Citation Nr: 21062153 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-40 613A DATE: October 6, 2021 ORDER Service connection for left shoulder arthritis is granted. A disability rating of 60 percent for the residuals of a right total knee replacement from April 1, 2018 is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left shoulder arthritis at least as likely as not was incurred during service. 2. The Veteran's residuals of a right total knee replacement more nearly approximate chronic residuals as evidenced by painful motion with weakness and the need for a cane or wheelchair to ambulate. CONCLUSIONS OF LAW 1. The criteria for service connection for left shoulder arthritis have been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for disability rating of 60 percent for the residuals of a right total knee replacement from April 1, 2018 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1976 to April 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision and a June 2013 rating decision of a Regional Office (RO) for Department of Veterans Affairs (VA). In April 2019, the Veteran testified at a Hearing before the undersigned Veterans' Law Judge and a copy of the transcript has been associated with the claims file. The case was previously before the Board in July 2019, when it was remanded for examination of the Veteran, medical opinions, and to re-scan copies of the Veteran's service treatment records. The requested development has not been fully completed; the RO has not re-scanned legible copies of the relevant service treatment records to the record. Nevertheless, these records affect the Veteran's claim for service connection and because the Board is granting service connection below, remand would only prolong the Veteran's wait for a final decision. Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. 1. Service Connection for Left Shoulder Arthritis. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has a current left shoulder disability. For example, at his July 2020 VA examination he was diagnosed with left shoulder glenohumeral joint osteoarthritis. In May 2011 VA x-ray examination of the left shoulder revealed the presence of minimal degenerative changes of the AC joint. A March 2012 private MRI examination report also reveals the presence of degenerative changes of the left shoulder along with a small partial tear and a cystic lesion. Thus, the remaining question is whether the current left shoulder disability is related to service. The Veteran indicated that he was seen for his left shoulder during service on March 29, 1996 and his service treatment records indicate he was seen for his left arm on this date, although the scanned record is barely legible, and despite the July 2019 Board remand order to re-scan the record so that it was legible, the RO has not accomplished this. The Board acknowledges that the July 2020 medical opinion accompanying the objective findings of the VA examination report indicates that the current left shoulder disorder is not related to service. There is a service treatment records showing treatment for complaints of left arm pain. The Veteran testified that he had left shoulder pain throughout service to the present from such duties as turning patients and carrying x-ray plates during service, and that he was treated with prescribed antiinflammatory medication. The Board notes that the Veteran was a radiologic medical technician during service. Accordingly, in the instant case, he is shown to have some medical education and experience, The Board finds his reports of left shoulder pain during service and to the present to be credible. Resolving doubt in the Veteran's favor, the evidence supports a grant of service connection for left shoulder arthritis, the appeal is granted. 2. Increased Rating for Residuals of a Right Total Knee Replacement from April 1, 2018 Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). The Veteran's appeal for an increased rating for his service-connected right knee disability has been pending since 2011. In February 2017, he had total right knee replacement surgery and is assigned a 100 percent disability rating until is April 1, 2018, at which time it was reduced to 30 percent. The only issue remaining on appeal is entitlement to a disability rating of in excess of 30 percent for the residuals of a right total knee replacement from April 1, 2018. The Veteran is currently assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055, for the residuals of his total right knee replacement. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5055, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to the regulatory change, knee replacement (prosthesis) warranted a 100 percent disability rating for 1 year following implant of the prosthesis, the new regulations reduce this to only 4 months, however this is inapplicable to the facts of the present case. The other rating criteria are the same. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 30 percent rating is warranted for intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262. A 30 percent rating is the minimum assignable disability rating for a knee replacement. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2020) (2021). In August 2020, the only VA examination of the Veteran's knee after his knee replacement surgery was conducted. The Veteran reported flare-ups of knee pain with walking, bending, and standing long periods. Range of motion testing of the right knee revealed flexion to 20 degrees and extension to 5 degrees with pain being exhibited on weight bearing and range of motion. Repetitive use resulted in reduction of flexion to 10 degrees but extension to 5 degrees with functional loss manifested by pain, fatigue, weakness and lack of endurance. Additional symptoms of swelling, interference with sitting and standing, and complaints of pain with prolonged standing were noted by the examiner. The Veteran used a cane to ambulate. The examiner specifically indicated that the Veteran had intermediate degrees of residual weakness, pain or limitation of motion. However, the Veteran's severely limited range of motion, along with symptoms of pain and weakness on repetitive motion testing, swelling of the knee joint, and use of a cane to ambulate more nearly approximate chronic residuals consisting of severe painful motion or weakness. Accordingly, a 60 percent rating is assigned for the Veteran's residuals of a right total knee replacement effective April 1, 2018. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Havelka, 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.