Citation Nr: 21002577 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-49 118 DATE: January 14, 2021 ORDER Entitlement to an increased evaluation in excess of 20 percent from November 15, 2011, for residual right shoulder dislocation (right shoulder disability) is denied. Entitlement to an increased evaluation in excess of 10 percent for right knee medial collateral ligament strain and anterior collateral ligament tear (right knee disability) is denied. Entitlement to an increased evaluation in excess of 10 percent for status post reconstruction of the left knee anterior cruciate ligament with patellar tendon transplant (left knee disability) is denied. Entitlement to service connection for left shoulder acromioclavicular strain (left shoulder disability) is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s right shoulder disability did not manifest as limitation of motion midway between side and shoulder level. 2. For the entire appeal period, the Veteran’s right knee medial collateral ligament strain and anterior collateral ligament tear (right knee disability) did not manifest as flexion of the leg limited to 30 degrees, extension of the leg limited to 15 degrees, or moderate subluxation. 3. For the entire appeal period, the Veteran’s status post reconstruction of the left knee anterior cruciate ligament with patellar tendon transplant (left knee disability) did not manifest as flexion of the leg limited to 30 degrees, extension of the leg limited to 15 degrees, or moderate subluxation. 4. The preponderance of the evidence is against finding that left shoulder condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent disabling for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5201. 2. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5257, 5260, 5261. 3. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5257, 5260, 5261. 4. The criteria for service connection for a left shoulder condition have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to May 2003. In March 2019, the Board remanded the issue below on appeal for further development, and the case has since been returned to the Board. The Board finds that the AOJ has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Entitlement to an increased evaluation in excess of 20 percent from November 15, 2011, for residual right shoulder dislocation (right shoulder disability) In a June 2013 rating decision, the AOJ continued the Veteran’s 10 percent evaluation for his right shoulder disability. He disagreed with this determination. In a subsequent July 2016 rating decision, his evaluation was increased to 20 percent, effective November 15, 2011. The Veteran continues to disagree with the evaluations awarded. Accordingly, the issue before the Board is whether the Veteran is entitled to an increased evaluation in excess of 10 percent prior to November 15, 2011, and in excess of 20 percent thereafter, for residual right shoulder dislocation. The Veteran’s right shoulder disability is rated under DC 5201. Under DC 5201, a 20 percent rating is assigned for limitation of motion at shoulder level. A 30 percent rating is assigned for limitation of motion midway between side and shoulder level. A 40 percent rating is assigned for a limitation of motion when the arm extends up to 25 degrees from the side. In December 2011, the Veteran attended a VA Shoulder and Arm Conditions examination. The examiner diagnosed right shoulder dislocation. The Veteran indicated increasing pain and stiffness with no reported flare-ups. Upon examination, initial range of motion (ROM) measurements were normal flexion and abduction. Repetitive use testing also indicated normal ROM. No functional loss, guarding, subluxation, or localized tenderness was noted. In October 2019, as required by the March 2019 Board remand, the Veteran attended another VA Shoulder and Arm Conditions examination. The examiner diagnosed right glenohumeral joint dislocation. The Veteran stated that “he has a constant ache in the right shoulder. He states pushing the shopping cart hurts. Cranking the wench on the boat to get it on the trailer makes his shoulder ache so he stops periodically to switch arms.” He also noted flareups in the right shoulder at least 3 times in the past 5 years but none within the past 12 months. Upon examination, right shoulder ROM was noted as flexion to 120 degrees and abduction to 150 degrees with normal external and internal rotation. No additional functional loss was noted after repetitive use testing. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. Shoulder instability was suspected but not history of subluxation was noted. There was no evidence of pain on passive ROM testing or when the joint was used in non-weight bearing. The remaining evidence of record details continued complaints and treatment for the Veteran’s right shoulder disability but no ROM indications. Based on the foregoing evidence of record, the Board finds that a higher evaluation is not warranted throughout the appeal period. As an initial matter, the Board notes that the Veteran’s current 20 percent evaluation is based on 38 CFR §4.59 which allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. In this matter, because of painful motion demonstrated throughout the appeal period, the Veteran was awarded 20 percent under DC 5201, the minimum compensable evaluation. However, the remaining evidence of record is entirely silent for any indication that the Veteran suffered from limitation of motion midway between side and shoulder level, indicative of the next highest evaluation. In short, the preponderance of the evidence weighs against finding an increased rating for the Veteran’s right shoulder disability for the entire appeal period. Entitlement to an increased evaluation in excess of 10 percent for bilateral knee disabilities In a June 2013 rating decision, the AOJ continued the Veteran’s 10 percent evaluation for his bilateral knee disabilities. He disagreed with this determination. Accordingly, the issue before the Board is whether the Veteran is entitled to an increased evaluation in excess of 10 percent from November 15, 2011, for his bilateral knee disabilities. As an initial matter, the Board notes standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by DCs 5260 and 5261. The Veteran’s bilateral knee disability is rated under DC 5257. Under DC 5256, a 30 percent rating is warranted for favorable ankylosis with the knee fixed in full extension or slight flexion between zero and 10 degrees. Under DC 5257, a 10 percent rating is warranted for slight subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under DC 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Under DC 5258, a 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5258. Under DC 5259, symptomatic removal of semilunar cartilage warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5259. Under DC 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensable; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a, DC 5261. Under DC 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5262. A claimant who has both limitation of flexion and limitation of extension of the same leg may be rated separately under DCs 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59, 990 (Oct. 6, 2004). Additionally, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. Separate ratings, however, require separate compensable symptomatology. VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56, 704 (Oct. 22, 1998); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63, 604 (Dec. 1, 1997); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) In December 2011, the Veteran attended a VA Knee and Lower Leg Conditions examination. The examiner diagnosed right knee strain and left knee ACL tear. The Veteran reported increasing constant pain and stiffness in left knee and giving way with occasional pain in the right knee. No flare-ups were reported. Upon examination, ROM in the right knee was noted as normal flexion with pain starting at 90 degrees, and normal extension. ROM in the left was noted as flexion to 110 degrees with pain starting at 0 degrees, and normal extension. Repetitive use testing indicates normal right knee flexion and extension along with flexion to 110 degrees in the left knee with normal extension. Bilateral pain on palpitation was noted. No instability, subluxation, or ankylosis were noted. In March 2013 private medical correspondence from Florida Knee and Orthopedic Centers, Dr. R.G.H. Md. noted, in pertinent part, left knee pain with a ROM of 0 to 125 degrees. A May 2017 general evaluation from Cora Physical Therapy indicates ROM as flexion for the right knee as “105” and “80” for the left knee, along with extension noted as “WFL” for the right knee and “25” for the left. In October 2019, as required by the March 2019 Board remand, the Veteran attended a VA Knee and Leg Conditions examination. The examiner diagnosed bilateral ACL tear. The Veteran stated that his left knee is worse and his civilian orthopedic surgeon suggested a total knee replacement. His right knee pain is intermittent and mostly “positional.” No flare-ups were noted. Functional loss was described as an inability to stand for more than 5 minutes and stairs being “brutal.” Upon examination, ROM was noted as right flexion to 130 degrees, and extension 130 degrees to 0. Further, left flexion to 90 degrees and extension 90 degrees to 0. No additional functional loss was noted on repetitive use testing. No atrophy, ankylosis, subluxation, instability, recurrent effusion, tibial or fibular impairment were noted. Pain on passive ROM testing was noted for the left knee. No evidence of pain when bilateral joints were used in non-weight bearing. The remaining evidence of record indicates continued complaints and treatment for the Veteran’s service-connected left knee condition; however, it fails to demonstrate he warrants a higher evaluation throughout the entire appeal period. Based on the foregoing evidence of record, the Veteran’s bilateral knee condition does not warrant a higher evaluation throughout the entire appeal period. As an initial matter, separate evaluations under DCs 5256, 5258, 5259, 5262, and 5263 are not warranted. The evidence of record during the appeal period is silent for any indication of ankylosis, malunion of the tibia and fibula, or genu recurvatum, and there are no instances of locking. To rate under DC 5259, would constitute rating the same impairment twice since the Veteran is already assigned a rating based on limitation of motion, and code 5259, contemplates limitation of motion as well. Also, DC 5259 only provides a maximum 10 percent rating, (which is already in effect). Further, the entirety of the evidence fails to establish that the Veteran suffered from flexion limited to 30 degrees, moderate subluxation or lateral instability, or extension of the leg limited to 15 degrees thereafter, all indicative of a higher evaluation under applicable DCs for the appeal period. In short, the preponderance of the evidence weighs against finding an increased rating for his bilateral knee condition based on limitation of flexion or extension, or subluxation for the appeal period. Entitlement to service connection for left shoulder acromioclavicular strain (left shoulder disability) The Veteran contends that his left shoulder disability is the result of his shoulder injuries during service. The Veteran’s service treatment records show treatment for left shoulder injuries in December 1990, January 1991, and August 1993. Also, of importance, in a February 2003 Report of Medical Assessment, the examiner noted that the Veteran had a history of bilateral shoulder separations, but that his only complaint was stiffness if he slept with his arms above his head. The Veteran’s April 2003 separation examination states that the Veteran denied any pain of the left shoulder or exhibited difficulty with range of motion. The examiner opined that a 1993 left shoulder acromioclavicular sprain had no residual effects and was a one-time incident. In December 2011, the Veteran was afforded a VA examination. Here, the examiner found that the Veteran did not have any diagnosis pertaining to his left shoulder. Private physician notes from February and March 2017 show the Veteran was diagnosed with left shoulder osteoarthritis and rotator cuff strain. In October 2019, as required by the March 2019 Board remand, the Veteran attended a VA Shoulder and Arm Conditions examination. No specific diagnosis for the left shoulder was established. The examiner opined that the claimed left shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale provided: There appears to be some confusion in the STRS regarding which shoulder was dislocated in-service. The veteran was seen December 22, 1990 for chief complaint of dislocated right shoulder, however the provider noted he fell on his left shoulder with minimal motion of the right shoulder. The provider notes obvious distress in the right shoulder with anterior bulging of the shoulder noted. The provider ordered x-rays before and after reduction (which means putting the shoulder back in place). The diagnosis was left shoulder dislocation. Examiner was able to locate the shoulder x-rays before and after reduction performed on December 22, 1990. These clearly show that it was the right shoulder that was dislocated. He was seen again December 27, 1990 by orthopedics who noted a traumatic anterior dislocation of the right shoulder that was reduced and he is in an immobilizer. A follow up note from orthopedics on January 10, 1991 shows follow-up after left shoulder dislocation 3 weeks ago which was treated with closed reduction and immobilization. Examiner feels this is an error in that it should have noted that it was the right shoulder dislocated 3 wks prior. Due to the inconsistencies in the original ER record on 12/22/1990 it is clearly the reason for the confusion regarding which shoulder was dislocated. It was the right shoulder and he is currently SC for this condition. He did not dislocate the left shoulder. That said, the veteran was seen 8/25/1993 for left shoulder soreness after playing volleyball the prior day and he was also moving some furniture around. An x-ray was performed 8/25/1993 showing grade 1 left AC strain but no arthritis of the left or the right AC joints. The AC joint is held together by strong ligaments called the coracoclavicular ligaments and the AC joint capsule. A grade 1 strain is considered to be the most mild form (AC joint injuries can be grade 1-6). They are treated with ice rest and anti-inflammatory medications but not with surgery. This is the type injury the veteran had. Reference: American Academy of Orthopedic Surgeons (www.aaos.org) Post separation, the records reviewed (Civilian primary care records 2007-2011, hearing testimony, veteran's statements, orthopedic surgeons records, VBMS, CPRS) do not show any evidence of treatment until he injured his left shoulder at work and sought treatment with the orthopedist 2/1/2017. This was 14 yrs post separation and thus a nexus cannot be established for his current left shoulder diagnoses of supraspinatus and infraspinatus tendinopathy, AC joint arthropathy, subdeltoid bursitis, bicep tendinopathy, and glenohumeral osteoarthritis (OA). In addition, his injury in service (Grade 1 AC strain) was related to the Acromioclavicular Joint (AC joint) not the shoulder (glenohumeral) joint, the bicep tendon or the rotator cuff tendons (supraspinatus and infraspinatus). The in service left AC strain involves the AC joint, the coracoclavicular ligament and the AC ligament. As to whether his mild left AC strain caused his arthritis of the AC joint, it is less likely than not because this was a mild injury, not a traumatic one. An x-ray at the time of injury did not show any arthritis of the AC joint. He states that post separation, for the past 16 yrs, he continued working as firefighter for the City of Clearwater and is still employed there currently driving the fire truck (states he switched to driving due to his medical issues; shoulder, knees, elbows. This is a very labor intense career with heavy lifting, carrying, pulling and pushing. Over time, along with normal aging, it creates wear and tear on the joints and surrounding ligaments. It is the likely etiology of his diagnosis noted above. The remaining evidence of record indicates continued complaints of a left shoulder disability but no discussion of its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. To that end, the only medical evidence of record is against the claim. Indeed, the October 2019 VA examiner found that left shoulder condition was not due to his active service. This opinion was based on a review of the Veteran’s entire claims folder, considered the Veteran’s lay statements, and provided clear conclusions with supporting rationale. Therefore, the Board finds it highly probative. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for left shoulder condition. As the preponderance of the evidence is against the claim, the benefit of the doubt rule   does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. A. Elliott II, 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.