Citation Nr: 18156642 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 11-31 195 DATE: December 11, 2018 ORDER Entitlement to an initial compensable evaluation for residuals of left shoulder acromioclavicular (ACV) joint separation (left shoulder disability) prior to February 22, 2017 and an evaluation greater than 20 percent thereafter is denied. Entitlement to an initial evaluation greater than 20 percent for left shoulder clavicle or scapula impairment is denied. Entitlement to an initial compensable evaluation for degenerative changes of the right knee (right knee disability) prior to November 17, 2011 and an evaluation greater than 10 percent thereafter is denied. REMANDED Entitlement to service connection for left knee strain, to include as secondary to service-connected right knee disability (left knee disability) is remanded. FINDINGS OF FACT 1. Prior to February 22, 2017, the Veteran’s left shoulder disability did not manifest by loss of range of motion with limited motion of the arm at shoulder level. 2. Beginning February 22, 2017, the Veteran’s left shoulder disability manifested by subjective complaints of pain and limited motion of the arm at shoulder level. 3. Beginning February 22, 2017, the Veteran’s left shoulder clavicle or scapula impairment manifested by dislocation of the clavicle and post-traumatic arthritis. 4. Prior to November 17, 2011, the Veteran’s right knee disability manifested without pain and no limitation of flexion. 5. Beginning November 17, 2011, the Veteran’s right knee disability manifested with arthritis confirmed by x-ray with limitation of flexion. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation prior to February 22, 2017 for a left shoulder disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5299-5201. 2. The criteria for an evaluation greater than 20 percent as of February 22, 2017 for a left shoulder disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5003-5201. 3. The criteria for an initial evaluation greater than 20 percent for left shoulder clavicle or scapular impairment have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5010-5203. 4. The criteria for an initial compensable evaluation prior to November 17, 2011 and an evaluation greater than 10 percent thereafter for a right knee disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2006 to January 2010. These matters come to the Board of Veterans’ Appeals (Board) on appeal from October 2010 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, these matters were previously before the board, but were remanded to schedule the Veteran for a videoconference hearing. In January 2018, the Veteran was afforded a videoconference hearing. The Veteran did not attend the scheduled hearing. The Veteran was properly notified of the time, date, and location of the scheduled hearing and did not appear. The hearing request is deemed withdrawn. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed her claim for an increased rating, and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Increased Evaluations for Left Shoulder Disability and Left Shoulder Clavicle or Scapula Impairment The Veteran’s left shoulder disability is currently rated noncompensable prior to February 22, 2017. His rating is assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5201. The Veteran’s left shoulder disability is currently rated at 20 percent from February 22, 2017. His rating is assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. A March 2017 rating decision granted entitlement to a separate rating for left shoulder clavicle or scapula impairment, and assigned a 20 percent disability rating effective February 22, 2017. His rating is assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5203. Under Diagnostic Code 5003, 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 (DC 5200 etc.). 38 C.F.R. § 4.71a. In the absence of limitation of motion, under Diagnostic Code 5003, a 10 percent rating is appropriate with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a. A 20 percent rating is appropriate with x-ray evidence of involvement of two or more major joint groups or two or more minor joint groups, with occasional incapacitating exacerbations. Id. These ratings will not be combined with ratings based on limitation of motion and will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id. When degenerative arthritis is established by x-ray findings and limitation of motion is noncompensable, a rating of 10 percent is appropriate for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Diagnostic Code 5200 provides for ankylosis of the scapulohumeral articulation. There is no evidence of such here. Under Diagnostic Code 5201 for limitation of arm motion for the minor extremity, limitation of the arm to shoulder level warrants a 20 percent rating. The criterion for a 20 percent rating, for the minor extremity is also limitation of the arm to midway between the side and shoulder level, that is, 45 degrees. For limitation of motion to 25 degrees from the side, the minor extremity is rated at 30 percent. 38 C.F.R. § 4.71a. Because the Veteran is right-handed, the minor codes apply. Under Diagnostic Code 5202, impairment of the humerus, the criteria for a 20 percent rating, the lowest rating, are malunion of moderate deformity, or recurrent dislocation at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. The criteria for a 30 percent are malunion of marked deformity or recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements. Higher ratings are awarded for findings of fibrous union, nonunion (false flail joint), and loss of the head of the humerus (flail joint). There is no evidence of such here. Under Diagnostic Code 5203, impairment of the clavicle, 20 percent is warranted for dislocation, 20 percent is warranted for nonunion with loose movement, 10 percent without loose movement. Malunion of the clavicle is 10 percent. Under this Diagnostic Code, impairment of the clavicle or scapula may also be rated on impairment of function of the contiguous joint. Diagnostic Code 5024 is for tenosynovitis, which is rated on the basis of limitation of motion as degenerative arthritis. There is no evidence of such here. Normal range of motion in the shoulder is from 0 to 180 degrees of flexion, 0 to 180 degrees of abduction, and 0 to 90 degrees of external and internal rotation. Flexion or abduction limited to 90 degrees equates to shoulder level. 38 C.F.R. § 4.71, Plate I. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The Board finds that prior to February 22, 2017, the Veteran is not entitled to a compensable rating. A January 2015 VA treatment record indicates that the Veteran reported his shoulder “hurts once in a while” and that his left shoulder pain was tolerable. Moreover, VA records indicate the Veteran’s reported pain was not significant. For example, November 2011 VA records indicate the Veteran did not consider his left shoulder pain “an issue.” In February 2013, the Veteran reported his left shoulder pain was only worse in the morning and declined any further evaluation. A November 2013 medical note indicates the Veteran reported tolerable left shoulder pain. In October 2010, the Veteran underwent a VA shoulder and arm examination and was diagnosed with residuals of a left shoulder ACV joint separation (grade I). Left shoulder flexion was to 180 degrees and abduction was to 180 degrees. Tenderness to palpation of the left ACV joint was noted. No objective evidence of pain or additional limitations after repetitive testing was noted. A left shoulder x-ray showed widening of the left ACV joint. From February 22, 2017, the Veteran is not entitled to ratings in excess of 20 percent for his left shoulder disability or his separately rated left shoulder clavicle or scapular impairment under Diagnostic Code 5003-5201 or Diagnostic Code 5010-5203, respectively. The February 2017 VA shoulder and arm examination indicates left shoulder flexion to 90 degrees and abduction to 85 degrees. No pain or crepitus were noted. There is no evidence of limitation of motion to 25 degrees from the side of the minor extremity, as the Veteran’s left shoulder has limited motion of the arm at shoulder level. The medical evidence also does not show that the Veteran had any malunion of marked deformity or recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements. As such, disability ratings more than 20 percent under Diagnostic Code 5003-5201 or Diagnostic Code 5010-5203 from February 22, 2017 are not warranted. The evidence does not support an additional increased rating under DeLuca. The February 2017 VA examination states the Veteran does not experience flare-ups. The Veteran is able to perform repetitive use testing with no loss or range of motion. No pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use. The examiner stated the Veteran’s left shoulder disorder did not impact his ability to work. Taken together, the weight of the evidence does not support the existence of additional limitation of motion or functional loss beyond what the Veteran is being compensated for under his current rating. For this reason, the Veteran is not entitled to an additional increased rating under DeLuca.] Increased Evaluations for Right Knee Disability The Veteran’s right knee disability is currently rated noncompensable prior to November 17, 2011 and 10 percent thereafter. The right knee disability is rated under Diagnostic Code 5010. Under Diagnostic Code 5010, the disability is rated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. The Board will also consider other Diagnostic Codes that apply to limitation of motion for the knee, Diagnostic Code 5260 and Diagnostic Code 5261 for flexion and extension of the leg. Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable percent rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II (2017). There is no indication of limitation of extension in this case, therefore, Diagnostic Code 5261 is inapplicable. Furthermore, as this disability also concerns limitation of motion, the Board must consider any additional functional loss the Veteran may have sustained by virtue of other factors. The Board considers the same factors previously discussed relating to the Veteran’s right knee disability, more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. 202. Turning to the evidence, during a VA examination in October 2010 for the right knee disability, the Veteran reported his right knee pain had improved. Right knee flexion was to 140 degrees. No objective evidence of pain was noted. No additional limitations after repetitive use testing was noted. An x-ray showed minimal degenerative change in the right patellofemoral joint compartment. The Veteran was diagnosed with right knee patellofemoral syndrome. In November 2011, despite reports of pain and inability to run, a physical examination showed full range of motion, crepitus, and no pain with inversion or eversion of the right knee. An x-ray showed a stable knee with minor spurring. VA medical records from May 2012 show the Veteran reported right knee pain, but no locking or giving out. On physical examination, he had full range of motion and crepitus. In February 2013, the Veteran was noted as continuing physical therapy and non-impact aerobics. No locking, giving out, or falls were reported. His knee examination was positive for crepitus. A subsequent March 2013 physical examination showed normal right knee flexion. A February 2017 VA examination showed right knee flexion to 90 degrees. No objective evidence of pain was noted, but there was crepitus. The Veteran occasionally used a brace depending on his activities, but no joint instability was noted. An x-ray showed degenerative changes in both knees. The examiner reported the Veteran’s right knee disability did not impact his ability to perform any type of occupational task. Prior to November 17, 2011, the Veteran is not entitled to a compensable rating. Although x-ray evidence does confirm the diagnosis of arthritis, his flexion was normal. Therefore, the Veteran is not entitled to a rating of 10 percent under Diagnostic Code 5010. Neither is the Veteran entitled to a rating in excess of 10 percent as of November 17, 2011. Range of motion, at most, was limited to 90 degrees. There is no x-ray evidence of the involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The evidence does not support an additional increased rating under DeLuca. There is no evidence that the Veteran experiences flare-ups. He can perform repetitive use testing with no loss or range of motion. No pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use. The examiner stated the Veteran’s left shoulder disability prevented him from heavy overhead lifting and heavy bench presses. Taken together, the weight of the evidence does not support the existence of additional limitation of motion or functional loss beyond what the Veteran is being compensated for under his current rating. For this reason, the Veteran is not entitled to an additional increased rating under DeLuca. As for other potentially applicable Diagnostic Codes, the Veteran, does not have ankylosis, subluxation or instability, a meniscal condition, removal of semilunar cartilage, malunion of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263 do not apply. 38 C.F.R. § 4.71a. For these reasons, an initial compensable rating prior to November 17, 2011 and a rating in excess of 10 percent thereafter for a right knee disability under Diagnostic Code 5010 is denied because the overall disability picture for the right knee does not more closely approximate the criteria for higher ratings under the applicable Diagnostic Codes. 38 C.F.R. § 4.71a. Therefore, the preponderance of the evidence is against this claim. 38 C.F.R. § 4.3. Extraschedular Considerations The Board also considered the application of 38 C.F.R. § 3.321(b)(1), which is applicable in exceptional cases where schedular evaluations are found to be inadequate. Specifically, the Veteran has asserted that he has difficulty performing overhead activities, pushing and pulling heavy objects, standing for long periods of time, and difficulty walking to class due to pain and associated symptoms of his left shoulder and right knee disabilities. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is therefore adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, the aforementioned rating criteria reasonably describe the Veteran’s left shoulder and right knee disabilities and his symptomatology. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The rating schedule also contemplates factors such as weakened movement; excess fatigability; incoordination; pain on movement; swelling; deformity; instability of station; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59. While the Veteran has complained of difficulty with some activities due to pain (e.g., overhead activities, standing, and walking), such complaints are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as these situations arise because of the above factors. Simply put, there is nothing exceptional or unusual about the Veteran’s situation as opposed to others the same disability ratings for left shoulder and right knee disabilities. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. As such, the Board concludes that referral for extraschedular consideration is not warranted. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. The Court in Yancy v. McDonald, 27 Vet. App. 484, 495 (2016), subsequently held that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran’s disabilities on a collective basis only when that issue is argued by the Veteran or reasonably raised by the record through evidence of the collective impact of the Veteran’s service-connected disabilities. Neither scenario applies to the instant case. REASONS FOR REMAND Service Connection for Left Knee Strain In February 2017, the Veteran underwent a VA examination to assess the nature and etiology of his left knee disability. The VA examiner diagnosed the Veteran with degenerative changes in the left knee. The VA examiner opined that the Veteran’s left knee disability is not caused by or aggravated by his military service. The VA examiner reasoned that there were no complaints or treatment for any left knee condition during military service. The Board finds this opinion and rationale inadequate. The VA examiner’s conclusion is improperly predicated on a lack of documentation in the medical record. See Buchannan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, the VA examiner opined that the Veteran’s left knee disability is not caused by or aggravated by his service connected right knee disability; however, the examiner provided no rationale for this opinion. As such, a new examination is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for a new claims file review with an appropriate medical professional to determine the nature and etiology of the Veteran’s left knee strain. The need for another examination is left to the discretion of the examiner offering the opinion. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate that the claims file was reviewed. The examiner is asked to provide an opinion as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left knee strain is etiologically related to his active service; additionally, whether the Veteran’s left knee strain was caused or aggravated by the Veteran’s service-connected right knee disability. Please note that the absence of evidence of treatment for the claimed condition cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. (Continued on the next page)   2. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel