Citation Nr: 21004756 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-15 666A DATE: January 28, 2021 ORDER Service connection for left shoulder disability, to include degenerative arthritis, is granted. Service connection for a right hand disability, to include diminished strength, is granted. REMANDED Entitlement to a rating in excess of 10 percent from April 29, 2015 to October 29, 2019, and in excess of 20 percent since October 29, 2019, for a back disability is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy, to include consideration of a separate evaluation prior to October 29, 2019. FINDINGS OF FACT 1. The Veteran’s left shoulder disability, to include degenerative arthritis, was incurred during her active duty military service. 2. The Veteran's right hand disability, to include diminished strength, was incurred during her active duty military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder disability, described as degenerative arthritis, have been met. 38 U.S.C. §§1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right hand disability, to include diminished strength, have been met. 38 U.S.C. §§1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the United States Army National Guard. He had a period of initial active duty training from May 1979 to October 1979 and was called to active Federal service from January 2004 to February 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from November 2011 and June 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned in February 2019; a transcript has been associated with the file. This matter was remanded in September 2019 for additional development, including VA back, shoulder and hand examinations. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a duty to ensure compliance with the terms of the remand. Stegall v. West, 1 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As discussed in more detail below, a remand on the issue of entitlement to an increased rating for the Veteran's back disability is required. After the September 2019 remand, an April 2020 appellate decision granted a 20 percent evaluation for the low back disability and awarded a separate 10 percent evaluation for associated right lower extremity radiculopathy. In October 2020, the appellant sought Higher-Level Review (HLR) of the April 2020 decision under the Appeals Modernization Act (AMA). Although the RO initially rejected this appeal on October 20, 2020, stating no proper opt-in to the AMA from the older Legacy system was made, the RO on October 23, 2020, accepted the HLR request and characterized the AMA appeal as one for earlier effective dates. Two decisions purporting to be HLR decisions, in October 2020 and January 2021, were issued by the RO. This was in error. As was pointed out to the Veteran when initially, correctly rejecting the HLR request, the appeal for evaluation of the low back was under the Legacy appeal system, and opt-in was not properly made. It could not, in fact, as such is possible only within 60 days after issuance of a statement of the case or supplemental statement of the case; neither document was issued on these matters between the Board remand and filing of the AMA forms. 38 C.F.R. § 3.2400(c)(2). Moreover, the claims were not for earlier effective dates, as was stated by the RO in the improper AMA adjudications. The Veteran was simply seeking the awarded increase for the earlier stage already on appeal. In other words, they were continuations of the Legacy appeals for increased rating for all stages of the appeal. The RO lacked the jurisdiction to issue any AMA decision in connection with the ongoing Legacy appeal, which it recognized was still active. The April 2020 decision was part of the ongoing appeal for increased evaluation of the back, and as such the question of evaluation of radiculopathies is part of that appeal. The issues are characterized accordingly, above. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Degenerative arthritis is among the listed conditions. In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training or experience. 38 C.F.R. § 3.159(a)(2). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Left Shoulder The Veteran has repeatedly reported that she began experiencing pain in her left shoulder while she was deployed in Iraq, where she carried heavy weight and fell out of a container in August 2004. She has been diagnosed with degenerative arthritis in her left shoulder, satisfying the current disability requirement. X-rays taken in October 2019 confirm degenerative changes in the Veteran’s left shoulder Service treatment records do not show in-service treatment for her left shoulder. However, a January 2005 line of duty determination shows that the Veteran suffered a fall from a container where the Veteran fell forward and to the left in August 2004. In November 2005, prior to filing a claim for compensation of her left shoulder disability, the Veteran explained to a treatment provider that she had been told that she would have to stay in Iraq to have her fall-related complaints treated, so she did not seek treatment until after she had returned from Iraq in January 2005. In September 2005, less than a year after her discharge from service, the Veteran sought treatment for left shoulder pain. After examination, her pre-existing prescription for Motrin was renewed. In April 2007, the Veteran denied developing back pain, stiff and painful joints or numbness or tingling in her hands or feet while on deployment, although in that same assessment, she described injuring her back in a fall from a container and endorsed back pain. The Veteran continued to seek treatment for her left shoulder pain, including emergency treatment in July 2015 for a flare up of her left shoulder pain. In February 2019, she testified that she had suffered left shoulder pain and functional impairment since her deployment in Iraq. The Veteran is competent to report the nature, onset and course of her left shoulder symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has repeatedly described the onset of her left shoulder symptoms as occurring while on active duty in Iraq. She sought treatment for her left shoulder symptoms within a year of her discharge from active duty. Based on her report of symptoms, the VA examiner in October 2019 ordered X-rays which confirmed the diagnoses of degenerative arthritis. The Board notes the record contains a negative nexus opinion from a VA examiner in October 2019, based on “no evidence of chronicity of care.” However, this opinion fails to account for the Veteran’s competent statements regarding the continuity of her left shoulder symptoms in and since service, or the treatment records documenting that the Veteran repeatedly sought treatment for left shoulder pain, beginning shortly after discharge from service. Accordingly, this opinion is given no probative weight. Given the Veteran’s credible statements about the nature, onset, and continuity of her left shoulder symptoms; treatment records showing that she has consistently sought treatment beginning less than a year after her discharge from active service; and the association of such symptoms with her currently diagnosed condition, the Board finds that service connection is warranted for her left shoulder disability. Continuity of symptomatology along with a diagnosis of a listed chronic condition warrants direct service connection. 38 C.F.R. § 3.303(b). Right Hand The Veteran contends that since falling off a container while on active duty in Iraq, she has had pain and numbness radiating from her right shoulder to her right hand and weakness, including a loose grip, in her right hand. She testified in February 2019 that she has pain radiating down her right arm into her hand, causing numbness and a “freezing up” of her hand. She wears a wrist brace and is unable to open a can or open a bottle. As for the requirement of a current disability, the Veteran has consistently reported numbness and weakness in her right hand that causes functional impairment, including opening containers such as can or bottles as well as difficulty writing. Physical examinations have documented diminished strength and decreased sensation in her right hand as recently as the October 2019 VA examination. These reports and findings satisfy the requirements of a current disability. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). As detailed above, the Veteran's military service records establish that she fell from a container while on active duty and deployed to Iraq in 2004. Service connection has already been granted for a right shoulder disability connected to that fall. Post-service treatment records show that the Veteran has consistently reported that her right hand symptoms began while she was deployed in Iraq, and physical examinations in March 2011 and October 2019 measured diminished strength in her right hand, although one examination in March 2013 showed full strength in both of her hands. This examination took place after the Veteran completed a course of physical therapy in 2012, which she reported helped, but did not completely relieve, her right hand symptoms, including pain and swelling. The Veteran is competent to report the nature, onset and course of her right hand symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has consistently reported that her right hand symptoms began after she fell from a container while on active duty in Iraq, and have persisted since then The Board notes that there are two conflicting medical opinions in this case – one from the Veteran's treating physician at VA and the other from the October 2019 VA examiner. In March 2011, the Veteran's treating VA physician concluded that the Veteran's right hand disability was incurred during active duty. She based her opinion on her examination of the Veteran and a review of her medical service records. This opinion, which was rendered prior to the Veteran filed for compensation for this disability and is consistent with the record including the Veteran's statements, is accorded significant probative weight. On the other hand, the 2019 VA examiner’s opinion is unpersuasive. Although the examiner, a nurse practitioner, conceded that the Veteran had incurred a hand condition in service, she concluded that her hand condition was “only acute” and there was no evidence of chronicity of care. She also opined that the Veteran's right hand disability was not caused or aggravated by a service-connected disability because there was “no aggravation of right hand weakness noted” and no evidence of chronicity of care apart from a single instance in 2011. The examiner failed to account for the Veteran's consistent, competent and credible statements about the onset, duration and character of her symptoms, or the medical opinion of the VA doctor who had examined and treated the Veteran in March 2013. Consequently, these opinions are given no probative weight. In sum, the Veteran's credible statements about the onset, nature, and continuity of her right hand symptoms; military records documenting her fall from a container while on active duty; and the opinion of her treating physician at VA, the Board finds that service connection is warranted for her right hand condition. REASONS FOR REMAND As noted above, the Veteran's claim for an increased rating for her back disability was remanded for a new VA spine examination after the Veteran testified in February 2019 that her back condition had worsened since her last VA examination. In its September 2019 remand order, the Board directed that the Veteran be scheduled for a VA spine examination to assess the current severity and any functional impairment of her degenerative disc and joint disease of the lumbar spine. The Veteran attended the VA spine examination in October 2019. However, the examination did not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017), and a remand is required. A VA examination is inadequate when an examiner does not elicit relevant information as to the Veteran’s flare-ups or ask her to describe additional functional loss, if any, she suffered during flare-ups and then does not “estimate the [Veteran’s] functional loss due to flare-ups based on all the evidence of record (including the [Veteran’s] lay information) or explain why he could not do so.” Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The October 2019 examiner stated that the Veteran reported an increase in pain and lack of endurance during a flare-up and with repetitive use over time. Despite this information, the examiner stated that she “had no basis” to offer additional losses of function or motion during a flare-up or after repetitive use over time, but did not explain why she lacked this basis. Therefore, the Board finds a remand is required to properly address the Veteran's contentions and the requirements under Sharp. Additionally, as is discussed above, the question of evaluation of radiculopathy throughout the appellate period is part of the current appeal, and must be properly addressed in connection with such. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination to assess the severity of her service-connected degenerative spinal arthritis. All clinical findings must be reported. The claims folder must be reviewed in conjunction with the examination. The VA examiner should address any additional functional impairment or loss after repeated use over time or during flare-ups; this includes asking the Veteran for information regarding the severity, frequency, alleviating factors, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repetitive use over time. If the examiner cannot report the degree of additional range of motion loss during a flare-up or repeated use without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). To the extent possible, retrospective commentary on the functional impacts of flare ups of the low back condition (since April 2015) are requested. The examiner should also describe all current (since April 2015) neurological manifestations of the low back disability. Right lower extremity radiculopathy should, in particular, be discussed. 2. Then, readjudicate the claim on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.