing up while in Saudi Arabia. 
The Board finds that the probative value of the November 2013 and February 2016 VA examination reports outweigh that of the VA mental health assessments and treatment.  The VA examinations were conducted by a psychologist and a psychiatrist, and were based upon a comprehensive examination of the Veteran and review of the medical history.  The November 2013 VA examiner specifically considered the DSM-IV criteria for a diagnosis of PTSD and other mental disorders.  The February 2016 VA examiner specifically considered the DSM-5 criteria for a diagnosis of mental disorders.  The Board notes that the examiners provided a rationale which supported the opinions.  Factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The medical opinions are based on sufficient facts and data.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
The Board notes that the December 2012 VA mental health treatment record and the additional mental health treatment records show that the health care providers did not set forth a discussion of the DSM-IV or DSM-5 criteria.  The December 2012 VA mental health treatment provider indicates that the diagnosis of PTSD was per the Veteran.  
The Board finds that the November 2013 and February 2016 VA examinations were more in depth and comprehensive.  The examiners assessed the Veteran’s claimed symptoms in accordance with the correct diagnostic criteria and these factors lend more probative value to the VA examiners’ opinions on the matter of whether the Veteran has PTSD.  
The Veteran’s own implied assertions that she had PTSD due to events in service are afforded limited if no probative weight in the absence of a showing that the Veteran has the expertise to render opinions about medical matters.  The Veteran, as a lay person, is competent to describe observable symptoms.  Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); as to the specific issue in this case, an opinion as to a psychiatric diagnosis in accordance with DSM, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Some medical issues, such as providing psychiatric diagnoses, require specialized training, and are therefore not susceptible of lay opinions on etiology.  There is no evidence showing that the Veteran has medical expertise and she is not competent to provide any medical or psychiatric diagnoses or medical opinions.
The weight of the evidence shows that the Veteran does not have a current diagnosis of PTSD.  The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability.  “In the absence of proof of a present disability, there can be no valid claim.”  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded.  See Brammer, supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). 
The preponderance of the evidence establishes that the Veteran does not have a current diagnosis of PTSD.  Accordingly, on this record, service connection for PTSD is not warranted.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  The appeal is denied.
5. Entitlement to service connection for depressive disorder is granted. 
Based upon a review of the record, the Board finds that service connection for depressive disorder is warranted because the evidence demonstrates that the depressive disorder is aggravated by the chronic pain caused by the service-connected lumbar spine disability and knee disabilities.  
The March 2016 VA psychiatric examination report shows a diagnosis of unspecified depressive disorder.  The VA examiner opined that the unspecified depressive disorder was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition.  The VA examiner stated that the Veteran has multiple factors contributing to her depressive symptoms and these include the childhood sexual assault, adult sexual assault, chronic pain and post-partum depressive symptoms.  However, the VA examiner opined that the course of the Veteran’s depressive illness is worsened by stressors, such as the chronic pain related to the Veteran’s service-connected disabilities.
The record shows that service connection is in effect for fracture of L1 of the lumbar spine rated at 20 percent, bicipital tendonitis of the left shoulder rated at 20 percent, right and left knee strain each rated at 10 percent, and a left wrist disability rated at 10 percent.  The record shows that the Veteran has consistently received medical treatment for chronic pain due to the service-connected disabilities.  VA treatment records document chronic pain since the 1990’s.  VA mental health treatment records dated in 1995 document depression and chronic pain.  A VA examination report dated in November 1999 indicates that the Veteran had daily pain in the lumbar spine and left wrist.  She described the left wrist pain as excruciating.  It was noted that pain was the main limitation of motion for the left wrist and lumbar spine.  The VA examiner noted that the Veteran was on strong medication such as Demerol, Motrin, and Norgestic Forte.  The Veteran reported that these medications gave mild to moderate relief.  An October 2001 statement by a VA rheumatologist noted the Veteran’s history of chronic pain; the Veteran underwent a chronic pain evaluation at VA at that time for left wrist and left shoulder pain.  A June 2003 VA examination report indicates that the fracture of L1 caused chronic pain and the diagnosis was status post fracture of L1 with residuals of pain and limited movement.  In a December 2004 statement, the Chief of the Atlanta VA Medical Center PM&R service indicates that the Veteran had chronic back pain and myositis with pain and chronic pain was often associated with depression.  See also the November 2008 VA examination report (complaints of low back and left shoulder pain); the November 2009 VA examination report (findings of left and right knee and left shoulder pain with range of motion); April 2010 VA treatment record (that the Veteran underwent an a injection to treat the left shoulder pain); October 2010 VA treatment records (the Veteran has back and knee pain and was followed by PM&R and was taking Tramadol and Lortab); the February 2012 VA examination report (the functional impairment of the left shoulder included pain on movement); a May 2013 VA pain consult record (indicates that the Veteran had undergone 7 or 8 epidural injections to treat the low back pain); the August 2014 VA examination report (indicates that the functional impairment of the left shoulder included less movement than normal, weakened movement, excess fatigability, and pain on movement and there was localized tenderness and pain to palpation of the left shoulder area, and the functional impairment of the left shoulder included pain on movement); and the September 2016 VA examination report (indicates that the Veteran had low back pain that causes functional loss).  
Based on this information, the Board finds that the evidence is, at the very least, in equipoise as to whether the Veteran’s depressive disorder is aggravated by the service-connected lumbar spine disability, the left and right knee disabilities, the left shoulder disability and the left wrist disability.  Therefore, resolving reasonable doubt in the Veteran’s favor, service connection for depressive disorder is warranted.  As the Board is granting the claim on a secondary theory of entitlement, no discussion of whether service connection is warranted on a separate theory is necessary. 
6. Entitlement to service connection for a left great toe disability and a right hip disability is denied. 
There is competent and credible evidence of current diagnoses of a left great toe disability and a right hip disability.  The November 2013 VA examination report shows a diagnosis of mild osteoarthritis of the first metatarsal phalangeal joint of the left foot and mild osteoarthritis of the right hip.  A January 2004 VA treatment record shows a diagnosis of right greater trochanter bursitis.  A July 2005 right hip x-ray exam showed mild arthritis.  
The Board finds that while there is evidence of a current diagnosis of left great toe and right hip disabilities, the preponderance of the evidence weighs against finding that these disabilities began during service or are otherwise related to an injury, event, or disease in active service, or are due to or aggravated by a service-connected disability.  
Service treatment records document treatment for a left great toe injury in active service.  A February 1989 service treatment record indicates that the Veteran sought medical treatment for the left foot after dropping a table from four feet on the foot.  The Veteran reported having pain and swelling; she had pain over the first metatarsal.  X-ray exam was negative.  Physical exam revealed mild edema and full range of motion.  Neuro-vascular was intact.  The diagnosis was contusion of the left foot.  A March 1989 report of medical history indicates that the Veteran denied having foot trouble.  
Service treatment records do not document complaints or diagnosis of a right hip disability.  Service treatment records show that the Veteran sustained a low back disability in active service in February 1991; the assessment was compression fracture of L1.  The May 1991 Physical Evaluation Board (PEB) report indicates that the Veteran was unfit for duty due to the L1 compression fracture.  The report indicates that the Veteran had complaints of low back pain and right lower extremity weakness.  Physical examination revealed limited range of motion of the lumbar spine.  Gait was normal.  Motor strength was 4/5 in the right quadriceps and hamstrings.  Deep tendon reflexes were symmetrical and downgoing.  The PEB report does not document a diagnosis of a right hip disability.  The Veteran separated from active service in July 1991.  
The evidence of record does not establish a diagnosis of osteoarthritis of the left great toe or right hip within one year of service separation.  Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.307(a) is not warranted.   
The Board also finds that the Veteran did not experience continuous symptoms of a left great toe and right hip disability in active service or since service separation.  As discussed in detail below, the weight of the competent and credible evidence establishes that the current disabilities are not related to the injury in active service or to a service-connected disability.  Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.303 (b) is not warranted.
The Board finds that the weight of the competent and credible evidence establishes that the Veteran’s left great toe disability to include osteoarthritis first manifested many years after service separation, and is not caused by or otherwise related to her active military service.  The Veteran was afforded a VA examination of the left great toe in November 2013.  The VA examiner reviewed the service treatment records and indicated that service treatment records dated February 2, 1989 and February 3, 1989 show that the Veteran was seen after dropping a table on her left foot with laceration to great toe.  The February 2, 1989 record indicates that the Veteran went to the emergency room status post trauma to left distal foot pain over dorsal first metatarsal.  X-ray exam was negative.  The diagnosis was contusion of the left foot.  The February 3, 1989 service treatment record indicates that the Veteran had complaints of trauma to the left foot.  She was placed on light duty for 7 days.  Exam revealed discolored left great toe on the anterior aspect of the foot and 1/4 laceration, superficial, on the proximal interphalangeal of the great toe.  There was full range of motion and neurologic, sensory, and motor exam was intact.
The VA examiner noted that private medical records do not show treatment for the left great toe.  The VA examiner noted that VA records from Atlanta VA Medical Center (VAMC) note that x-ray exam of feet in November 1994 was normal; the electronic Atlanta VAMC records show that the Veteran stubbed her toe on December 26, 2001.  The Veteran was seen again for left great toe pain in January 2006, and Orlando VAMC records first refer to left big toe pain in January 2013.   
The VA examiner opined that it was not at least as likely as not (50 percent or greater probability) that the Veteran’s current left big toe disability was incurred in service or was caused by injury to left great toe that occurred February 1989.  The VA examiner indicated that the rationale for the opinion was that there was no objective medical evidence of a chronic left big toe disability related to left foot contusion while on active duty.  
The Board finds the November 2013 VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record.  The VA examiner reviewed the claims folder and the Veteran’s medical history including the service treatment records showing treatment for the foot injury in question, considered the Veteran’s report of symptoms and onset of the claimed disorder, and examined the Veteran before rendering the medical opinion.  Factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The medical opinion is based on sufficient facts and data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The VA examiner has the skill and expertise to analyze the medical evidence and render an opinion as to the etiology of arthritis or other orthopedic disorders.  See Black v. Brown, 10 Vet. App. 279, 284 (1997).
The record shows that the arthritis of the left great toe was first detected in 2010, 19 years after separation from service.  As noted in the November 2013 VA examination report, a December 1994 foot x-ray was normal.  A May 1997 x-ray showed a questionable small plantar spur on the left foot and no arthritis.  An August 2001 VA podiatry record shows a diagnosis of plantar fascitis left.  A January 2006 VA treatment record indicates that the Veteran complained of left great toe pain off and on since 1989 when she dropped a saw on her foot while in the military.  A November 2009 VA examination revealed normal gait and exam of the feet did not reveal any signs of abnormal weightbearing or breakdown, callosities, or unusual shoe wear pattern.  An October 2010 VA record shows an assessment of foot pain due to degenerative joint disease.  A July 2012 VA treatment record shows a diagnosis of degenerative joint disease and the record notes left foot pain status post an injury 1 year ago.  With respect to negative evidence, the fact that there were no records of any complaints, treatment, or diagnosis of the claimed disability for many years after service separation weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
The Veteran contends that service connection is warranted for the left great toe disability due to the injury in service.  The Veteran and other lay persons are competent to describe a firsthand event such as an injury and to describe observable symptoms such as pain.  See Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  
The Board finds that the Veteran’s statements as to the injury and pain are competent and have credibility.  However, the Veteran, as a layperson, does not have the medical expertise to opine as to the etiology of an orthopedic disability or relate a disability to a specific injury.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Thus, the Veteran’s opinion that her left great toe disability was caused by the injury in service is not a competent medical opinion and is not afforded significant probative weight.  As such, the medical findings and opinion of the VA examiner warrants greater probative weight than the Veteran’s lay contentions.  Neither the Veteran nor her representative has identified or produced competent evidence that related this disorder to active service. There is no competent evidence to establish a nexus between the left great toe disability and any documented event or injury of active service.  
Accordingly, on this record, the evidence is found to preponderate against the claim for service connection for the left great toe disability.  Therefore, service connection is denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
Regarding the right hip disability, the Board finds that based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the current right hip disability is not proximately due to or aggravated by a service-connected lumbar spine disability, and is not related to injury or event in active service.  
The Veteran was afforded a VA examination in November 2013 at which the VA examiner was asked to examine any possible relationship between the Veteran’s right hip disability and the service-connected lumbar spine disability.  
The November 2013 VA examiner opined that the right hip disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected lumbar spine disability.  The diagnosis was mild osteoarthritis of the right hip.  The VA examiner opined that is less likely as not (less than 50/50 probability) that the current right hip disability was caused by or a result of the lumbar L1 fracture in active service or was incurred in or caused by the right hip weakness that occurred February 1991.  The VA examiner’s rationale for the opinion was that the Veteran’s right hip condition was classified as radiating pain from her back, radicular pain, and the right hip joint is and was not involved.  
The VA examiner stated that the service treatment records dated in February 1991 indicate that the Veteran complained of dragging the right leg secondary to weakness from right hip.  The Veteran was also seen on January 8, 1990 for complaints of right leg pain.  The VA examiner noted that private medical records from C.R. Orthopedics show that the Veteran was treated for right hip trochanteric bursitis, sacroiliac dysfunction, from April 2009 to July 2009.  The VA examiner noted that VA records from the Atlanta VAMC show complaints of pain across the right hip on January 2, 1992.  It was noted that Atlanta VAMC records note ongoing back pain with complaints of it radiating to the hips (see the September 25, 2001 electronic record).  Orlando VAMC records also noted similar complaints in January 1992; the record indicates that the Veteran had status post lumbar compression diagnosed February 11, 1991 in Gulf and the Veteran now has pain across her hips (upper buttocks), and the pain is similar to pain in February 1991. The diagnosis was status post L1 compression.  The VA examiner cited to treatment for right hip pain in April 2009 (complaints of right hip pain that radiates to the right knee with an onset of injury in 1991); in June 2009 (followup status post right hip trochanteric bursitis with worsening pain in the right buttock, with an impression of low back pain, degenerative scoliosis, sacroiliac dysfunction).  The VA examiner reviewed the July 2009 MRI of the lumbar spine which showed an impression of mild degenerative disc disease at L4-5 with mild broad based right sided foraminal/lateral disk bulge/herniation which contacts the exiting right L4 nerve root; mild degenerative disc disease at L2-3 with mild central stenosis; mild posteriolisthesis of L2 on L3 unassociated with spondylolysis; and left sided posterolateral annular tear L2-3 unassociated with focal disk herniation.  The VA examiner stated that currently, the Veteran stated that she had constant pain in the right hip; the pain is located over the right sacroiliac joint and will radiate laterally to the hip and down the front of the thigh to above the knee.  
The Board finds the November 2013 VA medical opinion that the right hip disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected lumbar spine disability to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record.  The VA examiner reviewed the claims folder and the Veteran’s medical history including the service treatment records, considered the Veteran’s report of symptoms and onset of the claimed disorder, and examined the Veteran before rendering the medical opinion.  The VA examiner cited to the facts that support the opinion.  The medical opinion is based on sufficient facts and data.  Nieves-Rodriguez; supra.  The VA examiner has the skill and expertise to analyze the medical evidence and render an opinion as to the etiology of arthritis or other orthopedic disorders.  See Black; supra.  
The Veteran contends that service connection is warranted for the right hip disability and asserts that it is caused by the service-connected lumbar spine disability.  However, as a layperson, the Veteran does not have the medical expertise to opine as to the etiology of an orthopedic disability.  See Kahana; supra.  Thus, the Veteran’s opinion about the etiology of the right hip disability is not a competent medical opinion and is not afforded significant probative weight.  As such, the medical findings and opinion of the VA examiner warrants greater probative weight than the Veteran’s lay contentions.  Neither the Veteran nor her representative has identified or produced competent evidence that related this disorder to active service. There is no competent evidence to establish a nexus between the right hip disability and any documented event or injury of active service or a service-connected disability.  
The Board notes that the medical evidence of record establishes that the service-connected lumbar spine disability causes pain that radiates down the right lower extremity.  There is competent evidence which indicates that the Veteran may have a separate right lower extremity neurologic disability or manifestations due to the service-connected lumbar spine disability.  The May 1991 PEB report indicates that motor strength was 4/5 in the right quadriceps and hamstring and straight leg raise was performed without pain or radiating pain.  An August 1995 VA orthopedic examination report indicates that the diagnosis was low back pain syndrome post traumatic and hip pathology not found clinically.  A September 1995 VA treatment record notes that the Veteran reported having bilateral hip pain and low back pain.  The assessment was no orthopedic pathology found that the Veteran was referred for lumbar spine strengthening exercises.  An April 2000 VA treatment record indicates that a trigger point on paraspinal muscles at S1 level is causing radiating pain to both hips.  A September 2001 VA treatment record indicates that the Veteran had bilateral hip pain and chronic low back pain/leg pain after low back injury.  There was full range of motion of the hips.  The examiner noted that there was nothing on exam to indicate fibromyalgia or rheumatoid arthritis, and the Veteran’s arthralgias are secondary to mechanical injury and should respond well to NSAIDs, and education regarding lifting/movement, etc.  The June 2003 VA examination report indicates that the fracture of L1 causes chronic pain and the pain travels to both hips.  Physical exam revealed mild right foot drag, and radiating pain from the back on movement.  There was negative straight leg raise on the right and left and no signs of radiculopathy present.  The diagnosis was status post fracture of L1 with residuals of pain and limited movement.  
The November 2008 VA examination report indicates that the Veteran reported having pain that radiates down the right leg on a daily basis.  It was noted that she has pain in the upper part of the back that radiates down to the right buttock and down the back of the thigh to the right knee.  The assessment was lumbar spine L1 fracture.  A July 2001 VA treatment record indicates that the Veteran had some weakness right quadriceps.  The assessment was right radiculopathy.  A November 2011 VA examination report indicates that the VA examiner stated that the Veteran’s lumbar MRI does not show major nerve destruction that would cause neurogenic bladder bowel incontinence, irritable bowel syndrome, or hip, thigh, or right knee radiating pain.  A December 2011 VA treatment record indicates that the Veteran had right hip pain. On exam, range of motion was normal and strength 4/5.  The examiner indicated that the hip pain is likely back related.  A February 2012 VA examination report indicates that radiculopathy or signs of radicular symptoms were not shown on exam.  An October 2012 VA treatment record notes an assessment of low back pain with right sciatica.  
As noted, service connection is in effect for fracture of L1 with limitation of motion of the lumbar spine and a 20 percent rating is currently assigned under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a (2018).  The general rating formula contemplates symptoms of pain whether or not the pain radiates.  Id.  Note 1 provides for the evaluation of any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Id.  The issue of entitlement to a higher disability rating for the lumbar spine disability to include whether a separate rating is warranted for neurologic manifestations was remanded to the AOJ for additional development and this issue has not yet been returned to the Board.  Thus the issue of whether a separate rating is warranted for sciatica or radiculopathy of the right lower extremity is not currently before the Board at this time and is part of the appeal that is still at the AOJ.      
The Board finds the weight of the competent and credible evidence shows that the current right hip arthritis and bursitis did not manifest in service, first manifested over a decade after active service, and are not related to active service.  Again, the Board finds that the Veteran’s own assertions that the right hip arthritis and bursitis are related to the service-connected lumbar spine disability are afforded no probative weight in the absence of evidence that she has the expertise to render opinions about medical matters.  The record in this case is negative for any indication that the right hip arthritis and bursitis are associated to the service-connected lumbar spine disability or are associated to service.  The Veteran did not provide sufficient lay or medical evidence of the disabilities in active service or symptoms or disease in active service.  The service treatment records do not document right hip arthritis and bursitis.  
In light of the above, the Board finds that the preponderance of the evidence is against a finding that the right hip arthritis and bursitis are related to service or are caused or aggravated by a service-connected disability.  As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  The claim for service connection for a right hip disability to include arthritis and bursitis is denied. 
7. Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21. 
Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. 
In deciding an appeal, VA must consider whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran’s appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 
The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45. 
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (Court) held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment.  The Court 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, or incoordination.  Such inquiry was not to be limited to muscles or nerves.  These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. 
The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss.  Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011).  Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment.  Id. 
In Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
The Court held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  Specifically the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 


8. Entitlement to an increased disability rating for bicipital tendonitis of the left shoulder is denied.  
By way of history, the Veteran filed a claim for an increased rating for the left shoulder disability and the claim was received at the RO on May 13, 2014.  A January 2015 rating decision denied entitlement to a disability rating in excess of 10 percent for the left shoulder disability.  A June 2016 rating decision assigned a 20 percent rating to the left shoulder disability from May 13, 2014 under Diagnostic Codes 5019 and 5201 with consideration of 38 C.F.R. §§ 4.40, 4.45, and 4.59.   
The rating schedule indicates that bursitis, rated under Diagnostic Code 5019, will be rated on limitation of motion of the affected parts as arthritis, degenerative.  Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a.
Under Diagnostic Code 5201, a 20 percent rating contemplates limitation of motion of the arm at shoulder level (for both major and minor extremity) and midway between side and shoulder level (minor extremity).  A rating of 30 percent rating requires limitation of motion of the arm midway between side and shoulder level (major extremity) and to 25 degrees from side (minor extremity).  A 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from the side (major extremity).  38 C.F.R. § 4.71a, Diagnostic Code 5201. 
Additional diagnostic codes provide ratings for the shoulder based on ankylosis (Diagnostic Code 5200), impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203).  38 C.F.R. § 4.71a.
When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination.
The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 20 percent for the service-connected left shoulder disability.    
The evidence reflects that the Veteran is right-handed; accordingly, his left shoulder disability will be rated as impairment of the minor shoulder under VA regulations.  38 C.F.R. § 4.69.  Additionally, the regulations provide that normal range of motion for the shoulder is from 0 to 180 degrees for flexion and abduction, and internal rotation to 90 degrees both up and down.  38 C.F.R. § 4.71, Plate I.
The Board finds that the evidence does not establish that left arm motion was limited to 25 degrees from side at any point during the period on appeal.  The August 2014 VA examination report indicates that the left arm forward flexion was to 110 degrees with objective evidence of painful motion beginning at 110 degrees and abduction was to 150 degrees with painful motion beginning at that point.  The Veteran was able to perform repetitive use testing and forward flexion was to 95 degrees and abduction was to 110 degrees post test.  The VA examiner stated that the functional impairment of the left shoulder also included less movement than normal, weakened movement, excess fatigability, and pain on movement.  There was localized tenderness and pain to palpation of the left shoulder area.  There was crepitus and grinding in the left shoulder.  Muscle strength was 4/5. 
The February 2012 VA examination report indicates that the left arm forward flexion and abduction was to 145 degrees with objective evidence of painful motion at that point.  The Veteran was able to perform repetitive use testing and forward flexion and abduction was to 145 degrees post test.  The VA examiner stated that the functional impairment of the left shoulder included pain on movement.  There was no localized tenderness or pain to palpation of the left shoulder area.  Muscle strength was 5/5.  
Accordingly, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s disability picture more closely approximates a rating in excess of 20 percent for the left shoulder disability as the record does not show the Veteran’s left arm’s range of motion is limited to 25 degrees from side.
Even considering painful motion and other symptoms, (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the weight of the evidence does not show that the range of motion of the Veteran’s left shoulder was so functionally limited as to meet the criteria for a disability rating in excess of 20 percent.  The Veteran’s symptom of pain was considered and assessed by the VA examiner in 2014.  The Veteran was able to move the left arm beyond 25 degrees on flexion and abduction including when functional loss is considered during flare-ups and after repeated use.  The VA examination shows that the painful motion of the left shoulder began well beyond 25 degrees.  The Veteran reported having intermittent pain in the left shoulder and she would get a cortisone injection in the shoulder which helped.  She reported that the left shoulder would catch or lock and she had flare-ups approximately once or twice a month and the flare-ups lasted until she got an injection.  The Veteran stated that she was unable to use the left arm at all but she also stated that she used a straight cane in her left hand.  See the August 2014 VA examination report.  Overall, the current 20 percent rating for the service-connected left shoulder disability is found to encompass any additional functional impairment due to pain and other symptoms to include during flare-ups.  Based on the evidence of record, there is no basis for the assignment of a higher rating pursuant to 38 C.F.R. §§ 4.40 and 4.45 in this case.  See DeLuca; supra. 
Applying the holding in Correia, although range of motion measurements associated with the testing of painful motion did not consider all forms of range of motion (active, passive, weight-bearing, non-weight-bearing) in compliance with 38 C.F.R. § 4.59, the Board finds that the VA examinations of record are adequate to adjudicate this appeal as they appropriately evaluate range of motion, pain, additional limitation of motion and functional loss upon repetitive testing.  Correia v. McDonald, 28 Vet. App. 158 (2016).  Range of motion comparison of the “undamaged” joint, in this case, the right arm and shoulder, was conducted upon VA exam in 2012.  The Board notes the shoulders are generally not a weight-bearing joint.  The Board takes notice that on VA examinations, the testing of the range of shoulder motions is generally done by assessing active motion rather than passive.  In addition, there is no logical indication why passive range of motion of the left shoulder would result in evidence to support a higher rating based on the criteria in this case.  The Board finds the findings in DeLuca v. Brown, 8 Vet. App. 202 (1995) to be much more applicable to this case than any other case law, for or since.  In this case the requirements of DeLuca have clearly been met.  Thus, considering all the evidence of record, the Board finds that the evidence is sufficient upon which to determine the functional limitation of motion under all relevant case law and requirements as to range of motion testing.
The Board considered the Veteran’s left shoulder disability under other analogous criteria; however, there is no evidence of ankylosis of the scapulohumeral articulation.  There is no evidence of impairment of the left humerus.  Thus, a higher rating is not warranted under Diagnostic Codes 5200 or 5202.  38 C.F.R. § 4.71a.   
In a March 2016 statement, the Veteran’s attorney argued that a separate rating should be assigned to the  service-connected left shoulder under Diagnostic Code 5304 based upon the findings of the October 2011 MRI of the left shoulder which showed a partial tear in the supraspinatus tendon and a partial tear of the infraspinatus myotendinosis.  The attorney argued that a separate rating should be assigned to the left shoulder based upon muscle injuries involving the supraspinatus or infraspinatus muscles.  
The Board has considered the application of the rating criteria for muscle impairment under 38 C.F.R. § 4.73, Diagnostic Code 5304.  Diagnostic Code 5304 rates impairment of shoulder function due to injury to muscle group IV, which includes the supraspinatus, infraspinatus, teres minor, subscapularis, and coracobrachialis muscles associated with the functions of which include stabilization of the shoulder against injury in strong movements, holding the head of the humerus in socket, abduction, and outward rotation and inward rotation of the arms.  38 C.F.R. § 4.73, Diagnostic Code 5304.  For a Muscle Group IV injury in a non-dominant limb, a 0 percent rating is appropriate for slight impairment, a 10 percent rating is appropriate for moderate impairment, and a 20 percent rating is appropriate for moderately severe or severe impairment.  For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement.  38 C.F.R. § 4.56 (c). 
After consideration of the evidence, the Board finds a separate evaluation is not appropriate under Diagnostic Code 5304 because it would result in pyramiding in violation of 38 C.F.R. § 4.14 because the “sign and symptom” of the left shoulder disability notably pain with motion, limited motion to include abduction, and slight weakness and weakened movement are contemplated in the currently assigned 20 percent rating under Diagnostic Code 5201 with consideration of Deluca, supra.  To assign the Veteran disability ratings under both Diagnostic Code 5304 and Diagnostic Code 5201 would be assigning him two disability ratings for the same disability and would constitute impermissible pyramiding.  See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); 38 C.F.R. § 4.14.  For these reasons, the Board concludes a separate rating or rating greater than 20 percent for the left shoulder disability is not warranted.
In conclusion, the Board finds that the assignment of a disability rating in excess of 20 percent is not warranted for the left shoulder disability at any time during the appeal period, and the claim for a higher rating is denied.  The preponderance of the evidence is against the Veteran’s claim for an increased rating for the left shoulder disability and the claim is denied.
9. Entitlement to an increased disability rating for the left wrist disability is denied.  
By way of history, the Veteran filed a claim for an increased rating for the left wrist disability and the claim was received at the RO on May 13, 2014.  A January 2015 rating decision denied entitlement to a disability rating in excess of 10 percent for the left wrist.  The 10 percent rating is under Diagnostic Codes 5010 and 5215.   
Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010.
Under rating criteria pertaining to limitation of motion of the wrist, Diagnostic Code 5215 provides that a maximum 10 percent rating is assigned for limitation of dorsiflexion of the major or minor wrist to less than 15 degrees, or limitation of palmar flexion in line with forearm.  38 C.F.R. § 4.71a (2018). 
Favorable ankylosis in 20 degrees to 30 degrees dorsiflexion warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity.  38 C.F.R. § 4.71a, Diagnostic Code 5214.  Ankylosis of the wrist in any other position, except favorable, warrants a 30 percent rating for the minor extremity and a 40 percent rating for the major extremity.  Unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation warrants a 40 percent rating for the minor extremity and a 50 percent rating for the major extremity.  Extremely unfavorable ankylosis is rated on the basis of a loss of use of the hands.  38 C.F.R. § 4.71a, Diagnostic Code 5215.  
Normal range of motion for the wrist is plantar flexion to 80 degrees, dorsiflexion to 70 degrees, ulnar deviation to 40 degrees, and radial deviation to 20 degrees.  38 C.F.R. § 4.71, Plate I (2018).
The record reflects that the Veteran is right-handed.  As such, the service-connected left wrist disability affects her minor or non-dominant extremity.  38 C.F.R. § 4.69.
The Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected left wrist disability. 
The Veteran is currently in receipt of a 10 percent rating for her left wrist disability as an acknowledgement of the Veteran’s complaints of painful motion.  The Board notes that 10 percent is the maximum rating available to the rating on the basis of impaired motion of the wrist.  See 38 C.F.R. § 4.71a , Diagnostic Code 5215.  A greater rating of the Veteran’s left wrist disability would require a finding that the Veteran’s left wrist was ankylosed or immobile.  The weight of the competent and credible evidence does not establish that the Veteran’s left wrist is ankylosed at any time, nor has the Veteran sought clinical treatment for immobility of the wrist.  The August 2014 VA examination report indicates that the left wrist palmar flexion was to 55 degrees with pain at that point.  Dorsiflexion was to 40 degrees with pain at that point.  Repetitive motion testing did not cause additional loss of motion.  The VA examiner indicated that the functional loss of the left wrist was less movement than normal and pain on movement.  Muscle strength was 4/5.  The VA examiner stated that the Veteran did not have ankylosis in the left wrist.  The VA examiner also stated that effective function remained in the left wrist and the Veteran would not be equally well served by an amputation.  The Veteran reported that she had constant pain in the left wrist and she experienced flare-ups once or twice a month.   The medical evidence of record dated after the 2014 VA examination does not establish ankylosis or loss of use of the left wrist. 
Upon review of the relevant evidence, the Board finds that the Veteran is currently in receipt of the maximum schedular rating under Diagnostic Code 5215.  To warrant a higher rating for the left wrist, ankylosis of the wrist or comparable impairment must be demonstrated.  38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215 (2018).  As no ankylosis, or comparable disability, has been demonstrated or found on examination at any time during the appeal period, the Board finds that the Veteran’s left wrist disability does not warrant a disability rating in excess of 10 percent. 
Given that the Veteran is already in receipt of the schedular maximum for limitation of motion of the wrist, inquiry into the DeLuca factors is moot.  Johnston v. Brown, 10 Vet. App. 80, 87 (1997).
The Board has considered Correia v. McDonald, 28 Vet. App. 158 (2016).  However, given that the Veteran was in receipt of the maximum rating based on limitation of motion of the wrist and a higher rating required ankylosis, there is no prejudice in the VA examination not having conformed to 38 C.F.R. § 4.59 as interpreted in Correia.
The Board concludes that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the left wrist disability and the claim for an increased rating is denied.
10. A timely substantive appeal was not filed as to the October 4, 2013 statement of the case, and the appeal is denied.
The Veteran and her attorney argues that the substantive appeal for the October 4, 2013 statement of the case should be considered timely because the attorney alleges he did not receive the statement of the case until January 28, 2014, greater than one month after the 60 day filing time period.  The Veteran and her attorney request an extension of time to file the VA Form 9 such that the enclosed VA Form 9, received on March 4, 2014 was considered timely.  See the March 2014 statement from the Veteran’s attorney and the VA Form 9 received on March 4, 2014.  
Under VA regulations, an appeal consists of a timely filed written notice of disagreement and, after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  A substantive appeal consists of a properly completed VA Form 9, “Appeal to Board of Veterans’ Appeals,” or correspondence containing the necessary information.  38 C.F.R. § 20.202.  A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later.  The date of mailing of the statement of the case will be presumed to be the same as the date of the statement of the case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  38 U.S.C. § 7105; 38 C.F.R. § 20.302 (b).
An extension of the 60-day period for filing a substantive appeal may be granted for good cause.  38 C.F.R. § 20.303.  However, the request for an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal.  Id. 
When the Rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed.  In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA.  In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded.  38 C.F.R. §§ 20.305 (a), 20.306.
The Board has the authority to determine whether it has jurisdiction to review a case, and may dismiss any case over which it does not have jurisdiction.  38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 20.101 (d).  The agency of original jurisdiction (AOJ) may close the case for failure to respond after receipt of the statement of the case (see 38 C.F.R. § 19.32), but a determination as to timeliness or adequacy of any such response for the purposes of appeal is in the province of the Board.  38 U.S.C. § 7105 (d); 38 C.F.R. § 20.101 (d).
Review of the record shows that an August 2012 rating decision assigned 10 percent ratings to the service-connected bicipital tendonitis of the left shoulder and the left wrist disability from February 10, 2012.  The Veteran was notified of this decision by letter dated August 29, 2012 and she filed a timely notice of disagreement on February 12, 2013.  
A statement of the case dated October 3, 2013 was sent on October 4, 2013 continuing the denial of higher disability ratings for the left shoulder and  left wrist disabilities.  The evidence shows that the October 2013 statement of the case was mailed to both the Veteran and her attorney.  The Veteran had 60 days from the date of the statement of the case to perfect the appeal (to file a formal appeal to the Board).
The Veteran’s VA Form 9 (formal Appeal to Board of Veterans’ Appeals), was received on March 4, 2014, which was more than 60 days after the October 4, 2013 statement of the case was issued.  Since the Veteran did not perfect her appeal to the Board within the substantive appeal time frame, the appeal was closed.  She was notified of this in a letter dated in March 2014.  
In the March 2014 VA Form 9 and statement, the Veteran and her attorney argue that the substantive appeal for the October 4, 2013 statement of the case should be considered timely because the attorney alleges he did not receive the statement of the case until January 28, 2014, greater than one month after the 60 day filing time period.  
The Board reiterates that the law provides for 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, not from the date of receipt by the appellant.  
Regardless, the United States Court of Appeals for Veterans Claims (Court) has held that “there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties.”  Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)).  The presumption of regularity with regard to the regular mailing of notice attaches if VA mails notice to the last address of record.  See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).  The mere assertion of nonreceipt by an appellant is not enough to establish the clear evidence needed to overcome the presumption of regularity in the mailing of the decision.  Davis v. Principi, 17 Vet. App. 29, 37 (2003).  To overcome the presumption of regularity and shift the burden to VA to prove that postal employees, as government officials, did not timely deliver the October 2013 statement of the case, the appellant must submit “clear evidence” indicating that the postal employees erred in their handling of his mail.  See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (presumption of regularity allows courts to presume that what appears regular is regular, the burden shifts to the claimant to show the contrary).
In this instance, the Veteran has not submitted the clear evidence necessary to rebut the presumption of regularity in the handling of the statement of the case related to her claim.  The Veteran and her attorney did not submit any evidence in support of this contention.  Thus, the Veteran has not submitted the clear evidence necessary to rebut the presumption of regularity in the handling of this statement of the case.  The mere allegation of irregularity does not, in itself, constitute clear evidence of irregularity.  Crain v. Principi, 17 Vet. App. 182, 186 (2003); YT v. Brown, 9 Vet. App. at 199 (allegation that claimant did not receive a statement of the case is not the “clear evidence to the contrary” that is required to rebut the presumption of regularity that the notice was sent).  Consequently, the presumption of regularity is not rebutted, and the Board does not find the Veteran’s attorney’s assertion as to late receipt of the October 2013 statement of the case to be persuasive.
The record shows that the Veteran’s attorney made a request for an extension of the 60-day period for filing a substantive appeal four months after the expiration of the time limit for filing the substantive appeal.  The Board finds that the request for the extension was not timely and was properly denied.  See 38 C.F.R. § 20.303.
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The Board has sympathetically considering the arguments on appeal, but can find no basis on which to grant the appeal under the binding laws and regulations.  As such, the appeal as to whether a substantive appeal was timely filed in response to the October 2013 statement of the case must be denied.
 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C.L. Krasinski, Counsel