Citation Nr: 20009845 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 14-33 330 DATE: February 5, 2020 ORDER Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee under Diagnostic Code (DC) 5003-5260 is denied, but a separate 10 percent rating under DC 5259 is granted. Entitlement to an effective date earlier than December 28, 2017, for a 20 percent rating for a fracture of the left shoulder clavicle with deformity, is denied; Entitlement to a rating in excess of 20 percent for a fracture of the left shoulder clavicle with deformity from December 28, 2017 is denied. REMANDED Entitlement to service connection for a right hip condition, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s service-connected left knee disability has not been manifested by flexion limited to 79 degrees, full extension and symptomatic removal of semi-lunar cartilage. 2. The Veteran’s initial VA “Intent to File” form was submitted on December 28, 2017, with an increased rating claim due to surgery for his service-connected left shoulder disability submitted on January 1, 2018. Therefore, December 28, 2017 is the original date of the increased rating claim. 3. During the one-year period prior to the date of claim, December 28, 2017, it is not factually ascertainable that the Veteran’s level of disability increased. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left knee disability under DC 5010-5260 have not been met but the criteria for a separate 10 percent rating under DC 5259 have been met. 38 U.S.C. §§ 1155, 5102, 5103; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5256-63. 2. The criteria for an effective date earlier than December 28, 2017 for the award of a 20 percent disability for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.71a, DC 5201. 3. The criteria for a rating in excess of 20 percent after December 28, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from August 1979 to August 1992. He served in the Army National Guard from 1992 to 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal of April 2013 and June 2014 rating decisions by a Department of Veterans Affairs (VA) regional office (agency of original jurisdiction or AOJ). The present issues were remanded to the AOJ by the Board in a May 2018 decision. Following further development, the claims have been returned to the Board for adjudication. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluation is the ability of the body, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 1. A rating in excess of 10 percent for a left knee disability The Veteran was originally service-connected for chondromalacia of the left knee. This was changed to degenerative arthritis of the left knee under DC 5260 and he was awarded a 10 percent disability rating, the minimum compensable evaluation, for painful motion of the knee under 38 C.F.R. § 4.59. A June 2014 rating decision continued the 10 percent rating, which the Veteran appealed. The Board remanded for a medical examination in compliance with Correia v. McDonald, Jul 5, 2016, 28 Vet. App. 158 (2016), evaluating range of motion and pain in both active and passive motion, to include weight bearing and testing of the contralateral joint. There are several applicable rating DCs applicable for rating an orthopedic knee disability. Under DC 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under DC 5257, which evaluates recurrent subluxation or lateral instability of a knee, and assigns a 10 percent disabling for a slight impairment, 20 percent disabling for a moderate impairment, and 30 percent disabling for a severe impairment. Under DC 5258, a maximum 20 percent rating is warranted for semilunar cartilage, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint. Lastly, under DC 5259, a maximum 10 percent rating is warranted for removal of semilunar cartilage that is symptomatic. Separate ratings under DCs 5260 and 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, for a knee disability already rated under DCs 5260 and/or 5261, a claimant would have additional disability justifying a separate rating if there is instability and/or subluxation of the knee joint under DC 5257. See generally VAOPGCPREC 23-97. Furthermore, the rating criteria do not preclude separate ratings for meniscal injury under DCs 5258 and 5259 where there are separate ratings for limitation of motion under DCs 5260 and/or 5261, or instability under DCs 5257. Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Descriptive terms such as “slight,” “moderate,” “moderately severe,” 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. The use of terminology such as “slight” or “moderate” by VA examiners and others, 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. The Veteran was afforded a new VA examination for his left knee in June 2019. At the examination, the Veteran’s diagnosis of DJD and chondromalacia were confirmed. The examiner measured flexion from 0 to 110 degrees and extension from 110 to 0 degrees. Pain was noted on flexion and weight bearing that caused functional loss as well as crepitus. No increased loss of motion was measured on repetitive use and muscle strength was noted as 5/5. The Veteran did not exhibit muscle atrophy or ankylosis and had no history of subluxation or instability. The examiner opined that the examination was medically consistent with the Veteran’s statements regarding his functional loss and that his bilateral knee pain keeps him from standing or walking for long periods. The Veteran was also afforded VA examinations for his left knee in March 2018, October 2016 and May 2014. None of these examinations noted muscle atrophy, ankylosis, subluxation or instability or frequent episodes of “locking.” Flexion was noted as 0 to 110 degrees with extension as 110 to 0 in March 2018 and May 2014. Flexion was recorded as 0 to 79 degrees with extension of 79 to 0 degrees in October 2016. At all three examinations pain was noted as causing a functional loss, with an increase after prolonged standing or walking. However, there was no additional motion loss with repetitive testing. Private and VA treatment records since June 2019 are silent for complaints of worsening left knee symptoms. The Board finds that such symptomology as discussed above to include limitation of motion evidenced by painful motion, is contemplated in the currently assigned 10 percent disability rating. In fact, his range of motion findings for the left knee were, at worst, 79 degrees flexion. A compensable rating would require limitation of flexion to 60 degrees which is not shown or described by the lay or medical evidence. See 38 C.F.R. § 4.71a, DC 5260. The Board also finds that a separate 10 percent rating is warranted due to a prior history of meniscal surgery with symptomatic pain residuals under DC 5259. However, there is no lay or medical evidence of frequent locking or recurrent effusion into the joint. As such, a higher rating is not warranted under DC 5258. The Board has considered whether an additional rating in excess of 10 percent is warranted in this case under any other applicable criteria for evaluating knee disability. There is no lay or medical evidence of ankylosis (DC 5256) or instability/subluxation (DC 5257) impairment of tibia and fibula (DC 5262). 38 C.F.R. § 4.71a. The Veteran credibly describes pain on use which interferes with prolonged use, but the 2019 VA examiner found no additional motion loss with repetitive use or during flares. For the foregoing reasons, a rating in excess of 10 percent for a left knee disability is denied. 2. An effective date earlier than December 28, 2017 for a rating of 20 percent for a left shoulder disability The Veteran’s increased rating claim for a left shoulder disability was remanded in a May 2018 Board decision ordering the retrieval of national guard treatment records and a new VA examination. In a March 2018 rating decision, the AOJ granted an evaluation of 20 percent disabling from December 28, 2017, the date of the Veteran’s “Intent to File” submission. Recognizing the Veteran’s claim of worsening of his left shoulder, the AOJ rated him under DC 5201: limitation of motion of the arm, as opposed to DC 5257: impairment of the clavicle or scapula, resulting in a higher minimum compensable rating. In a May 2018 rating decision, the AOJ assigned a temporary rating of 100 percent from January 22, 2018, the date of the Veteran’s shoulder surgery, to May 1, 2018. The Veteran is seeking an earlier effective date for the current 20 percent rating for his left shoulder disability. At the outset, the Board notes that medical records indicate the Veteran was instructed to refrain from putting weight on his shoulder for 6 weeks following surgery. During a March 2018 VA examination the Veteran had range of motion from 0 to 130 degrees flexion and 0 to 120 degrees extension with 80 degrees on external and internal rotation. He also had full strength in the shoulder muscle with no instability noted. Affording the Veteran the benefit of the doubt, the AOJ extended his 100 percent temporary rating to May 1, 2018. As the Veteran has received the maximum schedular rating for that period, the Board will not consider a claim for increased rating during that time. The effective date of an evaluation and grant of compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in disability occurred within one year prior to the filing of the claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). According to Harper v. Brown, 10 Vet. App. 125, 126 (1997), three possible effective dates may be assigned depending on the facts of the particular case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (i.e., the date the increase is factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or, (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim). 38 C.F.R. § 3.400(o)(2). In summary, determining the appropriate effective date for an increased rating under the effective date statutes and regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received, and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). The Federal Circuit has reaffirmed that “the plain language of [section] 5110(b)(2)...only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.” Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). Turning to the facts of the case, private treatment records from December 26, 2016 indicate that while the Veteran’s experienced deep pain in his left shoulder as well as flexion at 155 degrees with pain and guarding in abduction at 126 degrees. Medical records from February 2017 indicate that the Veteran’s range of motion had increased with flexion to 165 degrees, but that he still had “arc of motion” pain appearing at 110 degrees. The private clinician noted that the Veteran’s overall left shoulder strength was gradually increasing but that his overall pain remained the same. A March 2017 VA examination of the Veteran’s left shoulder revealed abnormal range of motion, with flexion limited to 110 degrees and pain noted as causing a functional loss. The Veteran complained of increased pain on lifting objects over his head and the examiner documented arthritis and a fracture deformity of the left clavicle that affected range of motion of the shoulder. Upon review of the record, the Board finds that it is not factually ascertainable that the Veteran’s left shoulder disability worsened in the one-year period prior to his December 2017 “Intent to File,” the effective date assigned by the AOJ. The Veteran’s left shoulder exhibited decreased range of motion with increased pain on motion in December, February and March 2017. Since all medical evidence indicates that the Veteran’s left shoulder disability was consistent in the year before his date of claim, an earlier effective date is not warranted. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 3. A rating in excess of 20 percent from December 28, 2017 for a left shoulder disability The Veteran seeks a rating in excess of 20 percent from December 28, 2017, the effective date of his increased rating, for his non-dominant left (or minor) shoulder disability. The Veteran is currently rated at 20 percent disabling under DC 5201 for painful motion of the left shoulder, the minimum compensable rating, under 38 C.F.R. § 4.59. The AOJ formerly evaluated the Veteran’s left shoulder under DC 5203 but changed this in order to award a higher minimum compensable rating. Under DC 5201, the minimum schedular rating of 20 percent is warranted where there is limitation of motion of the minor arm at the shoulder level. A 30 percent rating is warranted for the minor shoulder limited midway between side and shoulder level. A 40 percent rating is warranted for minor shoulder limited to 25 degrees from the side. Normal range of motion of the shoulders is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees (90 degrees flexion and abduction constitutes shoulder level). 38 C.F.R. § 4.71, Plate I. The Veteran was most recently afforded a VA examination for his left shoulder in June 2019. The Veteran stated that he underwent left shoulder surgery in January 2018 and still experienced pain on lifting his arm over his head and while doing pull ups. The examiner documented his flexion at 0 to 130, abduction at 0 to 120 and both external and internal rotation at 80 degrees. Repetitive testing was conducted, and the Veteran exhibited no loss of strength or additional loss of motion over time. No ankylosis or instability was detected, but the examiner noted a fracture of the left clavicle affecting range of motion of the shoulder with tenderness on palpation. A non-painful and stable scar from the recent surgery was also described. The examiner observed no pain in non-weight bearing but noted functional loss due to “pain on lifting overhead.” In a March 2018 VA examination, the Veteran’s flexion was measured as 0 to 130 degrees, abduction was 0 to 120 degrees with external and internal rotation both being 80 degrees. The range of motion itself did not create a functional loss, but pain on motion was noted as causing a functional loss at the examination. Ankylosis and instability were not detected but the examiner described the Veteran’s functional impact as “pain on lifting overhead.” As discussed above, private medical records and a VA examination indicate the Veteran complained in December 2016 and February and March 2017 of pain when lifting objects above his head. At the March 2017 VA examination, the Veteran’s flexion and abduction were both 0 to 110 degrees, with external and internal rotation both normal (0 to 90 degrees). As such, with consideration of functional impairment under 38 C.F.R. §§ 4.40 and 4.45 as well as the approximating provisions of 38 C.F.R. § 4.7, the Board finds that, since December 28, 2017, the Veteran’s left shoulder disability has more nearly approximated painful motion at shoulder level. Therefore, a uniform 20 percent rating, but no higher, is warranted. The Board further finds that, at no time during the appeal period, has the Veteran met or more nearly approximated the criteria for limitation of right arm motion midway between side and shoulder level. At worst, the Veteran has demonstrated left shoulder motion of 110 degrees of flexion and abduction with external rotation above shoulder level. The Veteran has not described any limitation of motion midway between side and shoulder level. The Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, noting that the greatest limitations exhibited in private and VA medical records indicate pain on lifting overhead, and has found these findings fall well short of the criteria for a higher rating. The Veteran’s is competent to describe the symptoms and functional limitations of his left shoulder, and the Board finds these statements both credible and in accordance with the medical evidence of record, both of which have been relied upon to award the 20 percent rating for the period after December 28, 2017. Accordingly, a rating in excess of 20 percent for this period is not warranted. REASONS FOR REMAND Entitlement to service connection for a right hip condition, to include as secondary to service-connected disabilities In its May 2018 decision, the Board remanded the Veteran’s service connection claim in order to determine whether his current right hip disability is caused or aggravated by his service-connected disabilities, to include his bilateral knees, left hip, and left ankle. Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The complicated medical and procedural history of these particular claims necessitate additional medical explanation and opinion prior to ensure their proper adjudication. The AOJ scheduled the Veteran for a VA examination of his right hip in June 2019. The examiner determined that it was less likely than not that the Veteran’s right hip injury was due to his service because he had no diagnosed condition for the right hip in service but noted that advanced osteoarthritis of the left hip was noted in 1997. A September 2019 addendum opinion by the same clinician stated, “it is less likely that his current [right] hip condition was aggravated by SC condition.” In support of this conclusion, the examiner only stated that the Veteran had advanced osteoarthritis of the left hip in 1997, that “there was no aggravated condition of [right] hip in service” and that “[right] hip OA [osteoarthritis] was diagnosed in 2007.” The Board finds that the September 2019 addendum fails to adequately provide supporting rationale, namely why diagnoses dates 10 years apart are evidence that the Veteran’s right hip condition was not aggravated by his left hip condition. Additionally, the addendum fails to provide an opinion on whether the Veteran’s right hip condition was caused or aggravated by his other service-connected disabilities. The Board finds that while the AOJ has made a good faith effort to further develop the claims, it has not “substantially complied” with the previous Board remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board must remand for a medical addendum addressing whether the Veteran’s right hip condition is caused or aggravated beyond its normal progression by his service-connected left hip, bilateral knee or left ankle disabilities, accompanied by a full rationale. The matters are REMANDED for the following action: 1. Obtain any VA treatment records since October 2019 and associate them with the file. 2. Obtain an addendum by an examiner other than the one that performed the June 2019 examination and provided the September 2019 addendum. If, after a review of the claims file, the examiner determines that a new examination is needed, such must be scheduled, and the Veteran notified. The examiner must opine: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right hip disability had its onset in service or is otherwise due to service? (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right hip disability is due to or aggravated beyond its normal progression by his service-connected disabilities, to include his service-connected left hip DJD, bilateral knee DJD and degenerative joint narrowing with pain of the left ankle. A complete rationale must be provided for any opinion given. The rationale must cite to and explain the relevance of supporting factual data and medical literature where appropriate. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.