Citation Nr: 18149927 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-37 598 DATE: November 14, 2018 ORDER Entitlement to service connection for a right shoulder rotator cuff syndrome is denied. Entitlement to an initial disability rating in excess of 40 percent for thoracolumbar degenerative disease, with scoliosis, is denied. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for left shoulder rotator cuff syndrome is remanded. Entitlement to service connection for a right hip condition, to include as secondary to service-connected thoracolumbar condition, is remanded. Entitlement to service connection for a left hip condition, to include as secondary to service-connected thoracolumbar condition, is remanded. Entitlement to service connection for a right foot condition is remanded. Entitlement to an initial disability rating in excess of 10 percent for left foot degenerative osteoarthritis of the metatarsophalangeal (MTP) joint is remanded. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease (DJD), with old Pellegrini-Stieda disease, is remanded. Entitlement to a disability rating in excess of 10 percent for left knee DJD is remanded. Entitlement to an initial disability rating in excess of 10 percent for cervical strain is remanded. FINDINGS OF FACT 1. A preponderance of the evidence is against a finding that the Veteran’s current right shoulder rotator cuff syndrome is related to active service. 2. Throughout the appeal period, the Veteran’s thoracolumbar degenerative disease, with scoliosis, has been characterized by flexion to 25 degrees. At no point during the appeal period has it been characterized by unfavorable ankylosis of the entire thoracolumbar spine, or with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. The Veteran’s PTSD symptoms have more closely approximated occupational and social impairment with reduced reliability and productivity. His symptoms have not approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right shoulder rotator cuff syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for a disability rating in excess of 40 percent for thoracolumbar degenerative disease, with scoliosis, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a, Diagnostic Codes (DCs) 5242-5237, General Rating Formula for Diseases and Injuries of the Spine. 3. The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.130, DC 9411, General Rating Formula for Mental Disorders. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1988 to September 1994. These matters are before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and June 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. On his October 2015 substantive appeal, VA Form-9, the Veteran marked that he desired to testify before a member of the Board. Subsequently, in a March 2018 Report of General Information, the Veteran wrote that he wished to cancel his hearing. The hearing request has been withdrawn. See 38 C.F.R. §§ 20.703, 20.704. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain disabilities, including arthritis, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Entitlement to service connection for right shoulder rotator cuff syndrome. The Veteran asserts that his current right shoulder rotator cuff syndrome is etiologically related to active service. In this case, the Board acknowledges that in a February 2013 VA examination report, the Veteran was diagnosed with a right shoulder rotator cuff syndrome. Service treatment records (STRs) from 1989 noted that as a result of a car accident, the Veteran started to experience pain in his shoulder. The physical examination was remarkable for being normal, but there was evidence of pain on movement of both shoulders. In a March 2013 supplemental opinion, the VA examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no specific evidence of continuation of the pain in the Veteran’s right shoulder, except for one occasion. At the time of his 1989 car accident, a soft tissue injury was diagnosed and the Veteran received conservative treatment. The VA examiner noted that there was no continuity of chronic pain in the right shoulder in the Veteran’s medical records. The Board notes that the passage of time between the Veteran’s discharge and an initial diagnosis for his right shoulder problems is one factor that weighs against his claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Veteran is competent to observe his right shoulder symptoms, he does not have the training or credentials to provide a competent opinion as to a specific diagnosis or the onset date of such diagnosis concerning his right shoulder rotator cuff syndrome and whether it is related to his time in the military. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the February 2013 VA examination report and the March 2013 opinion, indicating no nexus between the Veteran’s current right shoulder rotator cuff syndrome and active service, constitute the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As a result, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With initial evaluations, as here, separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Entitlement to an initial disability rating in excess of 40 percent for thoracolumbar degenerative disease, with scoliosis. Under 38 C.F.R. § 4.71a, DCs 5235 to 5243, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. The maximum 100 percent rating is warranted for with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Under DC 5243, intervertebral disc syndrome (IVDS) may be rated under either the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes. Under the Formula for Rating IVDS, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a rating of 40 percent. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a rating of 60 percent. Id. For purposes of evaluating under DC 5243, an “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. The assigned 40 percent evaluation for the Veteran’s thoracolumbar degenerative disease fully contemplates all muscle spasm and gait symptoms, as well as all motions; these need not be further discussed here. The evidence of record, including a February 2013 VA examination report and a December 2013 supplemental opinion, is negative for unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes (doctor-prescribed bedrest) having a total duration of at least 6 weeks during the past 12 months. There accordingly exists no basis for an underlying low back rating in excess of 40 percent. Id. Additionally, the Board notes that there is no competent evidence of any other associated objective neurologic abnormalities, to include radiculopathy, so separate compensable ratings are not applicable. There accordingly exists no basis for an underlying thoracolumbar rating in excess of 40 percent, and the claim must be denied. Id. The Board finds that the February 2013 VA examination report and the December 2013 supplemental opinion, describing the Veteran’s back symptoms, to be the most probative evidence of record, as the examiners reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent to observe his back symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms, as reflected by the applicable diagnostic criteria. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his thoracolumbar degenerative disease. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Entitlement to an initial disability rating in excess of 50 percent for PTSD. The Veteran’s PTSD is currently rated as 50 percent under DC 9411 under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affection the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. The maximum 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal person hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Veteran asserts that his PTSD warrants a rating higher than the initial 50 percent assigned from April 21, 2011. The evidence of record, including an April 2014 examination report and various VA medical records, showed that the Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stress circumstances, and impaired impulse control. The Board notes that during the April 2014 VA examination, the Veteran reported that he was close with his mother and sister. While the Veteran stated that he was single, he noted that he was in a relationship, but that it was “difficult.” The Veteran reported he had two sons but that he had difficulties with them because of his mood issues. The Board notes that while the Veteran’s symptoms of difficulty in adapting to stressful circumstances and impaired impulse control are listed under the criteria for a 70 percent rating, overall, the current severity and frequency of his PTSD symptoms more nearly approximate a 50 percent disability rating. There is no indication that these symptoms have significantly interfered with the Veteran’s social and occupational functioning so as to support a higher rating. The corresponding symptoms reflect this degree of severity. Id. The presence or absence of specific symptoms, which correspond to a particular rating, is not dispositive. 38 C.F.R. § 4.130; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Overall, at no time has the Veteran had occupational and social impairment with deficiencies in most areas. Thus, at no point during the appeal period have the Veteran’s PTSD symptoms more closely approximated occupational and social impairment, with deficiencies in most areas, nor has he warranted a 70 percent rating. Id. There is currently no evidence of record suggesting an even higher degree of disability at any point during the appeal period. The Board finds that the April 2014 VA examination report, describing the Veteran’s PTSD symptoms, to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent to observe his PTSD symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his PTSD symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran has not asserted that he is unable to work because of his service-connected disabilities, nor does the record reflect that he cannot work because of his service-connected disabilities. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. REASONS FOR REMAND Entitlement to service connection for left shoulder rotator cuff syndrome. In the February 2013 VA examination report, the Veteran was diagnosed with a left shoulder rotator cuff syndrome. However, this examination report did not contain an etiology opinion. While the March 2013 supplemental opinion concluded that the Veteran’s right shoulder condition was not related to active service, no opinion was given on the left shoulder. As a result, a new VA examination is necessary to determine if the Veteran’s left shoulder rotator cuff syndrome is etiologically related to active service. 38 C.F.R. § 3.159(c)(4). Entitlement to service connection for right and left hip conditions, to include as secondary to service-connected thoracolumbar condition. In a February 2013 VA examination report, the Veteran was diagnosed with osteoarthritis of the right hip. No diagnosis was given for the left hip. This examination report did not contain an etiology opinion. In a subsequent December 2013 VA opinion, the examiner opined that it was most likely that the Veteran’s left hip decreased range of motion and pain on movement were related to his service-connected back condition. No opinion was given on the right hip. As a result, a new VA examination is necessary to determine if the Veteran’s decreased range of motion and pain in his left hip is related to a diagnosed condition, and if so, whether the right and left hips are etiologically related to active service, to include the Veteran’s service-connected back condition. 38 C.F.R. § 3.159(c)(4). Entitlement to service connection for a right foot condition and an initial disability rating in excess of 10 percent for left foot degenerative osteoarthritis of the MTP joint. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The regulation specifically states, “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Veteran was afforded a VA examination in February 2013 to evaluate his now service-connected left foot degenerative osteoarthritis of the MTP joint. However, the examination did not include both active and passive range of motion in weight bearing and non-weight bearing. Therefore, in light of Correia, the claims must be remanded for a new VA examination with complete range of motion testing. Additionally, the Board notes that a favorable decision on the claim for an increased rating for left foot degenerative osteoarthritis of the MTP joint could impact upon the Veteran’s claim for service connection for his right foot condition. Thus, the Board finds that these two issues are inextricably intertwined. As a result, the appeal is remanded. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). Entitlement to disability ratings in excess of 10 percent for right knee DJD, with old Pellegrini-Stieda disease, and left knee DJD. The Veteran was afforded a VA examination in November 2011 to evaluate his now service-connected right and left knee DJD. However, the examination did not include both active and passive range of motion in weight bearing and non-weight bearing. Therefore, in light of Correia, the claim must be remanded for a new VA examination with complete range of motion testing. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, in a December 2013 VA opinion, the examiner noted that the Veteran’s right knee enchondroma and possible old fibula fracture were not related to his service-connected knee conditions. However, the examiner never opined if these new conditions had been aggravated by his service-connected knee conditions. As a result, a new VA examination is necessary to determine the current nature, extent, and severity of the Veteran’s service-connected right and left knee DJD. 38 C.F.R. § 3.159(c)(4). Entitlement to an initial disability rating in excess of 10 percent for cervical strain. In his July 2014 Notice of Disagreement (NOD), the Veteran wrote that he was appealing his PTSD rating and felt that he should be awarded a 100 percent rating with the combination of the injures to his knees, back, hips, shoulders, and feet. While the Veteran only explicitly wrote that he was appealing his PTSD rating, the RO construed this statement to be a NOD with all the Veteran’s other appeals except for his recently service-connected cervical strain. Affording the Veteran the benefit of the doubt, and construing his statement in the most beneficial light, the Board finds that when the Veteran mentioned his “back,” he meant both his thoracolumbar and cervical claims. Because the Veteran has filed an NOD with regard to his service-connected cervical strain within one year of the March 2014 rating decision, continuing his 10 percent rating, the issuance of a statement of the case is required. Manlincon v. West, 12 Vet. App. 238 (1999); 38 C.F.R. §§ 20.201, 20.300 (2016). The matters are REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all VA and private treatment records concerning these claims. 2. Provide the Veteran and his representative with a statement of the case regarding the issue of entitlement to an initial disability rating in excess of 10 percent for cervical strain. Please advise the Veteran and his representative of the time period in which to perfect his appeal. If the Veteran perfects his appeal of these issues in a timely fashion, then return the case to the Board for its review, as appropriate. 3. After the above has been completed, schedule the Veteran for appropriate VA examinations to determine the nature and etiology of any diagnosed left shoulder rotator cuff syndrome, right foot condition, and the claimed right and left hip disabilities, as well as the current severity and manifestations of his left foot degenerative osteoarthritis of the MTP joint; right knee DJD, with old Pellegrini-Stieda disease; and left knee DJD. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the report of the examination must note review of the file. The examiner is requested to opine whether the left shoulder rotator cuff syndrome and right foot condition are at least as likely as not (a 50 percent or greater probability) directly related to active military service. If hip conditions are diagnosed, the examiner is separately requested to opine whether it is at least as likely as not that any hip condition is either directly related to active military service, or is proximately due to or aggravated by the Veteran’s service-connected thoracolumbar degenerative disease. With regard to left foot degenerative osteoarthritis of the MTP joint; right knee DJD, with old Pellegrini-Stieda disease; and left knee DJD, the most up-to-date Disability Benefits Questionnaire must be employed in ascertaining the symptoms and severity of these disorders. The joints should be tested for pain on both active and passive range of motion in weight bearing and non-weight bearing and, where applicable, compared with the range of the opposite joint. All opinions must be supported by a detailed rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel