Citation Nr: 21070583 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 15-41 573 DATE: November 24, 2021 ORDER Entitlement to service connection for degenerative joint disease of the lumbar spine is granted. Entitlement to service connection for right knee osteoarthritis is granted. Entitlement to service connection for left knee osteoarthritis is granted. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to an initial rating in excess of 20 percent for right shoulder degenerative joint disease is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's currently diagnosed degenerative arthritis of the lumbar spine was incurred in service. 2. The evidence is in relative equipoise as to whether the Veteran's currently diagnosed right knee osteoarthritis was incurred in service. 3. The evidence is in relative equipoise as to whether the Veteran's currently diagnosed left right knee osteoarthritis was incurred in service. 4. The Veteran's diabetes mellitus, type II, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of service. 5. The Veteran's right shoulder degenerative joint disease has not resulted in range of motion functionally limited to midway between side and shoulder level, or worse despite pain. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38C.F.R. §§3.102, 3.303, 3.304. 2. The criteria for service connection for right knee osteoarthritis have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38C.F.R. §§3.102, 3.303, 3.304. 3. The criteria for service connection for left knee osteoarthritis have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38C.F.R. §§3.102, 3.303, 3.304. 4. The criteria for service connection for diabetes mellitus, type II, have not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.309. 5. The criteria for an initial rating in excess of 20 percent for right shoulder degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to August 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2013, July 2016, August 2017, and April 2018 rating decisions. In February 2019, the Veteran testified at a videoconference Board hearing before the undersigned, and a transcript is of record. In July 2019, the Board remanded the case for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). 1. Entitlement to service connection for degenerative joint disease of the lumbar spine 2. Entitlement to service connection for right knee osteoarthritis. 3. Entitlement to service connection for left knee osteoarthritis. The Board finds that the evidence supports granting the Veteran's claims of service connection for a lumbar disability and for right and left knee disabilities. The Veteran believes that his back and bilateral knee disabilities are related to his military duties while serving as a mechanic and a cook during service. During his Board hearing, the Veteran testified that as a mechanic, he worked on a concrete floor all day, lifted heavy objects, and did lots of bending, stooping, and crawling. He also stated that he did a lot of walking. He stated that he had back pain all day every day while in the service for which he was seen about every three months, and was kept supplied with Valium for both back and knee pain. He stated that he was seen in service for hip pain that was located at the lower back just above the gluteus maximus. He stated that he was told that it was not a hip problem but a back problem. He stated that, while he was stationed in Germany, his duties were as a cook, but when he was sent to Georgia, he was reassigned as a mechanic. He stated that in Georgia they did things differently than in Germany, and he could not catch on because they did not have the mechanic's manuals and tools to which he had access in Germany. He stated that he started having back problems, but his commanding officer did not care about that. He stated that he has had painful knees ever since service and he was told he had arthritis in them. During a January 2020 VA examination, the Veteran reported that in 1982, he noticed gradual pain especially when climbing truck and other activities. He stated he was given Valium and muscle relaxing creams. A January 2016 magnetic resonance imaging (MRI) of the lumbar spine revealed multilevel degenerative changes of the lumbar spine causing varying degrees of neural foraminal and spinal canal stenosis, with moderate spinal canal stenosis at L3-L4 and severe bilateral neural foraminal narrowing at L5-S1, left greater than right. X-ray of the lumbar spine showed degenerative disc and facet disease in June 2016. A January 2020 x-ray of the bilateral knees showed osteoarthritis, bilaterally. Thus, the question becomes whether the current lumbar spine and bilateral knee disabilities are related to service. On this question there are medical opinions in favor of and against the claims. On the one hand, the evidence in favor of the claims includes a June 2019 private orthopedic surgeon's opinion who reviewed the Veteran's claims file, including his entire medical history, and conducted a physical examination. The physician provided an opinion that based on the Veteran's military occupation as a mechanic and a cook, and given the history that as a mechanic, he spent many long hours on his feet on a concrete floor and had to bend, crawl, and lift, it is more likely than not that his lumbosacral spine and bilateral knee conditions are service related. The Board finds that this private medical opinion is probative because it adequately addresses the Veteran's lay statements and provided adequate rationales for a nexus between the Veteran's service and lumbar spine and bilateral knee conditions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). On the other hand, the evidence weighing against the claims includes a January 2020 VA examiner's opinion. In that opinion, the VA examiner opined that the claimed lumbar spine and bilateral knee conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale for this opinion was that medical records showed no evidence of degenerative joint disease during service and there was no evidence of chronic back or knee condition in service. The Board notes that the fact that there is no documentation of treatment in the Veteran's service treatment records is not necessarily fatal to the Veteran's claims and cannot be the only basis by which to reject a possible nexus to service. See Buchanan v. Nicholson, 451 F.3d at 1336-37 (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."). The Board finds the record evidence to be in relative equipoise as to whether the Veteran's current lumbar spine and bilateral knee disabilities are related to active service. Accordingly, and after resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for a lumbar spine disability and for right and left knee disabilities is warranted. See 38 C.F.R. § 3.102. 4. Entitlement to service connection for diabetes mellitus, type II. The Veteran has made no assertions regarding the potential relationship between his diabetes mellitus and service, aside from reporting that his diabetes was diagnosed in 1989 when he went to the VA clinic. However, the Board concludes that the evidence of record is against a finding that the Veteran's current diabetes had its onset in service or is related to any injury, event, or illness in service. While the Veteran has a current diagnosis of diabetes mellitus, and while he is competent to report experiencing symptoms capable of lay observation, there is no basis of record for linking such disorder to service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). In that regard, the Veteran has not asserted that diabetes had its onset in or is otherwise related to his period of active, and there is no evidence of record to suggest such a correlation. Rather, the Veteran's VA treatment records reflect that he was initially diagnosed with diabetes mellitus in October 2015, over 30 years after military discharge. The Veteran's assertions that his diabetes was diagnosed in 1989, while competent, are not fully credible. In this regard, the Veteran has made inconsistent and contradictory statements regarding the onset of his diabetes. Specifically, during the Board hearing and in recent statements (i.e., contemporaneous with his current service connection claim), the Veteran reported that his diabetes was first diagnosed in 1989. However, VA treatment records dated prior to October 2015 specifically noted that the Veteran did not have diabetes. Moreover, a December 2011 VA primary care note reflects that he denied being diabetic. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). The Board also finds it significant that the Veteran's previous applications for compensation, filed in December 2008 (for depression) and December 2012 (for a back condition) did not include or mention diabetes. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upholding Board's denial of service connection and finding that a veteran's recent post-service account of in-service events was not credible because the Veteran had previously given other histories and theories that did not mention the alleged in-service event, and first "came up with the story" years after service and in connection with the compensation claim). The Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the current lay statements are found to lack credibility because they are inconsistent with and directly contradicted by other lay and medical evidence of record, including the Veteran's own statements, showing that the Veteran did not experience diabetes symptoms until many years after service. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). As such, there is no basis for determining that the Veteran's diabetes mellitus had its onset during or soon after service (to include manifesting to a compensable degree within the presumptive period after service for qualifying chronic disabilities), thereby negating theories of direct or presumptive service connection. In sum, the evidence of record fails to reflect that the Veteran's current diabetes mellitus is related to his period of active service or manifested soon after service. As such, service connection for diabetes mellitus is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim for service connection for diabetes mellitus, type II. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 5. Entitlement to an initial rating in excess of 20 percent for right shoulder degenerative joint disease. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. 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; 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 criteria."). The Veteran's right shoulder disability is rated under Diagnostic Codes 5003-5201. Hyphenated codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. The hyphenated diagnostic codes in this case indicate that degenerative arthritis under Diagnostic Code 5003 is the service-connected disability and that limitation of motion of the arm under Diagnostic Code 5201 is the residual condition. Prior to February 7, 2021, 38 C.F.R. § 4.71a, Diagnostic Code 5201 provided that a 20 percent rating is warranted for limitation of motion of the major arm and minor arm at shoulder level. A 20 percent rating is assigned for limitation of motion of the minor arm to midway between the side and shoulder level. A 30 percent rating is assigned for limitation of motion of the major arm to midway between the side and shoulder level. A 30 percent rating is assigned for limitation of motion of the minor arm to 25 degrees from the side. A 40 percent rating is assigned for limitation of motion of the major arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Effective February 7, 2021, Diagnostic Code 5201 remains largely unchanged as it continues to provide for ratings based on limitation of motion of the arm; however, the revised criteria include range of motion findings to assist the rater in determining the appropriate disability evaluation. A 20 percent rating is warranted for limitation of motion of the major arm and minor arm at shoulder level, which is now defined as flexion and/or abduction limited to 90 degrees. A 20 percent evaluation is assigned for limitation of motion of the minor arm to midway between the side and shoulder level, which is now defined as flexion and/or abduction limited to 45 degrees. A 30 percent rating is assigned for limitation of motion of the major arm to midway between the side and shoulder level, which is now defined as flexion and/or abduction limited to 45 degrees. A 30 percent rating is assigned for limitation of motion of the minor arm to 25 degrees from the side. A 40 percent rating is assigned for limitation of motion of the major arm to 25 degrees from the side. For VA compensation purposes, normal range of motion for the shoulder is 180 degrees of forward flexion, 180 degrees of abduction, and 90 degrees of external and internal rotation. See 38 C.F.R. § 4.71, Plate I. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that increased ratings are not warranted for the Veteran's service-connected right shoulder disability for entire rating period on appeal. In this regard, a review of the evidence does not demonstrate limitation of motion of the arm midway between the side and shoulder level at any point during the rating period. An October 2017 VA treatment record noted the Veteran's shoulder abduction was restricted at 90 degrees. The January 2020 VA examination report noted right shoulder flexion to 150 degrees and abduction to 150 degrees. As such, an increased rating is not warranted under Diagnostic Code 5201. In an effort to afford the Veteran the highest possible rating, the Board has also considered whether any other rating criteria are applicable. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). There is also no evidence of ankylosis of the scapulohumeral articulation, other impairment of the humerus, or impairment of the clavicle or scapula to warrant higher ratings under Diagnostic Codes 5200, 5202, and 5203. The Board has also considered the provisions of 38 C.F.R. § § 4.40, 4.45, 4.59, and the holding in DeLuca. However, increased rating for the Veteran's right shoulder disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms and impairment are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran reported right shoulder pain throughout the appeal period. However, the effect of the pain in the Veteran's right shoulder is contemplated in the currently assigned rating. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased rating. The January 2020 VA examiner found that range of motion was not painful on active or passive testing. There was no additional limitation of motion after three repetitions. It was noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare ups. Accordingly, the Board concludes that an increased or separate rating is not warranted for the Veteran's service-connected right shoulder disability under DeLuca. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the current appeal. See 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for hypertension. The Board remanded the claim to provide the Veteran a VA examination and obtain a medical opinion addressing the etiology of his hypertension, taking into account his statements about his symptoms. In this regard, the Veteran asserts that he had high blood pressure prior to entering service, which was aggravated with training. During his February 2019 Board hearing, he stated that he had high blood pressure during basic training, and he had massive headaches because of it. He stated that he was put on one or two days of bedrest to reduce his blood pressure; he was not given medication. He stated that after service, when he went to the emergency room for something else, he would be given one or two pills for high blood pressure, but he could not afford to fill the prescriptions. He stated that when he started going to the VA clinic, he started medication, which he still takes. Pursuant to the Board's remand, the Veteran was afforded a VA examination in January 2020. The examiner opined that the Veteran's hypertension, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated by an in-service injury, event or illness. The examiner then noted that there was no evidence of preexisting hypertension nor evidence of aggravated in service treatment records because there was no diagnosis or treatment for hypertension in service treatment records. The examiner also opined that the Veteran's hypertension was less likely than not incurred in or caused by an in-service injury, event or illness for the same rationale that there was no diagnosis or treatment for hypertension in service treatment records. In a July 2020 addendum, the VA examiner again noted there was no diagnosis or treatment for hypertension in service and separation examination summary of defects and diagnosis none, no recommendation for further follow up. The Board finds that the VA medical opinion is inadequate because the opinion lacks any discussion of the assertions presented by the Veteran. Consequently, another remand is necessary to comply with the Board's remand and VA's duty to assist. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 2. Entitlement to a TDIU. The claim for a TDIU is inextricably intertwined with the other issues on appeal. See 38 C.F.R. § 19.31; Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As such, the service connection issue must be adjudicated by the RO prior to the adjudication of entitlement to TDIU benefits. See Harris, 1 Vet. App. at 183. The matters are REMANDED for the following actions: 1. Obtain all updated treatment records for the Veteran from the VA Medical Center in West Palm Beach, Florida, and all associated outpatient clinics, dated from March 2020 to the present. All attempts to obtain those records should be documented in the claims file. 2. Arrange to obtain an addendum opinion from a VA examiner with the appropriate expertise. Arrange for the Veteran to undergo VA examination, if one is deemed medically necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented history and assertions. If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and clinical findings should be reported in detail. With respect to the Veteran's hypertension, the examiner should render an opinion, based on sound medical principles, as to (1) whether the disability clearly and unmistakably existed prior to service entrance, and, if so (2) whether the disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. The examiner is instructed that to find that the disability in question clearly and unmistakably was not aggravated by service, the evidence must be obvious, manifest, and undebatable in establishing that it was not aggravated by service. If the examiner finds that the Veteran's hypertension did not clearly and unmistakably exist prior to service entrance, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension is etiologically related to his military service, specifically the claimed symptoms headaches and bed rest in service. The examiner should provide a fully reasoned explanation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is asked to fully consider the Veteran's lay statements regarding the onset and symptoms of hypertension in detail. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must note that the fact that there is no documentation of treatment in the Veteran's service treatment records is not necessarily fatal to the Veteran's claim and cannot be the only basis by which to reject a possible nexus to service. 3. After completing the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.