Citation Nr: 18153480 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 13-11 227 DATE: November 27, 2018 ORDER Entitlement to service connection for a lumbosacral spine disability is denied. Entitlement to a 30 percent rating effective March 8, 2013, for a left shoulder disability is granted. Entitlement to an earlier effective date than April 29, 2015, for a grant of service connection for left eye retina detachment is denied. REMANDED Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for hypothyroidism is remanded. Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran’s current lumbosacral spine disability is not related to active service. 2. The record evidence shows that, prior to March 8, 2013, the Veteran’s service-connected left shoulder disability is manifested by, at worst, forward flexion limited to 120 degrees with objective evidence of painful motion beginning at 120 degrees. 3. The record evidence shows that, effective March 8, 2013, the Veteran’s service-connected left shoulder disability is manifested by, at worst, internal rotation limited to 25 degrees with objective evidence of painful motion beginning at 25 degrees. 4. In a rating decision dated on February 12, 1981, and issued to the Veteran and his service representative on March 2, 1981, the Agency of Original Jurisdiction (AOJ) denied, in pertinent part, the Veteran’s original claim of service connection for left eye retina detachment (which was characterized as a head injury with ocular damage); this decision was not appealed and became final. 5. The record evidence shows that, in statements on his April 29, 2015, VA Form 21-526, the Veteran essentially requested that his previously denied service connection claim for a head injury with ocular damage be reopened. 6. In the currently appealed rating decision dated on October 16, 2017, the AOJ granted the Veteran’s claim of service connection for left eye retina detachment, assigning a 10 percent rating effective April 29, 2015. 7. In statements on a VA Form 21-0958, “Notice of Disagreement,” date-stamped as electronically received by the AOJ on November 13, 2017, the Veteran disagreed with the effective date assigned for the grant of service connection for left eye retina detachment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The criteria for entitlement to a 30 percent rating effective March 8, 2013, for a left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5201 (2017). 3. The criteria for entitlement to an earlier effective date than April 29, 2015, for a grant of service connection for left eye retina detachment is dismissed. 38 U.S.C. § 7104 (West 2014); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from October 1974 to November 1980, from October 2001 to September 2002, and from February 2003 to January 2004, including in Kuwait in support of Operation Iraqi Freedom. He also had additional unverified service in the U.S. Army National Guard and U.S. Navy Reserve. The Board notes that it denied the Veteran’s claim of entitlement to a disability rating greater than 20 percent for a left shoulder disability in April 2015. Both the Veteran, through his attorney, and VA’s Office of General Counsel filed a Joint Motion for Remand with the United States Court of Appeals for Veterans Claims (Court) in March 2016. The Court subsequently vacated and remanded the Board’s April 2015 decision later in March 2016. A videoconference Board hearing was held in July 2018 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board notes that the AOJ denied, in pertinent part, the Veteran’s original claim of service connection for left eye retina detachment (which was characterized as a head injury with ocular damage) in a rating decision dated on February 12, 1981, and issued to the Veteran and his service representative on March 2, 1981. This decision was not appealed and became final. 38 U.S.C. § 7104 (West 2012). The Board next notes that, after the Veteran submitted additional evidence in support of this claim, the AOJ readjudicated it in a rating decision dated on April 10, 1981, and issued to the Veteran and his service representative on April 22, 1981, and confirmed and continued the denial of this claim. The AOJ specifically found in the April 1981 rating decision that the evidence submitted by the Veteran following the March 1981 rating decision did “not show a service-connected eye injury.” The April 1981 rating decision also was not appealed and became final. The Veteran otherwise did not submit any relevant evidence or argument within 1 year of the March or April 1981 rating decisions which would render either of them non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board’s inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). Accordingly, as is explained below in greater detail, the Veteran is prohibited from disturbing the finality of either the March 1981 or April 1981 rating decisions by filing a freestanding earlier effective date claim. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Board next notes that the AOJ denied, in pertinent part, the Veteran’s currently appealed claims of service connection for a bilateral hip disability (which was characterized as separate service connection claims for a left hip disability and for a right hip disability) and for migraine headaches in a November 2015 rating decision. The Veteran disagreed with this decision in June 2016 correspondence with respect to the denial of these 3 service connection claims. Although the AOJ subsequently readjudicated these claims on the basis of whether new and material evidence had been received sufficient to reopen them, the Board finds that the June 2016 correspondence rendered the November 2015 rating decision non-final for VA adjudication purposes with respect to these claims. Thus, these claims are characterized as stated above. See Buie, 24 Vet. App. at 251-52. 1. Entitlement to service connection for a lumbosacral spine disability The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of service connection for a lumbosacral spine disability. The Veteran contends that he incurred a lumbosacral spine disability during active service and experienced continuous disability since his service separation. The record evidence does not support his assertions regarding an etiological link between the Veteran’s current lumbosacral spine disability and active service. It shows instead that, although the Veteran has been diagnosed as having and treated for a lumbosacral spine disability since his service separation, it is not related to active service or any incident of service. For example, the Veteran’s available service treatment records show no complaints of or treatment for a lumbosacral spine disability. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support the Veteran’s claim of service connection for a lumbosacral spine disability. It shows instead that, although he has been diagnosed as having and treated for a lumbosacral spine disability since his service separation, it is not related to active service. For example, on VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in March 2017, the Veteran’s complaints included constant discomfort and dull low back pain which he rated as 2-3/10 on a pain scale (with 1 being the least amount of pain). The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran reported injuring his back in a 30-40 foot fall while repelling during his first period of active service. He denied experiencing any flare-ups of low back pain, functional loss, or functional impairment. Range of motion testing of the thoracolumbar was completely normal with no additional limitation of motion on repetitive testing. Pain was noted on physical examination but did not cause functional loss. There was no objective evidence of localized tenderness to palpation of the joints or associated soft tissues, no guarding or muscle spasm, 5/5 muscle strength throughout, no muscle atrophy, normal deep tendon reflexes, normal sensation throughout, negative straight leg raising bilaterally, no radicular pain, ankylosis, neurologic abnormalities, and no intervertebral disc syndrome. X-rays were not indicated clinically. The VA examiner stated that joint testing was performed as medically appropriate pursuant to Correia. This examiner also concluded that there was no objective evidence of a back disability or injuries sustained during active service. This examiner opined that it was less likely than not that the Veteran’s lumbosacral spine disability is related to active service. The rationale for this opinion was that the Veteran’s reported lumbosacral spine symptoms “are subjective only. Objective exam is normal. There is no objective evidence of a chronic condition.” The diagnoses were degenerative arthritis of the spine and L4 L5 mild multilevel disc degeneration and facet degenerative changes. On VA back (thoracolumbar spine) conditions DBQ in July 2017, the Veteran’s complaints included “intermittent achy throbbing pain to [the] lower back” which he rated as 3/10 on a pain scale which worsened to 7/10 on a pain scale. He also complained of “severe discomfort to [the] lower back” and “stiffness to [the] lower back” with prolonged standing. The Veteran reported flare-ups of low back pain “with laying flat on back, prolonged standing, running, and bending.” He experienced flare-ups a few times a year which he rated as 7/10 on a pain scale and which lasted for 2-3 weeks. The Veteran again reported an in-service back injury following a fall during his first period of active service. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. Range of motion testing showed extension to 10 degrees but otherwise was normal and no additional limitation of motion on repetitive testing. Pain was noted on physical examination but did not cause functional loss. Physical examination showed no muscle spasm or guarding, 4/5 muscle strength in the hips and knees, 0/5 muscle strength in the right ankle and great toe, and 5/5 muscle strength in the left ankle and great toe, no muscle atrophy, hypoactive deep tendon reflexes, decreased sensation in the right thigh and bilateral knees, negative straight leg raising on the left and an inability to perform straight leg raising on the right, moderate numbness of the bilateral lower extremities, moderate radiculopathy of the bilateral lower extremities, and no ankylosis, neurologic abnormalities, or intervertebral disc syndrome. X-rays showed arthritis. The Veteran reported that his low back discomfort affected his work as a truck driver and had lost 1 week of work in the previous 12 months. There was no objective evidence of pain on non-weight bearing. The VA examiner stated that she could not examine the Veteran’s right ankle due to recent surgery. The diagnoses were degenerative joint disease and radiculopathy of the bilateral lower extremities. The Veteran contends that he incurred a lumbosacral spine disability during active service and experienced continuous disability since his service separation. Contrary to his lay assertions, the record evidence shows that there is no etiological relationship between his current lumbosacral spine disability (variously diagnosed as degenerative arthritis of the spine, L4 L5 mild multilevel disc degeneration and facet degenerative changes, degenerative joint disease, and radiculopathy of the bilateral lower extremities) and active service. The March 2017 VA examiner specifically found that it was less likely than not that the Veteran’s current lumbosacral spine disability is related to active service. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for a lumbosacral spine disability. In summary, the Board finds that service connection for a lumbosacral spine disability is not warranted. 2. Entitlement to a disability rating greater than 20 percent for a left shoulder disability The Board finds that the evidence supports granting a 30 percent rating effective March 8, 2013, for the Veteran’s service-connected left shoulder disability. The Veteran essentially contends that his service-connected left shoulder disability is more disabling than currently evaluated. The Board agrees, at least effective March 8, 2013 (the date of a VA examination showing increased left shoulder symptoms). The Board notes initially that the Veteran’s service-connected left shoulder disability is rated under DC 5010-5201 which provides separate ratings for the major (dominant) and minor (non-dominant) shoulders. The Board also notes initially that, because the Veteran is right-handed, his service-connected left shoulder is considered his minor (non-dominant) shoulder. See 38 C.F.R. § 4.71a, DC 5010-5201 (2017). Prior to March 8, 2013, the record evidence shows that the Veteran’s service-connected left shoulder disability is manifested by, at worst, forward flexion limited to 120 degrees with objective evidence of painful motion beginning at 120 degrees (i.e., a 20 percent rating under DC 5010-5201). Id. For example, on VA outpatient treatment in June 2012, the Veteran’s complaints included occasional pain on internal rotation of the left shoulder. The Veteran had undergone left shoulder surgery 6 months earlier. Range of motion testing of the left shoulder showed forward flexion to 120 degrees, abduction to 80 degrees “before scapular compensation,” and internal rotation “to lumbosacral region.” There was no swelling. The impressions included 6-months status-post left shoulder scope with surgical repair. On VA shoulder and arm conditions DBQ in August 2012, the Veteran’s complaints included progressively worsening left shoulder pain and soreness. The Veteran reported that his left shoulder ached at rest and then he guarded his shoulder “as to what he can do and has pain to do certain motions that definitely stop him from using his arm sometimes.” Range of motion testing of the left shoulder showed flexion to 180 degrees with objective evidence of painful motion beginning at 160 degrees, abduction to 160 degrees with objective evidence of painful motion beginning at 105 degrees, internal rotation to 90 degrees without objective evidence of painful motion, external rotation to 90 degrees without objective evidence of painful motion, and no additional limitation of motion on repetitive testing. Physical examination of the left shoulder showed less movement than normal, pain on movement, guarding, 5/5 muscle strength, and negative rotator cuff testing. The diagnoses included internal derangement of the left shoulder status-post rotator cuff repair with limited range of motion and scar. On VA shoulder and arm conditions DBQ in December 2012, the Veteran’s complaints included left shoulder pain and discomfort and aches. Range of motion testing of the left shoulder showed forward flexion to 120 degrees with objective evidence of painful motion beginning at 120 degrees, abduction to 85 degrees with objective evidence of painful motion beginning at 85 degrees, external rotation to 60 degrees with objective evidence of painful motion beginning at 60 degrees, internal rotation to 90 degrees without objective evidence of painful motion, and no additional limitation of motion on repetitive testing. Physical examination of the left shoulder showed less movement than normal, weakened movement, and excess fatigability, guarding, 4/5 muscle strength on abduction, 5/5 muscle strength on forward flexion, positive empty-can test, positive external rotation/infraspinatus strength test, and positive lift-off subscapularis test. The Veteran reported experiencing post-surgical residuals of chronic pain, discomfort, and “weakness with use of different angles and extensions with severe loss of range of motion.” The diagnosis was degenerative joint disease of the left shoulder with internal derangement status-post rotator cuff repair with residuals weakness and limited motion. Despite the Veteran’s assertions to the contrary, the record evidence shows that, prior to March 8, 2013, his service-connected left shoulder is manifested by, at worst, forward flexion limited to 120 degrees with objective evidence of painful motion beginning at 120 degrees (i.e., a 20 percent rating under DC 5010-5201). Id. The Board acknowledges that the Veteran reported undergoing left shoulder surgical repair in 2011 when seen on VA outpatient treatment in June 2012, approximately 6 months after surgery. At that time, the Veteran only reported experiencing occasional pain on internal rotation of the left shoulder and had a full range of motion on internal rotation to the lumbosacral region. VA examinations in August and December 2012 confirmed range of motion findings of left shoulder forward flexion to 120 degrees and internal rotation to 90 degrees without pain. Although the Veteran reported a “severe” loss of range of motion in the left shoulder in December 2012, the range of motion testing results obtained at that examination do not support his subjective complaints. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 20 percent prior to March 8, 2013, for his service-connected left shoulder disability. Thus, the Board finds that the criteria for a disability rating greater than 20 percent prior to March 8, 2013, for a left shoulder disability have not been met. In contrast, the evidence supports assigning a higher 30 percent rating effective March 8, 2013, for the Veteran’s service-connected left shoulder disability under DC 5010-5201. Id. VA shoulder and arm conditions DBQ conducted on March 8, 2013, shows that internal rotation of the left shoulder was limited to 25 degrees with objective evidence of painful motion beginning at 25 degrees. This finding of severely limited range of motion on internal rotation of the left shoulder also is supported by the Veteran’s subjective complaints of being unable to raise his left arm above his left shoulder. In other words, VA examination on March 8, 2013, showed – for the first time – that the Veteran’s service-connected left shoulder disability is manifested by, at worst, limitation of motion of the left arm to 25 degrees from the side (i.e., a 30 percent rating under DC 5010-5201). Id. The findings of severely limited left shoulder range of motion on internal rotation further are supported by findings on subsequent VA examination in September 2015 which found left shoulder internal rotation limited to 20 degrees. On VA shoulder and arm conditions DBQ in July 2017, the Veteran’s complaints included left shoulder pain with flare-ups of pain shooting down his left arm to his left elbow, severe cramping in the left shoulder blade while working, easy fatigability in the left shoulder, and occasional numbness in the fingers of the left hand. The Veteran reported that he was unable “to raise or move [his] arm in certain ranges of motion.” Range of motion testing of the left shoulder showed flexion to 145 degrees, abduction to 90 degrees, external rotation to 75 degrees, and internal rotation to 30 degrees due to pain, fatigue, and weakness. There was evidence of pain on weight bearing but no evidence of crepitus. Repetitive range of motion testing of the left shoulder showed flexion to 130 degrees, abduction to 85 degrees, external rotation to 75 degrees, and internal rotation to 30 degrees due to pain, fatigue, and weakness. Physical examination of the left shoulder showed less movement than normal, weakened movement, 4/5 muscle strength, positive Hawkins impingement and lift-off subscapularis tests, and negative empty-can and external rotation/infraspinatus tests. The VA examiner stated that there was objective evidence of pain on passive range of motion testing and non-weight bearing testing of the left shoulder. The diagnosis was degenerative arthritis of the left shoulder with internal derangement, status-post rotator cuff repair with residual weakness and limited motion. The Board agrees with the Veteran’s assertions that the symptomatology attributable to his service-connected left shoulder disability worsened, at least effective March 8, 2013. VA examination conducted on that date showed that internal rotation of the Veteran’s left shoulder was limited to 25 degrees with objective evidence of pain beginning at 25 degrees. This supports the assignment of a 30 percent rating effective March 8, 2013, for the Veteran’s service-connected left shoulder disability under DC 5010-5201. Id. Accordingly, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a 30 percent rating effective March 8, 2013, for a left shoulder disability have been met. 3. Entitlement to an earlier effective date than April 29, 2015, for a grant of service connection for left eye retina detachment The Board finally finds that the Veteran’s claim of entitlement to an earlier effective date than April 29, 2015, for a grant of service connection for left eye retina detachment must be dismissed as a matter of law. In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court held that Veterans are prohibited from collaterally attacking a prior final decision by filing a freestanding earlier effective date claim. The Court specifically held that, once a decision has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of a decision. The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. As noted above, in rating decisions issued in March 1981 and in April 1981, respectively, the AOJ denied a claim of service connection for left eye retina detachment (which was characterized as a head injury with ocular damage) and confirmed and continued the denial of this claim. The Veteran did not appeal either of these rating decisions and they became final. 38 U.S.C. § 7104 (West 2012). With the exception discussed above, the Veteran otherwise did not submit any relevant evidence or argument within 1 year of either the March 1981 or April 1981 rating decision which would render either of them non-final for VA adjudication purposes. See Buie, 24 Vet. App. at 251-52. The next relevant correspondence occurred on April 29, 2015, when the Veteran submitted a VA Form 21-526EZ in which he essentially requested that his previously denied service connection for a head injury with ocular damage (which he characterized as left eye retina detachment) be reopened. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Neither the March 1981 rating decision, which denied the Veteran’s original claim of service connection for left eye retina detachment (which was characterized as a head injury with ocular damage), nor the April 1981 rating decision, which confirmed and continued the denial of this claim, can be collaterally attacked by filing a freestanding earlier effective date claim. As such, the Board cannot adjudicate the Veteran’s earlier effective date claim for a grant of service connection for left eye retina detachment without violating the Court’s express prohibition against freestanding earlier effective date claims found in Rudd. See Rudd, 20 Vet. App. at 296. Therefore, there is no legal entitlement to an effective date earlier than April 29, 2015, for a grant of service connection for left eye retina detachment and the appeal must be dismissed. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip disability and for migraine headaches is remanded. The Board acknowledges that the Veteran was examined for purposes of determining the nature and etiology of his claimed bilateral hip disability and migraine headaches in July 2017. Following the Veteran’s VA hip and thigh conditions DBQ and his VA headache DBQ in July 2017, the VA examiner who conducted these examinations provided medical nexus opinions concerning the contended etiological relationship between the Veteran’s currently diagnosed bilateral hip disability, migraine headaches, and active service. Unfortunately, a review of this evidence shows that the July 2017 VA examiner’s opinions are insufficient to survive judicial review as he found persuasive support for these opinions in the lack of post-service complaints of or treatment for the Veteran’s claimed bilateral hip disability and migraine headaches. The Board again notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. Having reviewed the July 2017 VA hip and thigh conditions DBQ and VA headache DBQ and the nexus opinions provided after these examinations, the Board finds that this evidence in inadequate for VA adjudication purposes. Thus, the Board also finds that, on remand, the Veteran should be scheduled for appropriate examinations to determine the nature and etiology of his bilateral hip disability and his migraine headaches. 2. Entitlement to service connection for hypothyroidism is remanded. The Board next acknowledges that the Veteran was examined for purposes of determining the nature and etiology of his hypothyroidism in December 2017. Unfortunately, it appears that the VA examiner who conducted the Veteran’s VA thyroid and parathyroid conditions DBQ in December 2017 was not asked to provide and did not provide an opinion as to the contended etiological relationship between the Veteran’s hypothyroidism and active service. Thus, the Board finds that, on remand, the December 2017 VA thyroid and parathyroid conditions DBQ should be returned to the VA examiner who completed it or another appropriate clinician for an addendum opinion which addresses the contended etiological relationship between the Veteran’s hypothyroidism and active service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any bilateral hip disability. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral hip disability, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. A separate opinion and rationale should be provided for each of the Veteran’s hips. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a bilateral hip disability, alone, is insufficient rationale for a medical nexus opinion. 2. Schedule the Veteran for an examination to determine the nature and etiology of any migraine headaches. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that migraine headaches, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for migraine headaches, alone, is insufficient rationale for a medical nexus opinion. 3. Return the December 2017 VA thyroid and parathyroid conditions DBQ to the examiner who completed it or another appropriate clinician for an addendum opinion. In the addendum opinion, the December 2017 VA thyroid and parathyroid conditions examiner or another appropriate clinician should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypothyroidism is related to active service or any incident of service, including as due to an undiagnosed illness or exposure to burn pits while deployed to the southwest Asia theater of operations. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for hypothyroidism, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran’s service personnel records show that he served in the southwest Asia theater of operations. 5. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel