Citation Nr: 18154749 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-51 753 DATE: November 30, 2018 ORDER New and material evidence having been presented, the claims of entitlement to service connection for left and right knee disabilities are reopened. To this limited extent only, the appeal of those issues is granted. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to an initial evaluation of 20 percent, and no greater, for the service-connected left shoulder disability is granted. Entitlement to an initial evaluation of 20 percent, and no greater, for the service-connected right shoulder disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. A March 1973 rating decision denied the Veteran’s claims of service connection for right and left knee disabilities. 2. Evidence submitted since the March 1973 rating decision was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claims for service connection for right and left knee disabilities. 3. There is no competent evidence of a nexus between the Veteran’s lumbar spine disability and his periods of active duty service. 4. Throughout the appeal period, the Veteran experienced pain in his left shoulder on motion; the shoulder displayed a full range of motion and no functional limitation. 5. Throughout the appeal period, the Veteran experienced pain in his right shoulder on motion; the shoulder displayed a full range of motion and no functional limitation. CONCLUSIONS OF LAW 1. New and material evidence has been received since the March 1973 denial became final; the criteria for reopening the previously denied claim for a right knee disability have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the March 1973 denial became final; the criteria for reopening the previously denied claim for a left knee disability have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for establishing service connection for a lumbar disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for an initial evaluation of 20 percent, but no higher, for the service-connected left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.59, 4.71a, Diagnostic Code 5201-5010. 5. The criteria for an initial evaluation of 20 percent, but no higher, for the service-connected right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.59, 4.71a, Diagnostic Code 5201-5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from January 1970 to April 1972, May 1978 to September 1978, July 1982 to December 1982, and January 2003 to August 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Whether new and material evidence has been received to reopen a claim of service connection for right and left knee disabilities The Veteran filed his initial service connection claims for his knees in February 1973. The RO denied service connection for that claim in a March 1973 rating decision based on a finding that there was no diagnosis of an organic knee disability. The Veteran was notified of that decision in a March 1973 notice letter. The Veteran did not submit a notice of disagreement with the decision within one year of that notice letter, nor did he submit any additional evidence respecting the claim. As no timely notice of disagreement or new and material evidence was received during the appeal period following the March 1973 notice letter, the March 1973 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claims of service connection for right and left knee disabilities. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the March 1973 rating decision, evidence of a current disability has been associated with the record, and the Veteran was afforded a VA examination to address the etiology of his knee disorder. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for left and right knee disabilities has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence indicating a medical opinion is warranted is sufficient to reopen a claim). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during active duty service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for a lumbar spine disability The Veteran applied for service connection for a lumbar strain, noting only that he had a profile for it in service. In an April 2013 written statement, the Veteran reported that he had his first back surgery in 2004, and that the back problems have made getting around the house and travel problematic. The Veteran did not offer any further statements or evidence indicating how the lumbar disability is related to his periods of active duty service. The Veteran’s Reserve service treatment records contain a profile in October 1995 for restricted for restricted physical training due to back and leg pains. Another profile in October 1998 listed “multiple trauma” including sternal injury, rotator cuff, and degenerative back disease; this profile was filed after a September 1998 motor vehicle accident resulting in chest injuries. A letter from the Veteran’s private physician stated, “Long term, he should not be required to participate in any running activities due to degenerative back problems.” In May 2001, the Veteran’s private physician stated in a letter than the Veteran was diagnosed with degenerative disc disease, and that they discussed surgery as an option for treatment. In June 2001, the Veteran was issued another profile due to degenerative disc disease of the lumbar spine and a right rotator cuff tear. There is no other record of the Veteran reporting or seeking treatment for low back pain or injury. The Board notes that on an August 2003 examination coinciding with discharge from his final period of active duty, the Veteran reported shoulder pain, foot trouble, numbness and tingling, a head injury, and several other health issues, but did not endorse recurrent back pain or any back problem. There is no indication in the record, either by medical evidence or lay statement, that the current disability might be associated with the Veteran’s active duty service; as such, there is no duty on VA’s part to obtain a medical opinion on this issue. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As noted above, the Veteran has not provided anything further in support of this claim. The medical evidence indicates that the lumbar disability was first noted in October 1995, then again in October 1998 after a motor vehicle accident, and in June 2001, all well after the Veteran’s third period of active service, which ended in December 1982, and prior to his fourth and final period of active service, which began in January 2003. The Veteran did not make any assertions regarding an injury or other in-service event during his 1982 period of active duty service that caused the onset of back pain in October 1995. Thus, there is no lay or medical evidence of a link between the Veteran’s lumbar spine disability and his active service. Accordingly, service connection for a lumbar spine disability is not warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. §4.40. The functional loss may be due to the loss 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, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which 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 (1995). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of sections 4.40 and 4.45 pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups which resulted in functional loss. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. at 207-08; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell, 25 Vet. App. at 37-38. Finally, painful motion is an important factor of disability with any form of arthritis. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability; actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Entitlement to an initial evaluation in excess of 10 percent for the service-connected left and right shoulder disabilities The Veteran’s right and left shoulder disabilities are both currently rated as 10 percent disabling under Diagnostic Code 5201-5010. See 38 C.F.R. § 4.59 (functional loss due to painful motion may be rated the minimum compensable rating for a joint with arthritis). Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for degenerative joint disease limiting the range of motion in his shoulders. The rating criteria for the shoulder are found at Diagnostic Codes 5200 through 5203. 38 C.F.R. § 4.71a. These codes distinguish between the major, or dominant, extremity and the minor, or non-dominant, extremity. 38 C.F.R. § 4.69. The evidence shows the Veteran to be right-hand dominant. Diagnostic Code 5201 provides that limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremities. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity and a 20 percent rating for a minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity and a 30 percent rating for a minor extremity. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5010, which governs arthritis due to trauma, is rated using the criteria under Diagnostic Code 5003. These criteria allow for a rating of 10 percent for each major joint or group of joints where there is x-ray evidence of arthritis but the limitation of motion is noncompensable under the relevant diagnostic criteria. In July 2013, the Veteran was afforded a VA shoulder examination. The Veteran reported not having any flare-ups or functional loss related to either shoulder, but did report pain with motion. Flexion of both the left and right shoulders was measured as 180 degrees and abduction was 180 degrees. No pain was noted on the physical examination on either side, and the range of motion remained the same on both sides after repetitive use testing. There was no localized tenderness, pain on palpation, or guarding of either shoulder noted on the examination. Muscle strength testing was all normal. There were positive results of the empty can test and the infraspinatus strength test in the left shoulder. There was no indication of dislocation, or of any injury or impairment to the humerus, clavicle, or scapula, and no ankylosis. The examiner noted x-ray evidence of degenerative arthritis of both shoulders. No other range of motion testing is present in the claims file. The Veteran did not identify any VA or private treatment for his shoulder disabilities aside from the Reserves service treatment records he submitted, which do not contain records from the period on appeal. After careful consideration of this evidence, the Board finds an increased evaluation is appropriate in this case. The Veteran’s shoulders both displayed a full range of motion at the July 2013 VA examination in both flexion and abduction. As this range of motion is noncompensable under Diagnostic Code 5201, the Veteran was assigned a 10 percent rating for both shoulders under Diagnostic Code 5010, based on the x-ray evidence of arthritis in both shoulders. However, section 4.59 provides that at least the minimal compensable rating should be assigned where there is pain in a joint or painful motion of a joint. See 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415 (2015) (“the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” and objective evidence of pain is not required under section 4.59). As noted above, the minimal compensable rating for limitation of motion of the shoulder under Diagnostic Code 5201 is 20 percent for both the major and minor extremities. Therefore, a 20 percent evaluation is appropriate for the Veteran’s right and left shoulders. The Board considered other diagnostic codes related to the shoulder to evaluate the Veteran’s right shoulder disability for a potentially higher evaluation. However, there is no evidence of recurrent dislocation of the shoulder, impairment of clavicle or scapula, nonunion or malunion of the humerus, or any ankylosis, so the other diagnostic codes pertaining to the shoulder joint are not applicable in this case. Finally, the evidence reflects complaints only of pain in both shoulders. There are no complaints of weakness, excess fatigability, incoordination, swelling, deformity, or disuse atrophy. Further, the Veteran has not reported that the pain causes any limitation in the function of either shoulder. Therefore, there is no evidence that pain or any other DeLuca factor rises to a level such that the next higher rating under Diagnostic Code 5201 would be appropriate. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 207-08 (1995). Accordingly, the Board finds that a further increase based on DeLuca is not appropriate throughout the appeal period. REASONS FOR REMAND 1. Entitlement to service connection for right and left knee disabilities is remanded. The Veteran was afforded a VA knee examination in July 2013, at which the examiner noted degenerative joint disease in the left knee and a total knee replacement in the right knee. The examiner provided an opinion in October 2013, noting no diagnosis in either knee, and opining that there is no objective evidence that reported knee pain in 1970 was related to a long term condition. The examiner opined the current knee pain was less likely than not related to service as soft tissue injury heals in one year or less. This opinion is inadequate, as it does not consider the diagnoses the examiner made in July 2013, and it impermissibly dismisses the Veteran’s credible statements of ongoing knee pain since service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). Accordingly, a new opinion is necessary. The matters are REMANDED for the following action: Schedule the Veteran for an examination with an appropriate clinician to determine whether any current right and/or left knee disability is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all knee conditions currently found. For each knee condition identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record, including the Veteran’s April and May 1970 service treatment records documenting reports of knee pain and diagnosis mild chondromalacia of the left knee.   All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel