Citation Nr: 21005133 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-11 181A DATE: January 29, 2021 ORDER Entitlement to service connection for left shoulder disability is denied. Entitlement to a rating in excess of 60 percent for status post right knee replacement is denied. FINDINGS OF FACT 1. The Veteran’s left shoulder disability was not manifest in service or for several years thereafter and is not shown to be related to service 2. The Veteran's right knee disability has been productive of chronic residuals consisting of severe painful motion or weakness which, at most, may be equally served by amputation with prothesis at the middle or lower third of the thigh. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for a rating in excess of 60 percent for status post right total knee replacement have not been met. 38 U.S.C. §§ 1155,5107(b); 38 C.F.R. §§ 3.102,4.1, 4.2, 4.3, 4.6, 4.21, 4.59, 4.71a, Diagnostic Codes 5055, 5162. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1961 to September 1965. These matters come before the Board of Veterans’ Appeals (Board) from a July 2013 rating decision of the Oakland, California Regional Office (RO) of the Department of Veterans’ Affairs (VA). In a September 2017 Board decision, the Board denied service connection for a left shoulder disorder and denied the Veteran’s claim for an increased disability rating for his right knee disorder. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In February 2019, the Court issued an Order that vacated the Board's September 2017 decision regarding the matters considered herein, and remanded the matters on appeal for adjudication. In January 2020, the Board remanded the issues on appeal for additional development consistent with the Court’s findings. The case is now ready for adjudication. While changes are made to further explain the Board’s findings, to discuss new evidence, and to address the Court’s cited inadequacies in the September 2017 vacated Board decision, as much remains the same, many of the findings and analyses below are similar or identical to those of the September 2017 Board decision. Service Connection for a Left Shoulder Disorder The Veteran contends that he injured his left shoulder while playing football during active duty. Alternatively, he asserts that he has a left shoulder disability which is related to a service-connected cervical spine disorder. 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). Service connection may additionally be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, or to a service-connected disorder The Board concludes that, while the Veteran has a diagnosis of a left shoulder disorder, 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, or to a service-connected disorder. The Veteran has reported that he played running back on a football team during service. He has noted that he would lower his shoulders when an opposing player was about to tackle him. He has also indicated that the accumulation of all the physical contact he experienced during football in service had taken its toll, including by resulting in a left shoulder disability. The Veteran’s service treatment records are negative for any findings of left shoulder injuries or left shoulder problems. The Veteran was separated from service due to a right knee injury, treatment for such indicated that the Veteran was in good health until his October 1962 knee injury. In a June 1965 Medical Board examination prior to separation, the Veteran’s upper extremities were found to be normal. The Veteran’s medical history was noted to include “arthritis, painful or trick right shoulder, old football injury.” The Board presumes that if the Veteran had injured his left shoulder playing football during service, that such an injury would be reflected in his medical history, alongside the notation of the right shoulder injury. Similarly, while the Veteran states that the reason a left shoulder injury is not shown for years after service is because he didn’t know he could obtain service connection for such, the record contradicts this assertion in that the Veteran is shown to have submitted claims for service connection for other disorders. Moreover, the evidence weighs against a finding of continuity of symptoms as the Veteran is not shown to have arthritis within a year of service. Further, the evidence of record between the Veteran’s separation and his first assertion that he had a left shoulder disability which was related to a football injury demonstrates multiple opportunities where the Veteran was in a position to suggest such but did not. For example, in September 1975, the Veteran applied for compensation and pension for degenerative arthritis of the right knee but did not note a shoulder condition. Further, a January 1977 correspondence from the Veteran in support of that claim includes his report that he had an injury to the right knee in October 1962 and that prior to that injury he had not received any major injury of any type, and that he was in good health. The Veteran noted a July 1970 left shoulder acromioplasty for impingement of the shoulder on the acromion process, but did not note any left shoulder symptoms or a left shoulder injury in service. Additionally, January 1977 statements in support of the Veteran’s claim from the Veteran’s sister and daughter similarly report back and knee injuries due to football, but no shoulder injury or symptoms were described. Further, an April 1977 private treatment note from Dr. D.S., an orthopedic surgeon, notes that the Veteran had a left shoulder acromioplasty in 1970 but continued to have pain there, but no injury was noted. In a June 1995 private treatment record, it was noted that the Veteran had a left shoulder injury in 1970 and an acromioplasty was done, the Veteran reported that he now had pain with his shoulder motion. In August 1996, the Veteran is shown to request service connection for his left knee and low back conditions. A left shoulder disorder is not noted. In a July 1998 correspondence, the Veteran asserted that he received many severe blows to his head, neck and shoulders while playing football during service and that he did not seek medical attention because those injuries were not disabling at the time. A December 1998 VA medical record demonstrates that the Veteran complained of pain in the back, shoulders, knees and neck. It was noted that the approximate date of onset for neck shoulder pain was 1987 and that the presumed precipitant was a football injury. A January 2005 VA treatment note includes a study of the left shoulder which found abnormalities of the distal acromion and humeral head consistent with trauma versus surgery versus congenital changes, which is to say that the origin of the Veteran’s abnormalities could be trauma, surgery, or congenital changes. Following remand, the Veteran was afforded an examination of the left shoulder in February 2020. During the examination, the Veteran reported that he had left shoulder injury on active duty playing football and that the condition had since progressed. The Veteran reported constant posterior shoulder pain with restricted movement and weakness. A diagnosis of left shoulder impingement syndrome and residuals of acromioplasty and arthroscopy and subacromial decompression were noted. Following examination of the Veteran and review of the claims file, the VA examiner concluded that it was not at least as likely as not that the Veteran’s left shoulder disorder was etiologically related to (caused by) the Veteran’s service or manifested within a year of service. The examiner explained that the Veteran reported an injury playing football in service, the examiner stated “this writer [the examiner] could not locate any [service treatment records] citing left shoulder injury or problems within 1 year after service showing left shoulder problems. Therefore, the evidence does not indicate the Veteran’s left shoulder residual pain, weakness and limited motion s/p arthroscopy and subacromial decompression is etiologically related to military service or manifested within one year of service.” The examiner further noted that while the Veteran reported a left shoulder injury playing football, the Veteran’s 1965 medical board examination noted a right shoulder injury. The examiner further stated that it was less likely than not that the Veteran’s left shoulder disorder was caused by or proximately due to his service-connected cervical spine disorder, radiculopathy, spine and knee conditions, stating that there was no etiological conditions between the left shoulder disorder and those conditions. The examiner stated that there was no specific evidence on examination or in the medical records that indicated the left shoulder disability was aggravated beyond its natural progression. The evidence weighs against a finding that the Veteran’s left shoulder disorder is related to service. As noted above, a left shoulder injury or disorder is not demonstrated in service treatment notes or for a year thereafter. First record of a left shoulder disability is shown in 1970 wherein the Veteran is shown to have undergone surgery. While such could indicated that the Veteran had a left shoulder disorder that was related to service, the Board finds highly probative the fact that the record includes years of treatment records which note a left shoulder surgery in 1970, but fail to note a football injury in relation to such, even where football injuries are noted and related to injuries to the knees and back. While the Veteran is competent to report events that occurred in service, and symptoms thereafter, the Board finds significant the multiple times in which the Veteran received treatment for, made service connection claims for, and is shown to have discussed other disorders which he attributed to football injuries without attributing a shoulder injury to such. While the Veteran later, first in 1998, attributes his left shoulder disorder to a football injury in service, records that were closer in time to service are afforded more probative weight. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Further, the lengthy passage of time in which the Veteran did not complain of symptoms is negative evidence against the claim. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Forsley v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Further weighing against the Veteran’s claim are treatment notes prior to the Veteran’s claim for service connection in which it is noted that the Veteran injured his left shoulder in 1970. While the Veteran may sincerely believe that his left shoulder complaints are due to football injuries in service, as a layperson, without any demonstrated expertise concerning the etiology of left shoulder disability, he is not competent to provide a medical opinion regarding such a medical nexus. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has considered, too, the articles submitted by the Veteran noting football injuries of others and injuries that can occur due to football. However, as such notes that such injuries can occur, it does not provide the specificity required that such did occur in this case. While such evidence weighs in favor of a finding that a left shoulder disorder might be related to the Veteran’s football playing in service, the preponderance of the evidence, to include the VA examiner’s medical evidence finding no relationship between the Veteran’s left shoulder disorder and service, or between his left shoulder disorder and other service connected disorders, outweigh this evidence. Thus, the Board finds that the evidence goes against a finding that the Veteran had an in-service left shoulder football injury which is related to a present left shoulder disorder. The Veteran is not shown to have a left shoulder injury until 1970, years after the Veteran’s discharge and is not shown to relate such to a football injury until decades after service, despite having ample opportunity during treatment to do so. When the lay evidence is weighed against the medical evidence of record, specifically the findings of the February 2020 VA examiner that the Veteran’s left shoulder disorder is related neither to service nor to a service connected disability, the preponderance of the evidence is against this claim and it must be denied. Entitlement to a Disability Evaluation in Excess of 60 Percent for a Right Knee Disorder, Status Post Right Knee Replacement Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38U.S.C.A. §1155; 38C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds, however, that staged ratings are not warranted here, as the degree of impairment due to the Veteran’s right knee disability has not varied significantly during the appeal period. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). For total knee replacement, Diagnostic Code 5055 indicates that a 100 percent disability rating is warranted for one year following implantation of the prosthesis. With chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is assigned. A 60 percent evaluation is the highest schedular rating available for status post total knee replacement for periods following the one-year time frame immediately following the surgical procedure (during which a 100 percent rating is assigned). Under 38 C.F.R. §4.68, Amputation Rule, the combined rating for disabilities of an extremity shall not exceed the rating for amputation at the elective level, were amputation to be performed. Practically speaking, this means that the Veteran may not be assigned a rating for his right knee disability which is higher than a rating he would receive had his leg been amputated. Amputation at the middle or lower thirds of the thigh under Diagnostic Code 5162, results in a 60 percent rating, equal to the rating assigned. In pertinent part, the procedural history shows that the Veteran was initially awarded service connection for right knee disability and assigned a 30 percent rating effective September 23, 1975. Subsequently, he underwent right knee replacement surgery in July 1991. As a result, he was assigned a 100 percent rating for status post right knee replacement effective June 27, 1991 (the date the Veteran entered the hospital for the knee replacement) and a 30 percent rating effective October 1, 1992. Subsequently, this 30 percent rating was increased to 60 percent effective October 1, 1992. More recently, the RO accepted a communication from the Veteran received in August 2011 as claim for entitlement to a rating in excess of 60 percent for the Veteran’s status post total knee replacement. At an October 2012 VA examination, the examiner noted that the Veteran continued to complain of chronic right knee pain that would increase with flare-ups. Range of motion of the right knee was 100 degrees flexion with evidence of painful motion at 100 degrees and 30 degrees extension with no objective evidence of painful motion. Repetitive use testing showed no decrease in range of motion. The knee was painful to palpation. Stability testing showed 1+ posterior instability, normal medial-lateral instability and no evidence or history of recurrent patellar subluxation/dislocation. The Veteran constantly utilized knee braces and a cane for ambulation and would also occasionally use a walker. The examiner indicated that due to the Veteran’s right knee condition, there was not functional impairment of an extremity such that no effective function remained other than that which would be equally served by an amputation with prosthesis. Additionally, at a separate October 2012 VA examination, the examiner found that the Veteran could walk up to a few hundred yards without the assistance of another person (but with the assistance of his knee braces and cane or walker. Also, the examiner found that the Veteran’s right lower extremity functional limitations included limitation of joint motion, contractures and lack of coordination. A December 2015 private operative report shows that the Veteran underwent revision of his right total knee arthroplasty with extensor mechanism realignment and reconstruction. It was noted that the Veteran tolerated the procedure well and returned to the recovery room in stable condition. As a result of the Veteran undergoing this surgery, the RO granted the Veteran a 100 percent rating for the status post right knee replacement effective December 7, 2015 and then continued the prior 60 percent rating effective February 1, 2017. The Veteran was afforded a VA examination in February 2020 following the Court’s order. Following examination, the examiner was asked to provide an opinion as to the appropriate elective level of amputation were an amputation to be performed. The examiner found that amputation at the middle or lower third of the thigh was appropriate. The examiner explained that the evidence of record indicated right knee traumatic injury with severe traumatic arthritis requiring replacement three times and that based on the severity of the pathology, which was bony, cartilage, and ligamentous in nature, that option was chosen. The examiner stated that there was no specific hypothetical indication for a higher level of amputation. As noted above, the 60 percent rating currently assigned for the Veteran's service-connected status post right knee replacement is the maximum schedular rating available under 38 C.F.R. § 4.71a , DC 5055, following the one year period after implantation of knee prosthesis for service-connected knee disability, during which a 100 percent rating is assigned. The Board finds that a schedular rating in excess of 60 percent is not warranted at any time during the appeal period (aside from the year period following surgery, from December 7, 2015 to January 31, 2017, for which the 100 percent rating has already assigned. In this regard, assignment of a higher rating would exceed the evaluation which is allowable for amputation at the middle or lower thirds of the thigh, amputation of the leg with defective stump, and amputation not improvable by a prosthesis controlled by natural knee action, all of which warrant a 60 percent rating. Consequently, assignment of a schedular rating in excess of 60 percent would result in a combined rating for right knee disability in excess of the rating for amputation at the elective level, were amputation to be performed. Such a rating assignment is specifically prohibited by the amputation rule. 38 C.F.R. §4.68. Thus, the Board is prohibited from assigning a schedular rating in excess of 60 percent. Similarly, although the Veteran has been shown to have some level of right knee instability and although it could be argued that such instability is impairment, which is not contemplated under Code 5055, assignment of separate 10 percent or more rating for such instability under Diagnostic Code 5257, in conjunction with the existing 60 percent rating, would also violate the amputation rule. The Board so finds based upon the February 2020 VA examiner’s finding that the appropriate “election level” under the amputation rule was at the middle or upper third of the thigh. As such, a higher rating is not warranted for amputation resulting in disarticulation with loss of extrinsic pelvic girdle muscles or amputation at the upper third of the thigh. The Board has also considered whether referral for an extraschedular rating is appropriate. Here, the record reflects symptoms such as painful motion, weakness, limited motion, limited mobility, stiffness, incoordination, and decreased speed of joint motion and instability. The Board finds that these symptoms are contemplated under the applicable rating criteria, including under Code 5055, which refers to severe painful motion, weakness, and limitation of motion of the knee joint and including §§ 4.40 and 4.45, which compensate for limitation of motion, and symptoms such as pain, weakness, and instability producing functional limitations. Thus, the Board concludes that the applicable rating criteria adequately contemplate the manifestations of the Veteran's right knee disability and are adequate to evaluate the disability. Accordingly, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). (Continued on the next page)   Finally, the Board notes that in a June 2016 supplemental statement of the case (SSOC) with accompanying rating decision, the RO assigned earlier ratings for the Veteran’s service connected knee disability based on its discovery that the Veteran had had additional knee surgeries in October 1999 and September 2002, and the above mentioned surgery in December 2015. As a result, the RO assigned a 100 percent evaluation effective October 7, 1999; a 60 percent rating effective December 1, 2000; a 100 percent evaluation effective September 24, 2002 and a 60 percent evaluation effective November 1, 2003. In addition, the RO also assigned the above-mentioned 100 percent evaluation effective December 7, 2015 and subsequent 60 percent rating effective February 1, 2017. According to the rules governing effective dates of the assignment of increased ratings, the appeal period for the Veteran’s instant claim for increase dates from August 2010 forward. See 38 C.F.R. § 3.400(o)(2). Accordingly, the Board cannot consider whether any higher rating is warranted for the Veteran’s right knee disability for the period covered by the June 2016 SSOC and rating decision, which is earlier than August 2010 (i.e. the period from October 7, 1999 to August 2010 may not be considered). Id. Upon careful consideration of the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 60 percent for post-right knee replacement. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.