Citation Nr: 18152321 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-03 169 DATE: November 21, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left shoulder disability is reopened. New and material evidence having been received, the claim of entitlement to service connection for a right shoulder disability is reopened. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Reduction of the evaluation for the Veteran’s low back disability from 40 percent to 10 percent was improper, and the 40 percent evaluation is restored. FINDINGS OF FACT 1. In a September 2009 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for disabilities of the left and right shoulders; the Veteran did not appeal. 2. The evidence received since the September 2009 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for left and right shoulder disabilities, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s left shoulder disability did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 4. The Veteran’s right shoulder disability did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 5. The record does not clearly demonstrate that the Veteran’s service-connected lumbar spine strain exhibited improvement, and the reduction in the disability rating from 40 to 10 percent was therefore improper. CONCLUSIONS OF LAW 1. The September 2009 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claims of entitlement to service connection for left and right shoulder disabilities. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017). 4. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017). 5. Restoration of the 40 percent evaluation for the Veteran’s lumbar spine disability is warranted. 38 U.S.C. §§ 1155, 5110, 5112, 5107 (2012); 38 C.F.R. §§ 3.344, 3.500, 4.1, 4.10, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Left and Right Shoulder Disabilities The Veteran seeks service connection for left and right shoulder disabilities. He maintains that arthritis of the shoulders was incurred as the result of activity such as loading bombs onto aircraft during service. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran’s discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, “[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.” Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service treatment records reflect that in August 2003, the Veteran was seen for complaints of back pain. He reported that he had been working ordinance which involved heavy lifting. On VA examination in March 2004, prior to his separation from service, the Veteran’s upper extremities were normal. At that time, he denied shoulder pain and arthritis. A February 2009 report from Duke University Sports Medicine Center indicates the Veteran’s report that he sustained bilateral shoulder fractures in 2003, while in Iraq, and that these injuries went untreated. He also reported that he underwent surgery in July 2007 and November 2008. In April 2009, a provider from Duke University noted the Veteran’s report that in 2003 he sustained injuries to his shoulders when a 500 lb bomb struck him. The provider noted the Veteran’s report that he believed he sustained a glenoid fracture on the left and a humerus fracture on the right. He stated that he had undergone surgery, but did not have the reports. The provider noted that imaging revealed fracture dislocation with large cuff tear on the right, and fracture dislocation of the left shoulder with unknown soft tissue extent. The Veteran underwent left shoulder decompression and arthroscopy in June 2009, right shoulder rotator cuff repair in August 2009, and left shoulder hemiarthroplasty in September 2009. A March 2011 letter indicates that the Veteran was a patient of Duke University Sports Medicine. The author indicated that the Veteran had developed posttraumatic arthritis in his shoulders. He noted that conservative treatment was not successful, and that the Veteran had undergone left shoulder hemiarthroplasty in September 2009. He indicated that the Veteran’s right shoulder also warranted arthroplasty. The Board concludes that, while there is evidence of arthritis of the shoulders, as indicated by the evidence cited above, it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Walker; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In this regard, the service treatment records reveal no trauma to the shoulders (as reported by the Veteran to his private providers), nor do they demonstrate any diagnosis, complaint, or abnormal finding referable to his shoulders. Rather, on separation examination in March 2004, the Veteran specifically denied shoulder problems, and stated that he felt good. By the Veteran’s own report, he did not undergo treatment for shoulder complaints until several years following service. The Board acknowledges that a private provider has stated that arthritis of the shoulders is related to trauma in service. This conclusion appears to be based on the Veteran’s self report of injury to his shoulders in 2003; however, the service treatment records document no injury or abnormal finding referable to the Veteran’s shoulders. The mere recitation of the Veteran’s self-reported lay history does not constitute competent medical evidence of diagnosis or causality. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). To the extent that the Veteran asserts that he has shoulder disabilities that are related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the current diagnoses because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran’s service. While the record demonstrates diagnoses referable to the Veteran’s shoulders, it does not contain reliable evidence which relates these claimed disabilities to any incident of service. For these reasons, the Board concludes that the claim of entitlement to service connection for left and right shoulder disabilities must be denied, as the preponderance of the evidence is against the claims. The doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Rating Reduction VA’s Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2017). In VA’s Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a Veteran’s disability claim may require ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. For disability ratings in effect for less than five years, reexaminations disclosing improvement, physical or mental, in a service-connected disability will warrant a reduction in rating. 38 C.F.R. § 3.344(c) (2017). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Prior to reducing a Veteran’s disability rating, VA is required to “comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.” Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1, 4.2, 4.10. These general provisions “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the Veteran’s disability.” Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also 38 C.F.R. § 3.344(c). Disabilities affecting the spine are rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5235-5242 or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula) under Diagnostic Code 5243, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The general rating formula for disease and injuries of the spine, specifically, 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, provides a 10 percent evaluation for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 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. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a DCs 5235-5243 (2017). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has 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, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Service connection for degenerative disc disease of the lumbar spine was granted in an August 2004 rating decision, and a 10 percent evaluation was assigned. A September 2009 rating decision awarded a 20 percent evaluation. The Veteran submitted a new claim in March 2012. On VA examination in January 2013, the diagnosis was degenerative disc disease. Physical examination revealed flexion to 45 degrees with pain at 25 degrees, extension to 30 degrees with no objective evidence of pain, right lateral flexion to 20 degrees with pain at 15 degrees, left lateral flexion to 15 degrees with pain at 10 degrees, and rotation to 15 degrees bilaterally with pain at 15 degrees bilaterally. Based on this examination, the AOJ awarded a 40 percent evaluation in an April 2012 rating decision, effective March 5, 2012. An additional VA examination was conducted in April 2014. The examiner indicated a diagnosis of lumbosacral strain. He reported flexion to 85 degrees with pain at 80 degrees, extension to 30 degrees with pain at 30 degrees, lateral flexion to 30 degrees bilaterally with no objective evidence of pain, and lateral rotation to 30 degrees bilaterally with no objective evidence of pain. Based on the April 2014 examination, the AOJ proposed to reduce the evaluation of the Veteran’s lumbar spine disability to 10 percent, and this reduction was carried out in September 2014, effective December 1, 2014. Social Security Administration (SSA) records received by VA in December 2014 indicate that the Veteran was examined in July 2014 pursuant to a claim for disability benefits. Range of motion testing revealed flexion to 40 degrees, extension to 0 degrees, and lateral flexion to 15 degrees bilaterally. Rotation was not reported. The examiner did not indicate the point at which the Veteran experienced pain. A November 2014 VA emergency department record indicates that the Veteran was seen for complaints of low back pain. Objectively, his back was tender to palpation. Straight leg lift was positive at 45 degrees. The Veteran had pain on flexion and extension. The assessment was worsened chronic low back pain with lumbar radiculopathy. In July 2015, the Veteran’s attorney pointed out that in November 2014 the Veteran had been prescribed a back brace and physical therapy for his back disability, and that prior evidence documented that the Veteran was issued a cane. He argued that the purported remarkable improvement in range of motion was reported without any recent imaging to determine whether there had been actual improvement. On VA examination in July 2017, the diagnosis was degenerative arthritis of the spine. The Veteran stated that his back pain had worsened since his April 2014 examination. Range of motion testing was accomplished, but the examiner did not report the point at which the Veteran experienced pain. Flexion was to 70 degrees, extension to 10 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 25 degrees bilaterally. The examiner noted that pain was exhibited in all planes. Having carefully reviewed the record, as reflected by recitation of the evidence above, the Board finds that restoration of the 40 percent evaluation is in order. In this regard, it is not entirely clear that the April 2014 examination report reflects improvement in the Veteran’s lumbar spine disability. The January 2013 examination report stated that the Veteran had flexion limited by pain at 25 degrees. While the April 2014 examination report appears to demonstrate remarkable improvement of the Veteran’s range of motion, a July 2014 private examination report shows limitation more closely approximating that reported in January 2013. Likewise, the July 2017 examination report indicates limitation of motion and pain in all planes; however, this report does not state the point during range of motion testing at which the Veteran experienced functional limitation due to pain. Thus, the Board has determined that it cannot be stated that the April 2014 VA examination report demonstrated sustained improvement in the Veteran’s lumbar spine disability. Accordingly, the 40 percent evaluation is restored. In sum, the Board finds that the AOJ failed to observe applicable law and regulation in reducing the disability rating assigned for the appellant’s service-connected degenerative disc disease of the lumbar spine. Under these circumstances, the reduction is void ab initio. Brown, 5 Vet. App. at 422. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel