Citation Nr: 20046830 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-18 129 DATE: July 13, 2020 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for a left wrist disability is denied. Entitlement to a disability rating in excess of 10 percent for intervertebral disc displacement, lumbar spine status-post surgery (lumbar spine disorder), prior to March 26, 2015 is denied. Entitlement to a disability rating in excess of 10 percent for lumbar spine disorder, from June 1, 2015 to April 6, 2016 is denied. Entitlement to a disability rating in excess of 20 percent for lumbar spine disorder, from April 7, 2016 onwards, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that right shoulder disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that right wrist disability began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that left wrist disability began during active service, or is otherwise related to an in-service injury or disease. 4. Prior to March 26, 2015, the Veteran’s lumbar spine disorder is manifest by no worse than forward flexion to 80 degrees. 5. From June 1, 2015 to April 6, 2016, the Veteran’s lumbar spine disorder is manifest by no worse than forward flexion to 80 degrees. 6. From April 7, 2016 onwards, the Veteran’s lumbar spine disorder is manifest by no worse than forward flexion to 65 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right wrist disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left wrist disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a rating in excess of 10 percent for lumbar spine disorder prior to March 26, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 5. The criteria for a rating in excess of 10 percent for lumbar spine disorder from June 1, 2015 to April 6, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 6. The criteria for a rating in excess of 20 percent for lumbar spine disorder from April 7, 2016 onwards, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2008 to October 2012 to include service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R.§§ 3.2(i), 3.317(e); service personnel records (noting service in Iraq from February 2009 to February 2010 and from July 2011 to November 2011). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and August 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in February 2018. A transcript of the hearing has been associated with the file. This matter was previously remanded by the Board in August 2018 for further development. A review of the record indicates that the Board’s directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Entitlement to service connection for a right shoulder disability The Veteran contends that his right shoulder injury is due to lifting and carrying ammunition in service. Alternatively, the Veteran contends that his right shoulder disability is a medically unexplained multi-symptom illness. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that even though the Veteran has a diagnosis of right shoulder tendinitis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The April 2019 VA examiner opined that the Veteran’s right shoulder tendinitis is less likely as not related to an in-service injury, event, or disease. The examiner’s rationale was that there were no complaints of right shoulder pain in service and the Veteran denied any right shoulder pain at separation. Further, the Veteran had extensive post-service employment in a warehouse with repetitive use of his shoulder. The VA examiner determined that the Veteran’s right shoulder tendinitis was more likely than not due to his post-service employment and the repetitive lifting during such employment. Although the Veteran is competent to report that he experienced pain or otherwise injured his right shoulder during service, he has not done so. Rather, during his April 2019 VA examination he reported that his right shoulder pain started after service. These reports are supported by the Veteran’s service treatment records which do not contain any indications of right shoulder pain despite numerous examinations. The Veteran believes that his current right shoulder tendinitis is related to an in-service injury, event, or disease, but in this case, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Further, the Board notes that the Veteran sought service connection under 38 U.S.C. § 1117 as a medically unexplained multi-symptom illness. However, the Veteran’s right shoulder disability has been diagnosed as right shoulder tendinitis. As such, it does not qualify as an undiagnosed illness under 38 U.S.C. § 1117. Although the Veteran believes his right shoulder tendinitis is related to service, to include as a medically unexplained multi-symptom illness, the Board reiterates that the preponderance of the evidence weighs against findings that in-service injury, event, or disease occurred. Entitlement to service connection for a bilateral wrist disability The Veteran contends that his bilateral wrist disability is due to lifting and carrying ammunition in service. Alternatively, the Veteran contends that his bilateral wrist disability is a medically unexplained multi-symptom illness. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Even though the Veteran has a diagnosis of bilateral wrist tendinitis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The April 2019 VA examiner opined that the Veteran’s bilateral wrist tendinitis is less likely as not related to an in-service injury, event, or disease. The examiner’s reasoning was that there were no complaints of wrist pain in service or for many years thereafter. He noted that the first signs of bilateral wrist tendinitis were after five days of activity in 2017. The examiner further noted that the Veteran had sporadic episodes of numbness in his ring and small finger. However, he does not currently relate having any numbness in his hands or finger and that his current wrist pain is not related to any to numbness in service. Although the Veteran believes that his current bilateral wrist tendinitis is related to an in-service injury, event, or disease, in this case the Veteran is not competent to provide a nexus opinion regarding this issue. Again, the issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. The Veteran is competent to report that he suffered from bilateral wrist tendinitis in service, but he has not done so. The Veteran’s service treatment records do not contain any reports of bilateral wrist pain or tendinitis and at his April 2019 VA examination, he stated that he first had bilateral wrist pain days before his 2017 diagnosis of wrist tendinitis. Further, the Board notes that the Veteran sought service connection for his left and right wrist disabilities under 38 U.S.C. § 1117 as a medically unexplained multi-symptom illness. However, the Veteran’s left and right wrist disabilities have been diagnosed as tendinitis. As such, they do not qualify as an undiagnosed illness under 38 U.S.C. § 1117. Although the Veteran believes his bilateral wrist tendinitis is related to service, to include as a medically unexplained multi-symptom illness, the Board reiterates that the preponderance of the evidence weighs against findings that in-service injury, event, or disease occurred. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating in excess of 10% before 3/26/15 At the outset, the Board notes that this claim for increase stems from the Veteran’s initial claim for service connection for a back disability. The Veteran was awarded a 10 percent rating from October 2012 to March 25, 2015, a temporary total disability rating following surgery from March 26, 2015 to May 31, 2015, a 10 percent rating from June 1, 2015 to April 7, 2016, and a 20 percent rating since April 7, 2016. The Veteran contends that he is entitled to a higher rating as he believes his symptoms are worse than the assigned ratings. The Veteran’s intervertebral disc displacement, lumbar spine status-post surgery is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran testified at his February 2018 Board hearing that he has been prescribed bed rest for his back disability. The Veteran did not state how many times he had been prescribed bed rest, just that he stays in bed one to three days a week, depending on the level of his physical activity. Although the Veteran has claimed to have been prescribed bedrest, no such notation is contained in the record and he has not identified any additional treatment providers from whom records should be sought. As such, the Board finds that the preponderance of the evidence is against a compensable rating for IVDS due to incapacitating episodes. The November 2013 VA examiner found forward flexion of the thoracolumbar spine to 90 degrees with no objective evidence of pain. However, after repetitive use testing, forward flexion was to 85 degrees. The Veteran described flare ups as back spasms in the low back with shooting pain down the left leg that lasted two to three days and occurred once a month. The April 2016 VA examiner found forward flexion to 65 degrees. There was no additional functional loss due to pain or repetitive use. The Veteran described flare ups due to lifting, so he does not lift more than 5 pounds. For the period prior to April 7, 2016, excluding the period where a temporary total rating was in place, the preponderance of the evidence is against a rating in excess of 10 percent for lumbar spine disorder under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that there were back spasms in the low back with shooting pain down the left leg that lasted two to three days and occurred once a month would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 65 degrees or less. For the period since April 7, 2016, the preponderance of the evidence is also against a rating in excess of 20 percent for lumbar spine disorder under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he avoids lifting due to pain would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Regarding neurological impairment, the Veteran has already been granted service connection for left lower leg radiculopathy and the lay and medical evidence of record is against a finding that he has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to April 7, 2016 and in excess of 20 percent thereafter for his lumbar spine disorder. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller 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.