Citation Nr: 18158296
Decision Date: 12/14/18	Archive Date: 12/14/18

DOCKET NO. 16-54 244
DATE:	December 14, 2018
ORDER
Entitlement to service connection for gout is denied.
Entitlement to service connection for sacroiliac joint (SIJ) dysfunction is denied.
Entitlement to service connection for left hip condition is denied.
Entitlement to service connection for left foot strain is denied.
Entitlement to service connection for right foot strain is denied.
Entitlement to an initial rating not to exceed 30 percent for rotator cuff tendonitis, right (dominant) shoulder, is granted.
Entitlement to an initial rating higher than 20 percent for rotator cuff tendonitis, left (minor) shoulder, is denied.
Entitlement to an initial separate rating for residuals of Muscle Group (MG) injury, right upper extremity (RUE), is granted.
Entitlement to an initial rating higher than 20 percent for thoracolumbar strain and degenerative changes for the period prior to January 21, 2016 and from November 10, 2016 is denied.
Entitlement to an initial rating not to exceed 40 percent for thoracolumbar strain with degenerative changes for the period January 21, 2016 to November 10, 2016 is granted.
Entitlement to an initial rating higher than 10 percent for left knee patellofemoral syndrome (PFS) for the period prior to November 10, 2016 is denied.
Entitlement to an initial rating higher than 10 percent for the period prior to November 10, 2016 for right knee PFS is denied.
REMANDED
Entitlement to service connection for vestibular balance disorder (vertigo) is remanded.
Entitlement to service connection for hypertension is remanded.
Entitlement to service connection for carpal tunnel syndrome (CTS), left wrist is remanded.
Entitlement to service connection for CTS, right wrist is remanded.
Entitlement to service connection for vertigo is remanded.
Entitlement to an appropriate rating for MG injury, RUE, is remanded.
Entitlement to a total rating due to service-connected disability (TDIU) is remanded.
FINDINGS OF FACT
1. The weight of the evidence is against a finding that gout had its onset during active service or is otherwise connected to active service.
2. The weight of the evidence is against a finding of diagnosed SIJ dysfunction currently or at any time during the rating period on appeal.
3. The weight of the evidence is against a finding that the currently diagnosed left hip disorder had its onset during active service or is otherwise connected to active service.
4. The weight of the evidence is against a finding that the currently diagnosed left foot strain had its onset during active service or is otherwise connected to active service.
5. The weight of the evidence is against a finding that the currently diagnosed right foot strain had its onset during active service or is otherwise connected to active service.
6. The rotator cuff tendonitis, right (dominant) shoulder has manifested with painful LOM to midway between the side and shoulder level, and a MG injury throughout the initial rating period.
7. The rotator cuff tendonitis, left (minor) shoulder has manifested with painful LOM to shoulder level throughout the initial rating period.
8. For the period prior to January 21, 2016, the thoracolumbar strain with degenerative changes manifested with motion on forward flexion greater than 0 to 30 degrees. For the period January 21, 2016 to November 10, 2016 it manifested with motion on forward flexion less than 0 to 30 degrees. Since November 10, 2016 it has manifested with motion on forward flexion greater than 0 to 30 degrees.
9. Prior to November 10, 2016, the left knee PFS has manifested with painful noncompensable LOM solely on flexion. Since November 10, 2016, it has manifested with painful LOM of 10 to 120 degrees. 
10. Prior to November 10, 2016, the right knee PFS has manifested with painful noncompensable LOM solely on flexion. Since November 10, 2016, it has manifested with painful LOM of 10 to 120 degrees.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for gout have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017).
2. The criteria for entitlement to service connection for SIJ dysfunction have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303.
3. The criteria for entitlement to service connection for left hip disorder have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303.
4. The criteria for entitlement to service connection for left foot strain have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303.
5. The criteria for entitlement to service connection for right foot strain have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303.
6. The criteria for an initial rating of 30 percent for rotator cuff tendonitis, right (dominant) shoulder, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201.
7. The criteria for an initial rating higher than 20 percent for rotator cuff tendonitis, left (minor) shoulder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5201.
8. The criteria for an initial rating higher than 20 percent for thoracolumbar strain with degenerative changes for the period prior to January 21, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, General Formula, DC 5243.
9. The criteria for an initial rating of 40 percent for the period from January 21, 2016 to November 9, 2016 for thoracolumbar strain with degenerative changes have been met. The criteria for an initial rating higher than 20 percent for the period since November 10, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.400, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, General Formula, DC 5243.
10. The criteria for an initial rating higher than 10 percent for left knee PFS for the period prior to November 10, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260.
11. The criteria for an initial rating higher than 10 percent for right knee PFS have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran’s initial appeal included the issues of service connection for an acquired mental disorder, a right hip disorder, headaches due to service-connected cervical spine disorder, chronic sinusitis, allergic rhinitis, and radiculopathy associated with the cervical and thoracolumbar spine disorders. The AOJ granted those issues prior to certifying the appeals to the Board, and the Veteran did not appeal the assigned initial ratings or effective dates for those disabilities. Hence, those issues are not before the Board and will not be addressed in the decision below. See Goodwin v. Peake, 22 Vet. App. 128 (2008).
Service Connection
Governing Law and Regulations
Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and 
(3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.
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).
Arthritis and certain conditions of the central nervous system are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was “noted” during service or within the applicable presumptive period; (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. 
“Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”).
In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
1. Entitlement to service connection for gout
Discussion
Upon VA examination in November 2016 (11/24/2016 C&P Exam, 6th Entry), the Veteran reported that he was diagnosed with gout of the left great toe in 2010 when he sought treatment for severe swelling and inflammation. He reported no history of any specific trauma. Based on the review of the Veteran’s records, his reported lay history, and the examination results, the examiner opined that any currently diagnosed gout disorder did not have onset in active service or is otherwise causally connected with the Veteran’s active service. See 11/27/2016 C&P Exam, 1st Entry. The examiner noted the entries wherein the Veteran complained of and was treated for right foot numbness and pain. The examiner noted that the absence of findings of inflammation, tenderness pain, and/or LOM of the foot ruled out gout of DJD. The examiner noted that a finding of numbness indicated nerve pathology rather than gout. The same reasoning applied to the 1992 complaints of right foot pain when the Veteran was only 19 years of age, but no findings of swelling or inflammation. Id., at 2.  The examiner then concluded that the in-service complaints were transient in nature.
The AOJ initially denied the claim due to the absence of a diagnosis of gout. See 07/31/2015 Rating Decision-Narrative. As part of his NOD, the Veteran submitted evidence of a diagnosis of gouty arthritis by a non-VA physician. See 07/22/2016 Non-Government Facility, P. 7-8, 21-22. The Board notes that the script indicates gouty arthritis of the left foot (P. 7-8). The x-ray examination report, however, indicates that the physician mistakenly noted the left instead of the right foot, as the left foot x-ray was read as having only shown DJD (P. 21-22). Nonetheless, the VA examiner opined that the July 2016 x-rays did not in fact show gout, as proved by the November 2019 x-rays. The VA examiner noted that the latter x-rays showed no evidence of soft tissue densities or other osseous changes such as punched-out erosions, focal lucencies, or osteopenic changes, all of which are characteristic of chronic gout. See 11/27/2016 C&P Exam, 1st Entry, P. 3.
In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board may favor the opinion of one competent medical expert over that of another, provided the reasons therefor are stated. Evans v. West, 12 Vet. App. 22, 31 (1998); Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Further, while the Board is not free to ignore the opinion of a treating physician, it is not required to automatically accord it more weight. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992).
The Board finds that the VA examiner reviewed all of the Veteran’s records, considered the lay reports, and provided a clear rationale for the opinions rendered. Hence, the Board finds it highly probative and attaches significant weight to it. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, the Board accords the VA examiner’s opinion far more weight than that of the non-VA physician’s diagnosis of gout. In any event, even if current disability is conceded, there is no basis for relating such disorder back to service.  Indeed, the record fails to establish continuity of symptomatology.  Rather, the reported onset of problems was in 2010, almost 2 decades since separation from service.  Furthermore, the VA examiner explained that the in-service complaints did not involve symptomatology typical of gout, such as inflammation.  In sum, the weight of the evidence is against the claim.
2. Entitlement to service connection for SIJ dysfunction
The Veteran asserts that his SIJ was injured in a parachute landing during his active service. He is fully competent to report an injury he may have sustained in active service as well as any treatment he may have received for it. 38 C.F.R. § 3.159(a)(2). Further, the Board acknowledges that the claimed injury is consistent with the circumstances of the Veteran’s active service. Nonetheless, even accepting that such an injury occurred, there still must be evidence of a chronic residual of such an injury, that is, a currently diagnosed disorder. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even though the disability resolves prior to the Secretary’s adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).
The September 2016 examination report reflects that x-rays of the SIJ were  normal. The examiner noted further that the SIJ is part of the lumbosacral spine system. See 09/11/2016 C&P Exam, 2nd Entry, P. 2. Hence, the Board finds that the preponderance of the evidence is against the claim. The Board also notes that service connection is in effect for a thoracolumbar spine disorder. Hence, as discussed later in this decision, the Veteran is compensated for any manifested lumbar spine symptomatology.
3. Entitlement to service connection for left hip disorder
The AOJ did not afford the Veteran an examination in conjunction with this claim and denied it due to the absence of evidence of a currently diagnosed disorder and in-service occurrence, complaints, or treatment for a left hip disorder. See 07/31/2015 Rating Decision-Narrative, P. 13. In his NOD, the Veteran conceded the fact that there are no entries in his service treatment records (STRs) related to left hip complaints or findings, but adds that it was not common for infantrymen to seek treatment for every disorder. Hence, he relies on the circumstances of his active service to support his claim. See 01/28/2016 NOD, 2nd Entry, P. 4. An examination was conducted during the development of the Veteran’s appeal.
The August 2016 examination report (09/11/2016 C&P Exam) reflects a diagnosis of bursitis of both hips; x-rays were read as negative for degenerative or traumatic arthritis. Id., P. 8. The examiner opined that it was not at least as likely as not that the left hip bursitis had onset in active service or was otherwise causally connected to active service. The examiner noted that, as confirmed by the Veteran, the STRs contained no entries related to left hip complaints or treatment or other evidence of a chronic condition, and that the x-rays showed no evidence of abnormality. See 09/11/2016 C&P Exam, 2nd Entry. In a subsequent review of the Veteran’s hips, the examiner concluded that there was evidence in the STRs that met the medical criteria of a chronic condition of the right hip: that is, complaints of right hip pain and findings of tenderness to palpation of the greater trochanter, all of which was due to the rigors of road marches, running, and other physical activity. These symptoms, noted the examiner, persisted for at least 5 months, which constituted a chronic process. See 11/28/2016 C&P Exam, 1st Entry. This was not the case, however, concerning the left hip.
The examiner noted that the entries related to the complaints of pain, etc., after a 20-mile march, etc., did not include any left hip-related complaints. Further, a 1992 entry related to a fall on the left hip while roller skating did not result in any positive findings of the left hip; and, the Veteran’s subsequent history of long marches, running, and other rigorous physical activities, including parachuting, did not result in complaints of left hip pain or a diagnosis of bursitis. The examiner explained that the bursa acts like a shock absorber for gliding body parts such as tendons or muscles over bone. The rubbing can result in irritation of the bursa. The examiner noted the absence of any history of left hip joint complaints or diagnosis of left hip bursitis despite such findings and a diagnosis on the right side. Hence, the examiner opined that the Veteran’s currently diagnosed left hip bursitis is likely due to the Veteran’s post-service activities. The examiner opined further, that the left hip bursa is entirely separate from the right hip; hence, there is no causal or aggravating relationship with the right hip. See 12/15/2016 C&P Exam, 1st Entry.
The Veteran finds it unclear why service connection was granted for the right hip but not the left hip when he experienced pain in both during service. He asserts further that the claim should be granted because of his 20-plus years of active service and the wear and tear on his joints that he endured during those years. Further, he asserted that he was convinced that his currently diagnosed left hip bursitis was due to the wear and tear from load-bearing duties that he performed. See 05/19/2017 VA Form 9, P. 2.
The Board acknowledges that a claim may not be disallowed solely on the basis of the absence of medical documentation. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Emphasis added). In this case, the examiner fully explained the significance of the absence of in-service complaints of left hip pain. The Board also notes that the examiner’s explanation also sufficiently showed the absence of in-service impairment due to left hip pain. See Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018) (“pain is an impairment because it diminishes the body’s ability to function, and... pain need not be diagnosed as connected to a current underlying condition to function as an impairment,” thus meeting the current disability requirement). It is also evident from the examiner’s rationale that the Veteran’s lay reported history was fully considered.
Finally, the Board acknowledges the Veteran’s opinion that his left hip bursitis is due to the wear and tear of his active service. As noted, he is competent to report the history and symptoms he may have experienced. 38 C.F.R. § 3.159(a)(2). Nonetheless, the Veteran’s lay reports may be tested for accuracy and veracity. First, the Board finds that the weight of the evidence is against the Veteran’s lay claims of in-service complaints of left hip pain. Although the Veteran asserts that infantrymen did not seek treatment for every minor ailment of pain, the fact is the STRs do note instances of his seeking treatment for hip complaints where he had the opportunity to report left hip symptoms. Further, as part of his medical evaluation for retirement, the Veteran certified that he did not have any illness or injury for which he did not seek treatment. See 04/06/2015 STR-Medical, 6th Entry, P. 17.
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. See generally Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board finds that opining on the etiology of bursitis of a joint requires medical training. There is no evidence that the Veteran has medical training. Hence, his opinion on the issue is not probative. The Board finds that the preponderance of the evidence is against the claim. 38 C.F.R. § 3.303.
4. Entitlement to service connection for left foot strain
Entries in the STRs note the Veteran’s complaints of and treatment for foot pain and minor injuries, to include having to wear a short cast on the left foot in 1995. See 04/06/2015 STR-Medical, 1st Entry, P. 1, 23; 2nd Entry, P. 26, 39, 42-44; 4th Entry, P. 27.
The evidence of record shows a current diagnosis of strain of each foot. A July 2015 VA examination report (07/09/2015 C&P Exam, 2nd Entry) notes the Veteran’s complaints of pain on the dorsal aspects of both feet, more on prolonged weight bearing. The examiner also noted the entries in the STRs, including one instance of a diagnosis of metatarsalgia and a calcaneal bruise, and that they did not indicate any follow-up for the symptoms of which the Veteran complained. The examiner opined that those facts suggested that the documented in-service foot problems were acute conditions without long-term sequelae or complications. The examiner noted further that the January 2012 Report of Medical Assessment did not note a chronic foot condition. The examiner acknowledged the Veteran’s lay report that he had a chronic bilateral foot condition that had onset in active service, but he opined that the evidence reviewed did not support the Veteran’s belief. Hence, the examiner opined that it was not at least as likely as not that the currently diagnosed foot strain had onset in active service or was otherwise causally connected to active service. Id., P. 3.
The Veteran asserts that his current left foot disorder is the result of wear-and-tear from his in-service activities.  The Board hereby incorporates here by reference the examiner’s findings, the Veteran’s assertions, and the Board’s discussion of the foot x-rays, and lay competency, etc. See 11/24/2016 C&P Exam, 6th Entry. Hence, while there is evidence of a currently diagnosed bilateral foot disorder, the Board finds that the preponderance of the evidence shows that it did not have onset in active service or that it is connected with active service. 38 C.F.R. § 3.303.
5. Entitlement to service connection for right foot strain
The above discussion of the left foot strain is incorporated here by reference.

Increased Rating
Applicable Law and Regulation
Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns evaluations based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 ; 
38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.
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; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991).
In general, the degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found as concerns the severity of the disability. See O’Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).
VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, which pertain to functional impairment, when rating disabilities evaluated on the basis of LOM. The U.S. Court of Appeals for Veterans Claims has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional loss of ROM due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59.
6. Entitlement to an initial rating higher than 20 percent for RC tendonitis and bicipital tendon tear with muscle atrophy, right shoulder
Rating Criteria
Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. A distinction is made between major (dominant) and minor upper extremities for rating purposes. In the instant case, the examination reports reflect that the Veteran is right-handed, which means that the right shoulder is the major, or dominant, shoulder. The applicable criteria for the major side provide that shoulder motion limited to 25 degrees from the side warrants the maximum, 40 percent rating; motion limited to midway between the side and shoulder level warrants a 30 percent rating; and, motion to shoulder level warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5201.
Normal ROM for the shoulder is 0 to 180 degrees for forward flexion (elevation) and abduction; and, 0 to 90 degrees for internal and external rotation. See 38 C.F.R. § 4.71a, Plate I.
Discussion
The STRs document the fact that the Veteran’s right shoulder was injured when it became entangled during his exit from an aircraft for a parachute jump. The Veteran reported that his treatment included separate instances of intensive physical therapy. The examination report (07/15/2015 C&P Exam, 2nd Entry) reflects that, based on the Veteran’s reported history, the review of his records, and the examination results, the examiner entered diagnoses of rotator cuff (RC) tendinitis and osteoarthritis of the acromioclavicular joint (ACJ). The examiner noted the Veteran’s complaints of continued constant shoulder pain, and he reported that he compensated for the right shoulder by more use of the left shoulder, and that his symptoms resulted in functional loss in overhead and lifting activity. The Veteran reported that flare-ups occurred when he tried to lift more than 7 Kg (15.4 lbs). Such activity caused pain that would last approximately 3 days. He denied the use of any assistive device. Id., P. 3, 11.
Physical examination revealed ROM of 0 to 85 degrees on flexion and abduction, and 0 to 90 degrees on internal and external rotation, with evidence of pain on flexion and abduction, which the examiner felt contributed to functional loss. On repetition, flexion and abduction were reduced by 15 degrees.  There was tenderness or pain on deep palpation of the anterio-superior shoulder, and evidence of crepitus. There was no decrease in muscle strength, as it was 5/5 on both flexion and abduction, but some muscle atrophy was noted at 10 cm above or below the elbow. The RUE measured 27.5 cm versus 29 cm on the LUE. Id., P. 8. The several diagnostic tests (i.e., Hawkins impingement and empty can test, etc.) were positive. The examiner noted that a March 2015 MRI examination report revealing supraspinatus and subscapularis tendinopathy and degenerative changes of the ACJ. Id., P. 11.
The AOJ determined that the objective findings on clinical examination approximated motion to shoulder level and assigned an initial rating of 20 percent. See 09/22/2015 Rating Decision-Narrative, P. 3. The Veteran disputed the initial rating on two bases, asserting that he should have a received a separate rating for the residuals of a right muscle tear and disputing the examiner’s opinion that arthritis was not a component of his shoulder disability picture. See 01/28/2016 NOD, 1st Entry. The Board will discuss objection 1 later in this decision.
The AOJ asked the examiner to elaborate on the arthritis findings and to delineate the right shoulder symptoms that were deemed service-connected. In a September 2016 report (09/16/2015 C&P Exam, 1st Entry), the examiner opined that all of the symptoms and findings noted at the July 2015 examination were part of the service-connected right shoulder disorder, but although ACJ arthritis was diagnosed, it was asymptomatic at the examination. Thus, the other findings on examination led the examiner to diagnose the RC tendinitis. Id., P. 2.
The Board finds that the Veteran has not been prejudiced by the RO’s characterization of the disability, as arthritis is also rated on the basis of LOM. See 38 C.F.R. § 4.71a, DC 5003. The Board also notes that the examiner noted that the ROM of the right shoulder at the July 2015 examination was above shoulder level, which was incorrect. As set forth earlier, the ROM on flexion and abduction was to 85 degrees which, contrary to the AOJ’s determination, is just below shoulder level. See 38 C.F.R. § 4.71a, Plate I. The Board also finds that the AOJ committed error when it determined that the Veteran was not entitled to a higher rating even when Mitchell was applied. The examination report reflects that the examiner estimated a total additional loss of 15 degrees in ROM on flexion and abduction due the Veteran’s reported flare-ups, repeated use, and use over time. Sharp v. Shulkin, 29 Vet. App. 26 (2017). That assessment reduced the Veteran’s ROM to 0 to 70 degrees on flexion and abduction. Flexion or abduction to 70 degrees more nearly approximate motion to midway between side and shoulder level and a 30 percent rating for the dominant side. 38 C.F.R. §§ 4.7, 4.10, 4.45, 4.45, 4.71a, Plate I; 4.71a, DC 5201. Regardless of whether shoulder LOM is on flexion or abduction, only one rating is allowable. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). Hence, the Board allows a 30 percent rating for the right, dominant, shoulder for the entire rating period.
7. Entitlement to an initial rating higher than 20 percent for RC tendonitis, left (minor) shoulder
Rating Criteria
For the minor side, shoulder motion limited to 25 degrees from the side warrants the maximum, 30 percent rating; and, a 20 percent rating for motion limited in the other planes. 38 C.F.R. § 4.71a, DC 5201.
Discussion
The examination report reflects that the objective findings on clinical examination of the left shoulder were identical to those for the right, to include the examiner’s estimate of the additional loss of ROM due to repeat use, flare-ups, and repeat use over time. Hence, the Board incorporates by reference the above discussion on the right shoulder. Thus, the Board finds that the preponderance of the evidence of record shows that the left, minor, shoulder has more nearly approximated the assigned 20 percent rating for the entire rating period.  This is the rating percentage already in effect.  A higher evaluation is not warranted.
8. Entitlement to an initial separate rating MG injury, right shoulder
As noted earlier, the other basis of the Veteran’s disagreement with the initial rating of the right shoulder is that he also should have received a separate rating for the residuals of the right biceps tendon rupture. The Veteran is entitled to have all distinct symptoms of his disability rated. Doing so does not violate the prohibition of pyramiding. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also 38 C.F.R. § 4.14. The Board’s review of 38 C.F.R. § 4.55 does not reveal any prohibition in combining a MG injury rating with a LOM rating, where indicated by the evidence.
STRs document the Veteran’s right shoulder injury in February 2000. It was diagnosed as a partial bicep rupture and was treated with a sling, pain relievers, and physical therapy. At a follow-up three days later, X-rays were normal and the Veteran could extend the arm fully, and there was no arm strength but normal hand strength. See 04/06/2015 STR-Medical, 4th Entry, P. 29, 36. The retirement medical assessment reflects that right shoulder strength was reduced at 4/5. The July 2015 examination report reflects that there was no decrease in strength. See 07/15/2015 C&P Exam, 2nd Entry, P.8. In any event, the disability for which service connection was granted included bicipital tear with muscle atrophy. Hence, the Veteran is entitled to a medical assessment to determine if that facet of his right shoulder disability is compensable. This issue is discussed further in the remand section of this decision below.
9. Entitlement to an initial rating higher than 20 percent for thoracolumbar strain with degenerative changes 
Rating Criteria
The earlier discussion on musculoskeletal disorders is incorporated here by reference. For the thoracolumbar spine, normal ROM on forward flexion is 0 to 90 degrees; backward extension, 0 to 30 degrees; lateral flexion and lateral rotation, 0 to 30 degrees. See 38 C.F.R. § 4.71a, Plate V.
Spine disabilities are rated under the General Formula. Regarding the lumbar spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating applies if forward flexion of the thoracolumbar spine is 0 to 30 degrees or less. A 20 percent rating applies if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the CROM of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Formula. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., Note (1).
Discussion
The Board first observes that as set forth above, once a thoracolumbar spine disability is rated at 20 percent or above, CROM has no bearing on a rating. Hence, the Board will not note CROM when discussing the Veteran’s examination results.
The July 2015 examination report (07/07/2015 C&P Exam, 2nd Entry) reflects diagnoses of thoracolumbar strain and degenerative changes. The Veteran complained of almost-constant low-, upper-, and mid-back pain which was aggravated by sudden movements, prolonged position, lifting, and physical activity. He described flare-ups that occurred twice a week and lasted 4 to 5 hours, for which he had to remain in bed until the symptoms subsided. Physical examination revealed motion on forward flexion of 0 to 70 degrees with pain, which the examiner opined contributed to functional loss. With repetitive motion flexion was to 60 degrees; on consideration of flare-ups it was to 50 degrees.  There was positive tenderness and muscle spasm but not severe enough to change the Veteran’s gait or spinal contour. Id., P. 4-6. The examiner noted that x-rays of the thoracic spine were unremarkable; and, lumbosacral spine x-rays revealed no evidence of listhesis, spondylosis, or disc space narrowing but a small anterior marginal spur at the L4 vertebral body. Id. P. 9-10.
The AOJ assigned the Veteran’s initial rating under DC 5242, which evaluates spine degenerative arthritis. See 38 C.F.R. § 4.71a, General Formula. Degenerative arthritis is rated on the basis of LOM. See 38 C.F.R. § 4.71a, DC 5003.
The Board affirms the AOJ’s assigned 20 percent rating throughout the rating period on appeal. As set forth above, motion on forward flexion was greater than 0 to 60 degrees, and CROM was greater than 120 degrees, which normally garners a 10 percent rating. The AOJ correctly applied the examiner’s findings on repeat use and his estimate of additionally lost degrees on ROM due to flare-ups, repeated use, and use over time. The examiner estimated flexion to 50 degrees at its worst, which warrants a 20 percent rating. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. The preponderance of the evidence does not show that a higher rating was approximated. The examiner noted that the Veteran denied the use of any assistive devices, he had not lost the use of his spine, and that there was no evidence of IVDS. See 07/07/2015 C&P Exam, 2nd Entry, P. 9-10.
In his NOD (01/28/2016 NOD, 2nd Entry), the Veteran asserted that the 20 percent did not adequately compensate him for the severity of his disability. His noted specifics, however, primarily focused on the neurological symptoms of the thoracolumbar disability for which he was compensated during the development of his appeal. His reliance on the time period the disability as existed is misplaced, as disability ratings are based on the current assessment of any chronic residuals.
In support of his appeal, the Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by a non-VA physician (08/03/2015 VA Examination, 1st Entry). Although the digital file notes August 3, 2015 as the date of VA receipt, the DBQ reflects that the physician signed on January 21, 2016. Id., P. 5. The DBQ reflects that thoracolumbar spine motion on forward flexion was 0 to 20 degrees. Id., P. 1. That finding reflects significantly more impairment than found at the July 2015 examination. Hence, the Board finds that the orthopedic symptoms of the thoracolumbar spine disability manifested at the 40 percent rate as of the noted date of the examination, January 21, 2016. 38 C.F.R. §§ 3.400, 4.10, 4.71a, General Formula. That is the maximum allowable rating for the orthopedic symptoms based on LOM. The examiner also noted that there was evidence of IVDS, and that the Veteran had experienced incapacitating episodes of at least 1 week but less than 2 weeks. DBQ, P.5. The Board notes no evidence in the claims file of bedrest prescribed by a physician. Nonetheless, the period of incapacitating episodes noted by the physician would warrant only a 10 percent rating. 38 C.F.R. § 4.71a, DC 5243. Hence, the LOM rating grants the Veteran the higher benefit.
Another VA examination was conducted in November 2016. The examination report (11/25/2016 C&P Exam, 1st Entry) confirmed the diagnosed disability as thoracolumbar strain and degenerative arthritis. The examiner noted the July 2015 VA examination but not the January 2016 non-VA assessment. The Veteran complained of sharp pain of 8/10 intensity at the mid-back area. He reported further that use of pain relievers and muscle relaxers reduced it to 2/10; and, that his functional loss was difficulty using steps and lifting and carrying heavy loads. Physical examination revealed no tenderness or pain to palpation of the soft tissue. ROM on forward flexion was to 70 degrees with pain. The examiner opined, however, that based on repetitive-use testing and the Veteran’s description of his functional loss, flare-ups, and use over time, that the Veteran would experience a total additional loss of 15 degrees of flexion. Id., P. 5. This means that the Board will use 55 degrees as the ROM on forward flexion. See 38 C.F.R. §§ 4.40, 4.45; see also Sharp, 29 Vet. App. 26. Forward flexion of the thoracolumbar spine to 55 degrees warrant a 20 percent rating. 38 C.F.R. § 4.71a, General Formula. Hence, the preponderance of the evidence shows that the Veteran’s thoracolumbar spine more nearly approximated a 20 percent rating as of the date of the November 2016 examination, November 10th. A higher rating was not met or approximated, as ROM on forward flexion was greater than 0 to 30 degrees, and the examiner noted that there was no evidence of IVDS. See 11/25/2016 C&P Exam, 1st Entry, P. 8. The examiner noted further that he observed the Veteran reach his feet/flipflop slippers, and retrieve his dropped cell phone in one smooth motion. Id., P. 11. The examiner’s observation suggests that the Veteran gave less than a credible effort during the examination.
On his Substantive Appeal (05/19/2017 VA Form 9), the Veteran again asserted that 20 percent was not an adequate rating for the thoracolumbar spine disability. As discussed above, the Board has allowed a higher rating for the period where the disorder manifested at a more severe rate. Otherwise, the preponderance of the evidence is against a rating higher than 20 percent.
10. Entitlement to an initial rating higher than 10 percent for PFS of each knee
The Veteran asserts that each of his knees should be rated at 20 percent. He does not, however, provide any specific basis to support the assertion other than the disability is more severe than 10 percent. For the reasons discussed below, the Board rejects the assertion.
Legal Requirements
The general principles on rating disabilities and those specifically applicable to musculoskeletal disabilities set forth earlier are incorporated here by reference.
Rating Criteria
The AOJ each knee on the basis of LOM. Normal ROM for the knee is 0 to 140 degrees. See 38 C.F.R. § 4.71a, Plate II.
Limitation of flexion of the knee warrants a noncompensable rating if flexion is limited to 60 degrees; a 10 percent rating if flexion is limited to 45 degrees; a 20 percent rating if flexion is limited to 30 degrees; and, a 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. 
Limitation of extension of the knee warrants a noncompensable rating if extension is limited to 5 degrees; a 10 percent rating if extension is limited to 10 degrees; a 20 percent rating if extension is limited to 15 degrees; a 30 percent rating if extension is limited to 20 degrees; a 40 percent rating if extension is limited to 30 degrees; and, a 50 percent rating if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Separate ratings are authorized for compensable LOM on flexion and extension where shown by the evidence. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59,990 (2005).
Discussion
The examination report (07/07/2015 C&P Exam) reflects complaints of intermittent mild to moderate pain, sometimes with swelling, aggravated by physical activity and prolonged walking. He described flare-ups that occurred once a month and lasted a half-day after physical activity. The flare-ups consisted of severe pain. The examiner one instance of left knee effusion which did not require aspiration. Otherwise, there was no history of meniscus symptoms, and he denied use of assistive devices. Physical examination revealed positive tenderness on pressing the patella and surrounding the patella of each knee. There also was evidence of crepitus. ROM was 0 to 125 degrees with pain for each knee. The examiner noted that the pain contributed to functional loss. Id., P. 6.  With flare-ups, flexion was estimated to 115 degrees.
ROM of 0 to 125 degrees warrants a noncompensable rating, as flexion was greater than 0 to 45 degrees, and extension was normal. 38 C.F.R. § 4.71a, DCs 5260, 5261. The examiner also estimated, however, that the Veteran would experience an additional loss of 10 degrees of flexion of each knee due pain during flare-ups and repeat use over time. Examination report, P. 7-8. Although 0 to 115 degrees is still noncompensable LOM, the examiner noted that the ROM was with pain. Hence, the AOJ correctly assigned the minimum compensable rating of 10 percent for each knee for functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45; see also Mitchell, 25 Vet. App. 32; DeLuca, 8 Vet. App. 202. A higher rating was not met or approximated, as ROM on extension was normal, and the LOM on flexion was greater than 0 to 45 degrees. Further, where LOM on both flexion and extension are noncompensable, a claimant is entitled to only one compensable rating for both based on painful motion. See generally VAOPGCPREC 9-98, Para. 1 (Aug. 1998).
The November 2016 examination report (11/24/2016 C&P Exam, 2nd Entry) reflects that the Veteran had flare-ups consisting of a dull aching pain in each knee. He used rest, took the weight off, ice, compresses, a heating pad, and over-the-counter medication for relief of his symptoms. He described essentially the same functional loss due to his symptoms as he did at the 2015 examination: difficulty going up and down steps, squatting, and carrying or lifting heavy loads. Id., P. 2. Physical examination revealed no evidence of localized tenderness or pain to palpation of the joint of either knee, but there was evidence of crepitus. ROM of each knee was 0 to 130 degrees with pain, but the examiner stated that it did not contribute to functional loss. Id., P. 2-3. strength was 5/5 on flexion and extension.
As stated earlier, ROM of 0 to 130 degrees reflects noncompensable ROM on flexion. 38 C.F.R. § 4.71a, DC 5260. The examiner noted that repetitive-use testing revealed no additional loss of ROM. Hence, a higher rating was not met or approximated on that basis. See 38 C.F.R. §§ 4.40, 4.45. The examiner did estimate that the Veteran would experience an additional loss of 5 degrees on flexion and extension of each knee due to repeated use over time. Id., P. 4. Extension ROM of 5 to 125 degrees warrants a noncompensable rating for LOM on both extension and flexion. 38 C.F.R. § 4.71a, DCs 5260, 5261. The examiner also estimated another 5-degree loss of ROM on both flexion and extension due to the Veteran’s reported flare-ups. See Examination report, P. 5-6.  Thus, the estimated total loss on both extension and flexion results in ROM of 10 to 120 degrees. The Board notes that extension limited to 10 degrees rises to the level of a compensable (10 percent) rating under diagnostic code 5261.  However, GC 9-04 does not authorize assignment of additional ratings here, as such would require a factual showing of compensably limited range of motion in both flexion and extension (i.e, limited to at least 45 degrees for flexion along with limitation to at least 10 degrees extension).  The 10 percent rating presently in effect for each knee, as explained previously, contemplates painful motion, and not compensably limited flexion of either knee.
Additionally, the examination report reflects that there was no evidence of instability or cartilage symptoms of either knee. Hence, there is no factual basis for a separate rating for instability or locking or effusion of either knee. See 38 C.F.R. § 4.71a, DC 5257, 5258.
In sum, there is no basis for assignment of either increased or separate ratings for either knee, for any portion of the rating period on appeal. 
REASONS FOR REMAND
1. Entitlement to service connection for vertigo
The record reflects a diagnosis of vertigo, probably secondary to semi-circular canal fistula, secondary to barotrauma, by a non-VA physician (07/22/2016 Non-Government Facility, P. 4, 11). The November 2016 examination report (11/17/2016 C&P Exam, 1st Entry) references that finding.  The examiner then concluded that any current vertigo was not related to service.  The examiner acknowledged the lay history in which the Veteran explained that he had dizziness starting in service.  However, the examiner then noted that no diagnosis or treatment was rendered until 2015.  While accurate, it appears the examiner’s opinion was improperly based solely on the lack of documented treatment, rendering it inadequate and necessitating another examination.
2. Entitlement to service connection for hypertension is remanded.
The AOJ did not afford the Veteran an examination on this issue prior to denying it. The Board notes, however, that the STRs dated in February 2004 reflect a blood pressure reading of 145/95, and that he was undergoing a blood pressure check, though there are no subsequent related entries. See 04/06/2015 STR-Medical, 3rd Entry, P. 22, 30. Hence, the Veteran should be afforded an examination on this issue. See 38 C.F.R. § 3.159(c)(4). 
3. Entitlement to service connection for bilateral CTS.
An August 2016 VA examination report reflects a negative nexus opinion on the CTS claim, but the opinion only addressed service connection on a secondary basis as due to the cervical spine disorder; and the rationale on that basis did not address whether a service-connected disability aggravated the CTS. The Veteran’s lay report of his symptoms and the non-VA examination result require additional medical input.
4. Entitlement to an appropriate rating for MG injury.
This disability needs to be medically assessed to determine the MG(s) affected and the severity of any residuals.
5. Entitlement to a TDIU.
The evidence of record, including the Veteran’s written submissions, raises this issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009).
The matters are REMANDED for the following action:
1. Send the claims file to the examiner who conducted the November 2016 vertigo examination, or another equally qualified examiner. Ask the examiner to provide an addendum that addresses the July 2015 findings of the non-VA physician that the Veteran had vertigo, probably secondary to semi-circular canal fistula, secondary to barotrauma. Please clarify whether a current diagnosis exists and again opine whether it is at least as likely as not that any present vertigo is related to service, which does not wholly rely on the absence of documented treatment and which considers the lay evidence of a history of dizziness beginning in service.  If a substitute examiner advises that the requested opinion cannot be rendered without an examination, the AOJ will arrange it. 
2. The AOJ shall arrange an examination by an appropriate examiner to determine if the Veteran has currently diagnosed hypertension disease. If so, the examiner should determine the date of onset of the disease and, if the date of onset was more than one year after separation from active service, to opine on whether there is at least a 50 percent probability that any currently diagnosed hypertension is causally connected to active service. A full explanation must be provided for all opinions rendered.
3. Send the claims file to the examiner who conducted the August 2016 CTS examination and rendered a negative nexus opinion. Ask the examiner to opine on whether there is at least a 50 percent probability that the Veteran’s bilateral CTS had onset in active service. If the answer is no, is there is at least a 50 percent probability that it is otherwise connected to active service?  The Veteran’s lay report of history must be considered.
If the examiner answers in the negative on the issue of direct service connection, ask he or she to opine on whether there is at least a 50 percent probability that the cervical spine, or other service-connected disability, chronically worsens the CTS. If so, please provide a baseline of aggravation in terms of a percentage. A full explanation must be provided for all opinions provided.
4. The AOJ shall send the claims file to an appropriate examiner to determine the MG of which the RUE bicep tendon is a part, and to assess the severity of the injury. If the examiner requires an examination of the Veteran to do so, the AOJ shall arrange the examination. Afterwards, the AOJ shall assign an appropriate rating for the residuals of the designated MG injury. 
5. After all of the above is completed, the AOJ shall determine if either or all of the Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment.


 
Eric S. Leboff
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	W.T. Snyder