Citation Nr: 18156531 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 13-20 721 DATE: December 11, 2018 ORDER Entitlement to an increased disability rating in excess of 20 percent for right-shoulder disorder is denied. Entitlement to service connection for low-back disorder is denied. FINDINGS OF FACT 1. The Veteran’s right-shoulder disorder does not exhibit limitation of motion midway between the side and shoulder level; motion no more than 25 degrees from the side; ankylosis in a major extremity; malunion with marked deformity; frequent episodes and guarding of all arm movements; fibrous union of the major arm; nonunion (false flail joint) of the major arm; loss of head of (flail shoulder) the major arm; further functional loss than that previously identified due to pain or flare-ups, weakness, excess fatigability, incoordination, or the inability to perform working or skilled movements. 2. The objective medical evidence shows that low-back disorder was not caused by an event, injury or illness during active service. 3. Arthritis, as associated with low-back disorder, did not manifest to a compensable degree within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 20 percent for right-shoulder disorder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5003, 5200, 5201, 5202, 5203 (2017). 2. The criteria for service connection for low-back disorder have not been met, nor are they presumed to be. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from February 1982 to February 1985 and from September 1990 to include June 1991. Additional terms of non-active service in the National Guard followed through August 2006. Scheduled Examinations The Board’s June 2018 remand directed that the Veteran be scheduled for two VA examinations, one to resolve conflicting evidence in the record concerning the Veteran’s claim for service connection for low-back disorder and the other to provide full and adequate findings regarding the claim for an increased disability rating for the Veteran’s service-connected right-shoulder disorder. The examinations were requested in August 2018 and the Regional Office (RO) was informed in September 2018 by the designated VA medical facility for the examinations that the Veteran had failed to report for both examinations. The record shows that his current address was provided for the notice of the examinations and there is nothing in the file suggesting that the notices were returned as undeliverable. Moreover, the supplemental statement of the case informed the Veteran of the missed examination, and there was no indication of a willingness to report for examination. As such, the Board will proceed on the evidence of record. In other words, VA’s duty to assist the Veteran is not a “one-way street,” the Veteran cannot remain passive and the Board is therefore not compelled to examine for sufficiency the RO’s practices of notification unless and until the Veteran, at a minimum, alleges that he did not receive notification. See Olsen v. Principi, 3 Vet. App. 480, 483 (1992); Baxter v. Principi, 17 Vet. App. 407, 411 (2004). As it is, under 38 C.F.R. § 3.655 (b), when, without offering good cause, a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed or a claim for increase, the claim shall be denied. See 38 C.F.R. § 3.655; see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). Nonetheless, the Board will look to once again to the record as it now stands for both claims. 1. Entitlement to an increased disability rating in excess of 20 percent for right-shoulder disorder. Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran’s right-shoulder disorder is rated under Diagnostic Codes 5003 and 5201. However, the Board will also look to related diagnostic codes, as they pertain to limitation of motion or associated or analogous disorders of the shoulder, to include Diagnostic Codes 5200, 5202 and 5203. Disabilities of the joints can be assigned a primary evaluation under Diagnostic Code 5003, which provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Codes 5200, etc.). When such limitation is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is available for the major joint or group of minor joints affected, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. However, as it is, the Veteran already has been assigned a rating of 10 percent under Diagnostic Code 5201. Under Diagnostic Code 5201, limitation of motion of the shoulder to shoulder level warrants a 20 percent evaluation for the major arm. Midway between the side and shoulder level warrants a 30 percent evaluation for the major arm. Motion no more than 25 degrees from the side warrants a 40 percent rating for the major arm. Higher evaluations are available for shoulder disorders under Diagnostic Codes 5200 and 5202. Under Diagnostic Code 5200, which pertains to ankylosis of the scapulohumeral articulation (Note: the scapula and the humerus move as one piece), a 30 percent rating is warranted when ankylosis in the major extremity is favorable with abduction to 60 degrees, and can meet the mouth and head. A 40 percent rating is appropriate when the ankylosis in the major upper extremity is intermediate between favorable and unfavorable. A 50 percent rating is available when there is unfavorable ankylosis in the major extremity with abduction limited to 25 degrees from the side. Diagnostic Code 5202, for impairment of the humerus in the major arm, a 20 percent evaluation is warranted when there is malunion with moderate deformity. A 30 percent evaluation is warranted for malunion with marked deformity. Also under Diagnostic Code 5202, for recurrent dislocations of the major arm at the scapulohumeral joint, a 20 percent evaluation is warranted with infrequent episodes, and guarding of movement only at shoulder level; a 30 percent evaluation is warranted when there are frequent episodes and guarding of all arm movements; a 50 percent evaluation is warranted for fibrous union of the major arm; a 60 percent evaluation is warranted for nonunion (false flail joint) of the major arm; and an 80 percent evaluation is warranted for loss of head of (flail shoulder) the major arm. Diagnostic Code 5203 offers no rating higher than the 20 percent already assigned to the Veteran for impairment of the clavicle or scapula. When evaluating disabilities of the musculoskeletal system under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A March 2012 rating decision granted service connection for disorders of the bursae and tendons in the right-shoulder region at a 10 percent disability rating, effective August 27, 2010, the date of receipt of the claim. A September 2018 rating decision increased the evaluation to 20 percent, also effective August 27, 2010, based on functional loss due to painful motion, noting that 38 C.F.R. §4.59 allows a rating for that reason at the minimum compensable rating for a particular joint. The Veteran having demonstrated painful motion of the arm at the shoulder, the minimum compensable evaluation of 20 percent under Diagnostic Code 5201 was available. Evidence In looking to the record as it now stands the medical evidence does not support an increase in disability evaluation beyond 20 percent. In October 2011, the Veteran underwent a VA examination for his right shoulder, in which the October 2011 VA examiner stated the Veteran’s January 2001 diagnosis as disorders of bursae and tendons in the right shoulder region. Physical examination revealed forward flexion at 170 degrees (0 to 180 normal), with objective evidence of pain at 170. Abduction at 165 degrees (180 normal), with objective evidence of pain at 165. There was no change noted following repetitive motion testing. There was evidence of pain on palpation and muscle strength was full (5/5). Additional testing revealed pain with internal rotation and weakness. Tests for rotator cuff conditions (Hawkins’ Impingement, Empty-can, External rotation/Infraspinatus strength, and Lift-off subscapularis tests) were all positive. The October VA examiner noted a history of mechanical symptoms such as clicking or catching, but found no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. He found no ankylosis of the glenohumeral articulation (shoulder joint). Although noting prior rotator cuff surgery in May 2001, the October 2011 VA examiner found no evidence of a clavicle, scapula, acromioclavicular joint or sternoclavicular joint condition. He further found that the Veteran’s disability does not impact his ability to perform work. The October 2011 VA examiner noted that imaging studies had documented right-shoulder arthritis. That day’s x-rays revealed: “Status post rotator cuff surgery. Mild arthrosis of the [acromioclavicular] joint. Otherwise normal study.” A VA treatment note in December 2011 noted on physical examination that the Veteran’s shoulders exhibited a full range of motion bilaterally, although crepitus was also noted in the right shoulder. In October 2015, the Veteran presented for another VA examination for his right shoulder, in which the Veteran’s April 2001 diagnosis was stated as status post right rotator cuff repair. Range of motion of findings were the following: Flexion (0 to 180 normal): 0 to 150 degrees. Abduction (0 to 180): 0 to 120 degrees. External rotation (0 to 90): 0 to 90 degrees. Internal rotation (0 to 90): 0 to 90 degrees. Left-shoulder findings were normal. Although the above right-shoulder limitations were noted, the October 2015 VA examiner nonetheless found they did not contribute to functional loss. There was no evidence of pain upon weight bearing. The Veteran was able to perform repetitive-use testing, without functional loss. The October 2015 VA examiner was unable to provide a finding as to the limit of functional ability with repeated use over a period of time, due to pain, weakness, fatigability, or incoordination, nor could he make the same finding regarding flare-ups. Right-shoulder muscle-strength testing showed the following: Forward flexion: 4/5 (Active movement against some resistance). Abduction: 5/5 (Normal). Left-shoulder findings were normal. The October 2015 VA examiner suspected a right-shoulder rotator cuff condition and found a positive result on the Empty-can Test; however, he found negative results on the Hawkins’ Impingement Test, the External Rotation/ Infraspinatus Strength Test and the Lift-off Subscapularis Test. The October 2015 VA examiner found no evidence of a clavicle, scapula, acromioclavicular joint or sternoclavicular joint condition. He did not find loss of head (flail shoulder), nonunion (false flail shoulder) or fibrous union of the humerus. He did not find malunion of the humerus with moderate or marked deformity. He found no ankylosis. The October 2015 VA examiner noted the Veteran’s April 2001 open right rotator cuff repair surgery. He further noted that imaging studies had documented right-shoulder arthritis. Current x-rays for this examination revealed: “1. No acute glenohumeral fracture or traumatic subluxation. 2. Status post rotator cuff surgery. No calcific tendinitis. 3. Moderate arthrosis of the [acromioclavicular] joint is present.” The October 2015 VA examiner noted from the record that the Veteran presented to his VA primary care clinic in August 2012, March 2014 and March 2015 with a medical history of right-shoulder injury. However, in each visit the treatment providers gave no assessment of a right-shoulder disorder. Additionally, the October 2015 VA examiner found that the Veteran’s disability does not impact his ability to perform any type occupational task. Based on this record, the Board finds there is no medical evidence to show that the Veteran’s right-shoulder disability exhibits limitation of motion midway between the side and shoulder level or motion no more than 25 degrees from the side, as required for a higher rating under Diagnostic Code 5201. The evidence does not show any ankylosis in a major extremity, as required for a higher rating under Diagnostic Code 5200. There is no evidence of malunion with marked deformity, frequent episodes and guarding of all arm movements, fibrous union of the major arm, nonunion (false flail joint) of the major arm, or loss of head of (flail shoulder) the major arm, as required for higher ratings under Diagnostic Code 5202. There is no medical evidence to indicate further functional loss than that identified in the September 2018 rating decision due to pain or flare-ups, weakness, excess fatigability, incoordination, or the inability to perform working or skilled movements, as required for higher a rating under 38 C.F.R. §§ 4.40, 4.45 and 4.59. Consequently, an increase in disability evaluation beyond 20 percent is not warranted. 2. Entitlement to service connection for low-back disorder. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, 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 connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). Evidence The record as it now stands does not provide medical evidence to establish service connection for low-back disorder. Service treatment records (STRs) contain the Veteran’s February 1982 enlistment examination for active service in the reserve, in which he denies current or past recurrent back pain. An in-service x-ray note in October 1982 appears to refer to the Veteran having landed in a parachute jump, resulting in tenderness at L5/S-1. The x-ray revealed “[p]robable developmental unfused ossification, center of right L4 inferior articular process, Spina bifida (probably occulta) at SI [sacroiliac].” A February 1985 in-service examination shows that the category of “spine and other musculoskeletal” was checked off a normal. Nonetheless, in the “Defects and Diagnoses” section, the examiner noted low-back pain (mechanical). In a May 1991 “out processing” examination, the category of “spine and other musculoskeletal” was checked off a normal. The Veteran denied current or past recurrent back pain, but reported having been treated in the previous five years for pulled back muscles. As to the cause of his back disorder, the in-service treatment provider noted the Veteran’s report in August 2000 that while instructing in rappelling he hit the adjacent wall “striking” both his back and shoulder. The foregoing summary of the STRs shows no specific findings of a chronic low-back injury. After complaints of tenderness after a parachute jump, the in-service examiner’s interpretation of the October 1982 x-rays taken in fact suggests a congenital defect (spina bifida occulta) as the ultimate “cause.” Although low-back pain was noted in the February 1985 examination, there are no subsequent notes indicating treatment. The May 1991 examination at the end of the Veteran’s active service provide no explanation or diagnosis of a back injury. After service, the Veteran presented at VA in September 2006 with complaints of back pain. A VA urology outpatient note in October 2006 noted, as reported by the Veteran, a “history of orthopedic injuries, however, none to the spine or back.” However, in November 2006, the Veteran presented at VA with low-back pain after lifting engine parts the day before. He was assessed with acute back pain. A VA primary care physician note in November 2010 noted symptoms of a sore back over the spine from past shattered vertebrae. In October 2011, the Veteran underwent a VA examination for thoracolumbar spine. Although finding overall diminished range of motion, at the outset, the October 2011 VA examiner noted that the Veteran does not now have or has ever been diagnosed with a thoracolumbar spine back condition. He further noted that imaging studies had documented arthritis. He remarked that an August 2000 Report of Investigation states the Veteran was instructing a rappel course and fell striking his back and shoulder against a wall. A January 2012 opinion followed the examination, stating the Veteran’s back disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness (parachute jump). In his rationale, the January 2012 VA examiner explained: The [V]eteran had a radiograph performed 10/26/02 indicating spina bifida at L1 and asymmetry of the facets at L4/L5 the right one hypoplastic or with an ununited ossification center at the end of the right L4 inferior articular process most likely representing a developmental variant. A specific back condition was not noted during service. An x-ray of 10 4/11 demonstrates mild to moderate discogenic vertebral endplate spurring at every lumbar disc level and mild to moderate bilateral hypertrophic facet arthropathy is noted from L2-L3 to L5-S1 disc levels. Arthropathy can cause pain. It is my medical opinion that the veteran currently has a chronic back condition of vertebral facet arthropathy (ICD-9: 716.9). It is my medical opinion that the veteran s current back condition is less likely related to his in-service complaints of back pain as there is no nexus with which to link the complaint to the present condition. Subsequent VA treatment notes from 2012 onward reflect back pain and findings such as “segmental dysfunction of the lumbar spine and thoracic spine” (July 2015). The post-service record indicates no complaints, treatment or assessments of a back disorder until 2006, approximately 15 years after the completion of the Veteran’s active service. Significantly, although the Veteran had complained of back pain in September 2006, his VA urology treatment provider noted that the Veteran’s orthopedic injury history showed no injuries to the spine and back. It was not until two months later in November 2006 that the Veteran presented with low-back pain, reporting the specific circumstances of having lifted heavy motorcycle engine parts the previous day. Moreover, after being afforded a VA examination in October 2011, the January 2012 negative opinion which followed explained, first, by noting that an October 2002 x-ray had revealed, as had the October 1982 in-service x-ray, the existence of the congenital spinal defect of spina bifida. The opinion further stated no back disorder had been noted in service and observed that the Veteran’s hypertrophic facet arthropathy (loss of cartilage between the vertebrae) could be the source of pain. This diagnosis has not subsequently been confirmed. From this, the Board does not discern a causal connection supported by clinical evidence between the Veteran’s current low-back disorder and any injury in service. As stated at the beginning of this decision, certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree, usually within one year. Arthritis is included among chronic diseases. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309. The Veteran’s treatment record shows findings of arthritis, as associated with low-back disorder. For example, findings in the October 2011 VA examination included that imaging studies had documented arthritis. However, the record gives no indication of the manifestation of arthritis in complaints, treatment or diagnoses within a year of separation from active service. Consequently, the presumption of service connection for arthritis, as associated with low-back disorder, as a chronic disease is not available to the Veteran. Additionally, because arthritis was never identified in service, it would be impossible to establish continuity of symptomatology following upon service and, as just stated, the subsequent record does not reflect this. For all the foregoing reasons and based on the objective medical evidence in the record as it now stands, the Board finds the Veteran’s low-back disorder is not caused by an event, injury or illness during active service. The Board further finds arthritis, as associated with low-back disorder, did not manifest to a compensable degree within one year of separation from active service. Consequently, service connection for this disorder, presumptive or otherwise, has not been established. The Board has reviewed and carefully considered the statements of the Veteran and N.R.R., given in or near December 2000, as they appear in the STRs; the Veteran’s August 2011 Statement in Support of Claim; his May 2012 correspondence statement; and the statement accompanying his July 2013 VA Appeals Form 9, as well as his reports to treatment providers, as they have appeared throughout the record. These have helped the Board in understanding better the nature and development of the Veteran’s disorders and how they have affected him. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and N.R.R. are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. However, the Board must emphasize that they are not competent to diagnose orthopedic disorders or interpret accurately clinical findings pertaining them, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the medical evidence when there are contradictory findings or statements inconsistent with the record and it must rely on clinical findings and opinions to establish the connection of current disabilities to service-related events, injuries or illnesses or determine their current level of severity. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Based on the evidence of record as it now stands, the Board has made its findings as stated above. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel