Citation Nr: 21065340 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-14 436 DATE: October 25, 2021 ORDER Entitlement to service connection for a left shoulder condition is denied. Entitlement to service connection for a back condition is denied. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for residuals of Lyme disease is denied. Entitlement to service connection for a pulmonary condition, variously diagnosed as mild emphysematous changes, mild biapical scarring, and scattered lung nodules, is denied. Entitlement to an increased rating in excess of 20 percent for a right shoulder condition is denied. An effective date earlier than October 14, 2014 for the award of a 20 percent evaluation for the Veteran's right shoulder condition is denied. FINDINGS OF FACT 1. The Veteran's left shoulder condition is not etiologically related to service or his service-connected right shoulder condition. 2. The Veteran's back condition is not etiologically related to service or his service-connected ankle condition. 3. The Veteran's left knee condition is not etiologically related to service or his service-connected ankle condition. 4. The Veteran's right knee condition is not etiologically related to service or his service-connected ankle condition. 5. The Veteran does not have residuals of Lyme disease that are related to service. 6. The Veteran's pulmonary condition, variously diagnosed as mild emphysematous changes, mild biapical scarring, and scattered lung nodules, is not etiologically related to service. 7. The Veteran's right shoulder condition was not manifested by motion limited to midway between side and shoulder level, ankylosis, or impairment of the humerus, clavicle, or scapula. 8. It is not factually ascertainable that the Veteran's right shoulder condition increased in severity to warrant a 20 percent disability rating prior to October 14, 2014. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left shoulder condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria to establish service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria to establish service connection for residuals of Lyme disease have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria to establish service connection for a pulmonary condition, variously diagnosed as mild emphysematous changes, mild biapical scarring, and scattered lung nodules, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for an increased rating greater than 20 percent for a right shoulder condition have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 8. The criteria to establish an effective date earlier than October 14, 2014, for an increased rating of 20 percent for a right shoulder condition have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to April 1997. The Veteran appealed August 2012 and February 2015 rating decisions by the Agency of Original Jurisdiction (AOJ). In April 2021, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. Service Connection A veteran is entitled to the Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As an initial matter, the Veteran's representative argues that the opinions of record do not indicate that the Veteran's November 1996 separation examination noted arthritis and swollen or painful joints. See February 2016 notice of disagreement (NOD). However, the notation of arthritis clearly correspondents to numbered notes that refer to the Veteran's ankle condition. Therefore, the notation is not probative in this case. Additionally, the Veteran's representative generally argues that the examiners did not have the requisite expertise and requested that an opinion be conducted by an orthopedic specialist. See February 2016 NOD. However, the representative did not explain why an orthopedic specialist was needed in this case or why the Veteran's disability picture is so unique as to require examination by a specialist. Given the vague nature of the representative's complaints, and the lack of any real evidence in the record suggesting that the VA examiners were somehow unqualified to offer opinions on orthopedic issues, the representative's arguments do not avail the Veteran. Specifics about individual VA examination and opinions will be discussed in greater detail below. 1. Left Shoulder The Veteran is diagnosed with a left shoulder strain. See January 2016 examination report. The Veteran claims his left shoulder condition is secondary to his service-connected right shoulder condition. The January 2016 examiner did not find a nexus to service or between the Veteran's left and right shoulder conditions. The June 2021 opinion noted that medical literature does not support that one joint or extremity aggravates another and that it does not spread to another joint or cause damage to the other joint. Overall, the June 2021 examiner found the left and right shoulder conditions were not related. The Board finds the June 2021 opinion competent and probative with adequate rationale. On a direct basis, the Veteran service treatment records (STRs) specifically refer to treatment for the right shoulder. The medical evidence does not note left shoulder issues until many years after separating from service. The January 2016 examination report specifically noted the Veteran's statement of an onset for left shoulder pain a few years prior. The evidence does not demonstrate, and Veteran does not argue, that there was a specific injury regarding the left shoulder in service. There is not a positive medical nexus opinion to the contrary and the Veteran does not argue his left shoulder condition is directly related to service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a left shoulder condition is denied. 2. Back The Veteran is diagnosed with degenerative arthritis of the spine and vertebral fracture. See January 2015 examination report. The Veteran was treated for back issues during service. See, e.g., February 1992, May 1994, and January 1997 STRs. The Veteran noted running and diving contributed to his condition. See January 2015 examination report. As to nexus, the January 2015 examiner did not find a nexus to service and noted the Veteran could not recall back problems during service, that he had a gradual onset of back pain, that there was no objective evidence of a back condition until 2000. Medical records noted back pain treatment in December 2004. The Veteran stated he would self-medicate his condition. See February 2016 NOD. Furthermore, the Veteran argued that his back condition is secondary to his service-connected ankle condition. See December 2018 VA Form 9. The June 2021 opinion did not find a secondary nexus given a 15 year-year gap from in-service treatment to post-service back complaints and medical evidence does not suggest that one joint injury significantly impacts the spine unless it result in major muscle or nerve damage. However, such is not supported by the record. Therefore, the June 2021 did not find the Veteran's back condition was caused or aggravated by the ankle condition. Although the Veteran was treated for back issues during service, medical evidence suggests that they resolved. The Veteran's separation examination did not note back issues. The Veteran did not complain of back issues until years after separating from service. Competent medical opinions with adequate rationale have not found a nexus to service or the Veteran's service-connected ankle condition. There is not a positive medical nexus opinion to the contrary. Although the Veteran may have self-medicated his condition at times, evidence does not suggest consistent treatment for or consistent issues with a back condition since separating from service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a back condition, variously diagnosed as degenerative arthritis of the spine and vertebral fracture, is denied. 3. Knees The Veteran is diagnosed with degenerative arthritis of the bilateral knees. See January 2015 examination report. The Veteran had bilateral knee issues during service. See, e.g., April 1985, February 1987, and February 1989 STRs. The Veteran related his issues to running and diving during service. See January 2015 examination report. As to nexus, the January 2015 examiner did not find a nexus to service and noted that medical evidence would not establish a knee condition until 15 years after treatment and 3 years after separating from service. The January 2015 examiner also noted the Veteran's contentions regarding the relationship between his knee conditions and Lyme disease. However, as discussed below, the Veteran is not service connected for Lyme disease or any residuals. Nevertheless, the January 2015 examiner found a negative nexus between the Veteran's knees and Lyme disease treated in service since early treatment, as done in this case, prevents development of such joint issues. The Veteran additionally claimed his bilateral knee condition secondary to his service-connected ankle condition. See December 2018 VA Form 9. The June 2021 opinions also did not find a nexus to service given a large gap from service before any diagnosis. The opinion specifically noted that running several miles and diving are not indicative as causes of knee osteoarthritis. The June 2021 examiner additionally stated that medical evidence does not suggest that one joint injury significantly impacts the knees unless it result in major muscle or nerve damage. However, such is not supported by the record. Therefore, the June 2021 did not find the Veteran's bilateral knee condition was caused or aggravated by his ankle condition. Although the Veteran was treated for bilateral knee issues during service, medical evidence suggests that they resolved. The Veteran's separation examination did not note knee issues. The Veteran did not complain of knee issues until years after separating from service. Competent medical opinions with adequate rationale have not found a nexus to service or the Veteran's service-connected ankle condition. There is not a positive medical nexus opinion to the contrary. Although the Veteran may have self-medicated his condition, evidence does not suggest consistent treatment for, or consistent issues with, a knee condition since separating from service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a bilateral knee condition is denied. 4. Lyme Disease The Veteran contends that he had body aches during service. See February 2016 NOD. The April 1993 examination in the Veteran's STRs noted a diagnosis of Lyme disease in November 1989. The June 2021 examination report noted a history of Lyme disease in 1989 and that the Veteran was on medication for 2 weeks after his tick bite. The examination report noted current symptoms of joints hurting and sweating as well. However, the June 2021 opinion noted no chronic diagnosis for Lyme disease residuals, only subjective symptoms, that there was no complications of Lyme disease in the STRs years after the diagnosis, that the Veteran had early treatment for Lyme disease, and that Lyme disease is not responsible for the Veteran's current symptoms. Overall, the evidence does not note an active diagnosis or current treatment for Lyme disease or residuals during the period on appeal. Competent medical evidence notes the Veteran's symptoms are not related to Lyme disease. As such, the Veteran does not have any current active Lyme disease residuals related to service. The Veteran has not expressed other possible symptoms that could be related to Lyme disease or amount to functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). Nevertheless, the Veteran is not competent to attest to whether any symptoms are related to or residual of Lyme disease. As the preponderance of the evidence reflects that the Veteran has not suffered from Lyme disease, or residuals of Lyme disease, during the period on appeal, the claim is denied. 5. Pulmonary The Board notes the Veteran is already service connected for sleep apnea. The August 2020 opinion noted diagnoses of mild emphysematous changes, mild biapical scarring, and scattered lung nodules. The Veteran was treated for sinus and respiratory issues during service. See, e.g., October 1979, December 1992, and May 1994 STRs. The Veteran was also a diver in the U.S. Navy. The July 2012 examination report did not note a respiratory condition and noted the Veteran's statement of denying a chronic pulmonary condition. The August 2019 examination report noted the Veteran was unaware of any abnormalities, that he had tiny pulmonary nodules that are stable and benign, and did not find a nexus to in-service infections which were acute and resolved in a few days without sequelae. The Veteran also did not have chronic sinusitis or bronchitis. The August 2020 opinion noted a benign etiology, mild emphysematous changes, mild biapical scarring, benign scattered lung nodules, and a negative nexus of these conditions to service. The August 2020 opinion reviewed submitted articles of record and noted emphysema was related to smoking and pneumonia scarring normally occurred in lower bases of the lungs, unlike in the Veteran's case. Furthermore, the benign nodule is not debilitating and occurred many years after service. The June 2021 opinion similarly found a negative nexus to service and also noted that diving does not lead to such conditions, but rather air irritants as smoking, as well as age, and obesity. The Board finds the opinions of record competent and probative with adequate rationale. Overall, multiple competent medical opinions of record have not found the Veteran's various conditions related to the lungs related to service. The Veteran did not separate from service with pulmonary issues. Although the Veteran was treated for respiratory infections during service, they resolved without residual symptoms. Evidence notes that the Veteran previously was a smoker for several years. The Veteran would not complain about pulmonary issues until decades after service. There is not a positive nexus opinion to the contrary. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a pulmonary condition, variously diagnosed as mild emphysematous changes, mild biapical scarring, and scattered lung nodules, is denied. Increased Rating When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the new regulations are not advantageous to the Veteran since they now reference specific range of motion (ROM) measurements that the Veteran's medical records do not demonstrate. Therefore, the Board will not address them in this decision. Under Diagnostic Code 5201, a rating of 20 percent is warranted when motion of the minor or major arm is limited to shoulder level. A 20 percent evaluation is also warranted for limitation of motion of the minor arm midway between the side and shoulder level. A 30 percent rating contemplates limitation of motion of the minor arm to 25 degrees from the side or limitation of motion of the major arm to midway between the side and shoulder level. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The January 2016 examination report noted the Veteran is right side dominate and that he cannot do much with his arms above his head due to pain after a couple minutes raised in the air. The June 2021 examination report noted the Veteran cannot reach above his head, cannot use his arm to turn a wrench or tool during flare-ups, or drive long periods. Flexion and abduction are noted as 140 degrees during flare-ups. Overall, the evidence does not reflect functional impairment congruent with a higher rating for the right shoulder. The Veteran is still able to raise his right arm to at least shoulder level before doing activities above shoulder level that creates difficulties. Thus, the Board finds that the currently assigned 20 percent rating is appropriate, even after considering his statements and functional limitations during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran also has not been found to have, and the evidence does not demonstrate, ankylosis or impairment of the humerus, clavicle, or scapula as to warrant a higher or separate rating for the right shoulder. As such, the preponderance of the evidence is against the claim for an evaluation greater than 20 percent for a right shoulder condition and an increased rating is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Effective Date The October 2018 statement of the case (SOC) addresses an earlier effective date regarding an increased rating for the Veteran's right shoulder condition. The April 2021 Board decision specifically noted the effective date issue regarding the increased rating for the Veteran's right shoulder condition was for consideration as part of the increased rating claim. Therefore, the Board will address an earlier effective date regarding the right shoulder increased rating in this decision. Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). Here, a July 1998 rating decision granted service connection for a right shoulder condition. The Veteran did not perfect his appeal after the July 1998 SOC. Hence, the July 1998 rating decision became final. Thus, the date of claim for the right shoulder increased rating claim on appeal is October 14, 2014. An October 2018 rating decision combined and increased the Veteran's right shoulder condition rating to 20 percent effective October 14, 2014. Therefore, the crux of this case is determining whether it was factually ascertainable that the Veteran's right shoulder condition warranted an increase from to 20 percent within a year of October 14, 2014. As stated above, the Veteran's right shoulder condition is rated under Diagnostic Code 5201 and generally requires limited ROM to midway between the side and shoulder level. However, neither the Veteran nor the evidentiary record suggest how or why it was factually ascertainable that the Veteran's right shoulder condition increased from 10 percent disabling within a year of October 14, 2014. Medical evidence regarding the shoulder was not added within a year of October 14, 2014. Therefore, the Board finds the criteria for an effective date earlier than October 14, 2014 for a 20 percent rating of the Veteran's right shoulder condition is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, Associate 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.