Citation Nr: 1806362 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 11-16 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Restricted Access Claims Center (RACC) in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for back pain, to include as secondary to post hysterectomy with left salpingo-oophorectomy. 2. Entitlement to service connection for neck pain. 3. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome, right knee. 4. Entitlement to a rating in excess of 20 percent for rotator cuff and bicipital tendinitis, right shoulder with arthritis. 5. Entitlement to a rating in excess of 10 percent for residuals of right wrist fracture with degreased range of motion. ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Army Reserves with active duty for an unverified period of time. However, the Board notes that a July 1996 Reenlistment Document notes that the Veteran had five years and four months of prior active duty service and two years six months of prior inactive duty service. Accordingly, the Board finds that the determination by the Regional Office that the Veteran's only period of active duty was from March 30, 1992 to June 30, 1992, to be inaccurate and has determined that the Veteran had at least five years and four months of active duty service prior to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Jurisdiction of the Veteran's claim was subsequently transferred to the RACC located in St. Paul, Minnesota. A subsequent rating decision in January 2018 increased the Veteran's rating from 10 to 20 percent for rotator cuff and bicipital tendinitis, right shoulder with arthritis and also increased the Veteran's rating from 0 to 10 percent for residuals of right wrist fracture with degreased range of motion, among other things. See, January 2018 rating decision. The issues of entitlement to service connection for back pain and neck pain, and entitlement to increased ratings for patellofemoral syndrome, right knee, and for rotator cuff and bicipital tendinitis, right shoulder with arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's residuals of right wrist fracture are manifested by complaints of pain and objective evidence of decreased range of motion. However, there is no evidence of record to indicate favorable or unfavorable ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of right wrist fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5215 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. 38 U.S.C. § 5103(a). Here a letter sent to the Veteran in May 2009, plus additional development letters, satisfied the VCAA notice requirement for her increased rating claim as they provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. While the Veteran may not have been provided with adequate notice before all the claims were adjudicated, the Board finds that providing her with adequate notice in the above letters followed by a readjudication of the claims in the January 2018 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, the Veteran has had the opportunity to allege that notice in this case was less than adequate and she has not done so. See Goodwin v. Peake, 22 Vet. App. 128 (2008). As such, no further discussion of VA's duty to notify is necessary. VA also has a duty to assist the Veteran in the development of her claims. This duty includes assisting the Veteran in the procurement of pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained with respect to her claim for entitlement to an increased rating. While it appears that some of the Veteran's service treatment records and personnel records have not been located, her post-service VA treatment records have been obtained and associated with the record. She has not indicated that there are any additional records that VA should seek to obtain on her behalf. The Veteran was most recently provided an examination in connection with her claim in February 2016. A review of the examination report shows that it contains sufficient clinical findings and discussion of the history and features of the disabilities to constitute an adequate medical examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board recognizes that, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA medical examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board has also considered whether the recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), in which an examiner must provide an opinion regarding additional range of motion loss due to pain, would require a remand for a new VA examination. However, in this case, findings of greater limitation of motion would not help the Veteran because a rating in excess of 10 percent for a wrist disability requires either favorable or unfavorable ankylosis and additional range of motion loss due to weight bearing or nonweight-bearing, or pain on use or during flare-ups would not result in the Veteran receiving a higher disability rating. Accordingly, a remand in order to comply with Correia and Sharp is not warranted. As the Veteran has not identified any additional evidence pertinent to her claim, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103 (a), or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of her claim. II. Increased Rating The Veteran asserts that she is entitled to a rating in excess of 10 percent for her service-connected residuals of right wrist fracture. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. §§ 4.2, 4.6. The Veteran's right wrist disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5215. The 10 percent rating currently assigned is the maximum rating possible under Diagnostic Code 5215. Therefore, the Board finds that the Veteran is only entitled to a higher rating if her right wrist disability is manifested by favorable or unfavorable ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2017); Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). While the most competent medical evidence of record shows that the Veteran continues to receive treatment for her right wrist disability, the evidence fails to show a diagnosis of either favorable or unfavorable ankylosis of the right wrist. Specifically, the Veteran was most recently afforded a VA examination in connection with her claim in February 2016, at which time the examiner opined that the Veteran did not have ankylosis of the right wrist. This medical opinion is not contradicted by another medical evidence of record. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). While the Board notes that the Veteran is competent to report her symptoms of painful movement, the Board does not find that the Veteran has the proper medical training to diagnosis ankylosis. As the Veteran does not have a diagnosis of ankylosis, the Board may not rate her service-connected disability as ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997). Therefore, the Board finds that the most probative evidence of record shows that the Veteran does not have ankylosis of the right wrist. Accordingly, the Board finds that a rating in excess of 10 percent for the Veteran's residuals of right wrist fracture with degreased range of motion is not warranted. ORDER Entitlement to a rating in excess of 10 percent for residuals of right wrist fracture with degreased range of motion is denied. REMAND While the Board sincerely regrets further delay, a remand for additional development is required with respect to the Veteran's remaining claims for entitlement to service connection and for increased ratings. I. Incomplete Military Personnel Records As stated previously, the Board finds the conclusion of the RO that the Veteran only had a period of three months of active duty to be factually inaccurate. In this regard, the Board notes the Veteran's July 1996 Reenlistment Document which reflects five years of prior active military status and her Leave and Earnings Statements for the period of time from October 1992 to June 2000 which indicate that she was receiving benefits reserved for members of active duty status. See, July 1996 Reenlistment Document; military pay documents submitted by the Veteran in June 2016. The Board notes that although there were several requests to furnish the Veteran's records, the requests only included the time periods of February 1, 1989, to June 07, 1989, and from March 30, 1992, to June 30, 1992, and did not include the Veteran's additional period of active duty service. Additionally, the Board notes that when no records are located at "Code 13", pursuant to VA Adjudication Procedures Manual, M21-1, III.iii.2.D.3.b, when records that should be at the Records Management Center (RMC) cannot be located there or elsewhere, a request using Personnel Information Exchange System (PIES) code M04 is appropriate, to include for processing claims with an electronic file until the National Personnel Records Center (NPRC) creates an alternative request code. The Board also notes that the records at "Address Code 13" were not sent because "the record needed to respond has not yet been retired to Code 13." While the request was apparently forwarded to "Code 11" for reply, there is nothing in the record to indicate that a follow-up to "Code 11" was ever made. Accordingly, a request for the Veteran's records using PIES code M04 should be made on remand and an additional search at "Address Code 11" must be conducted. Accordingly, while the Veteran's appeal is in remand status, the RO is directed to complete additional development as outlined below with respect to the Veteran's periods of service. Specifically, the Veteran's periods of Active Duty of Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) should be determined during her period of inactive duty and additional steps should be taken to verify the Veteran's entire period of active duty service, ending in June 2000. II. Entitlement to Service Connection for Back and Neck Pain With respect to the Veteran's claim for entitlement to service connection for both back and neck pain, the Board notes that to date, the Veteran has not been afforded a VA examination for either claim. The Board notes that the Veteran indicated that she suffered from recurrent back pain during a November 1995 periodic examination. Additionally, the Board notes that this examination took place during a period of time that the Board finds that the Veteran was on active duty. In the present case, the Veteran is currently treated for back and neck pain, has made lay statements that her active duty service caused her current disabilities, and there is note of recurrent back pain during a period of time that the Board has recognized as active duty service. However, as the evidence of record does not contain sufficient competent medical evidence to decide the service connection claims, the Board finds that providing the Veteran with an examination for the purpose of obtaining a medical opinion concerning a possible relationship between the Veteran's claimed disabilities and her military service is appropriate in this case. 38 C.F.R. § 3.159(c)(4)(2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that the Veteran submitted correspondence in October 2015 in which she stated that she believed that her back disability was the result of a loss of bone density due to her service-connected post hysterectomy with left salpingo-oophorectomy. Accordingly, an examination is warranted to determine whether or not the Veteran's hysterectomy either caused or aggravated the Veteran's current back disability. III. Entitlement to Increased Ratings With respect to the Veteran's claim for entitlement to increased ratings for her service-connected right knee and right shoulder disabilities, Board notes that while the Veteran's claim was pending, two precedential decisions were issued which also require the Veteran's claim to be remanded. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (the Court) held that in order for an examination to be adequate, it must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. A review of the Veteran's last VA examination in February 2016 indicates that a new examination is warranted in light of Correia. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records and associate them with the Veteran's claims file. 2. Make as many requests as needed to obtain the Veteran's outstanding service treatment records and military personnel records for active and inactive duty, to include from both the RMC and the NPRC through PIES using request code M04 and also to include a request to "Address Code 11" or the current location for records formerly at "Address Code 11." Associate all documentation generated in accordance with the records request with the Veteran's claims file, to include negative responses. If any records cannot be obtained and the Veteran's service, including periods of ACDUCTRA and INACDUTRA, cannot be verified, create a formal finding of unavailability with notice to the Veteran documented what actions were taken to verify her service. 3. Regardless of whether or not new documentation is received to verify the Veteran's periods of active duty service, schedule her for a VA examination with the appropriate medical personnel to determine the etiology of her current back and neck pain and to determine the current severity of the Veteran's service-connected right knee and right shoulder disabilities. The Veteran's entire claims file, to include a copy of this remand, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide the following opinions: a. Identify any current back disabilities that the Veteran has. For each diagnosis noted, provide an opinion as to whether it is at least as likely as not that the Veteran's back disability is related to the Veteran's active duty service or is otherwise related to any in-service disease, event, or injury, to include active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). In providing this opinion, the examiner is instructed to consider the November 1995 examination which indicates recurrent back pain as a period of time during which the Veteran was on active duty. b. Whether it is at least as likely as not that any current back disability identified is either caused or aggravated by the Veteran's service-connected post hysterectomy with left salpingo-oophorectomy. c. Identify any current neck disabilities that the Veteran has. For each diagnosis noted, provide an opinion as to whether it is at least as likely as not that the Veteran's neck disability is related to the Veteran's active duty service or is otherwise related to any in-service disease, event, or injury, to include active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). In providing this opinion, the examiner is instructed to consider the November 1995 examination which indicates recurrent back pain as a period of time during which the Veteran was on active duty. d. Determine the current severity of the Veteran's right shoulder disability. Report the range of motion in degrees and in accordance with Correia, the range of motion should also be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. In providing this opinion, the examiner should consider and discuss in their opinion the Veteran's lay statements regarding her decreased range of motion. The extent of any weakened movement, excess fatigability and incoordination should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. e. Determine the current severity of the Veteran's right knee disability. Report the range of motion in degrees and in accordance with Correia, the range of motion should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. In providing this opinion, the examiner should consider the Veteran's lay statements regarding her decreased range of motion. The extent of any weakened movement, excess fatigability and incoordination should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. All opinions must be supported by a complete rationale. If the examiner must resort to speculation for any of the requested opinions, an explanation as to why this is so is required. 4. Then, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any benefits sought on appeal remain denied, the Veteran should be issued a supplemental statement of the case and allowed an appropriate period of time to respond before the case is returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs