Citation Nr: 21074885 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-02 593 DATE: December 16, 2021 ORDER New and material evidence has been presented, and the claim for service connection for a cervical spine disorder is reopened. A rating in excess of 20 percent for right shoulder disability is denied. REMANDED Service connection for a cervical spine disorder is remanded. Service connection for a left ankle disorder is remanded. Service connection for a right ankle disorder is remanded. A rating in excess of 10 percent for a left knee disability is remanded. A rating in excess of 10 percent for a right knee disability is remanded. FINDINGS OF FACT 1. A December 2013 rating decision denied the service connection claim for a cervical spine disorder; the evidence received since the December 2013 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the service connection claim for a cervical spine disorder, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 2. The Veteran's right shoulder disability is manifested by no more than painful motion of the shoulder. CONCLUSIONS OF LAW 1. New and material evidence has been submitted, and the Veteran's service connection claim for a cervical spine disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for a rating in excess of 20 percent for right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1992 to February 2001. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2015 and August 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran perfected the service connection claims for neck condition and bilateral ankle tendonitis. In July 2019, the Veteran perfected the increased rating claims for right shoulder sprain and bilateral knee patellofemoral syndrome. The appeal for the increased rating claims has been merged into the appeal for the service connection claims. As such, the issues are included on the title page. Reopening Service Connection Claim New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The Veteran filed a service connection claim for a cervical spine disorder in November 2012, which was denied by December 2013 rating decision. He did not submit any new and material evidence pertaining to this issue within a year of the rating decision, meaning that the December 2013 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the December 2013 rating decision, the evidence of record included the Veteran's STRs, VA treatment records, and private treatment records. The RO denied the claim as the medical evidence did not show that the Veteran's cervical spine disorder was related to his active service. In December 2014, the Veteran filed a request to reopen his previously denied service connection claim for a cervical spine disorder. He asserted that he developed chronic neck pain during his active service. Evidence received since the December 2013 rating decision includes additional VA medical records, private medical records, and the lay statements of Veteran. This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Accordingly, the claim is reopened. Increased Rating 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran asserted that he was entitled to a higher rating for this right shoulder sprain. VA received an increased rating claim on June 20, 2016. In an October 2018 statement of the case (SOC), the RO increased the rating from 10 percent to 20 percent effective June 20, 2016. Thus, the relevant period for this appeal before the Board begins on June 20, 2015, one year prior to receipt of the claim for increase. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran's right shoulder sprain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021, including Diagnostic Code 5201. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to February 7, 2021, under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between the side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from the side warrants a maximum 30 percent rating for the minor extremity and a maximum 40 percent rating for the major extremity. From February 7, 2021, under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran underwent a VA contract examination in January 2018. The Veteran was diagnosed with right shoulder impingement syndrome and bilateral shoulder sprain. The Veteran complained of chronic and continued bilateral shoulder pain with loss of range of motion. He denied locking, instability, or effusion. The examiner indicated the Veteran was right-handed. He stated that prolonged heavy lifting, reaching, pushing, and pulling caused flare-ups of pain in the shoulders. He reported functional impairment of limitations of prolonged overhead reaching, pushing, pulling, and heavy lifting. Range of motion testing revealed right shoulder flexion limited to 170 degrees; abduction limited to 160 degrees; and normal internal and external rotation. The examiner noted that the Veteran's decreased range of motion caused limitation of prolonged overhead reaching, pushing, pulling, and heavy lifting. He noted that pain in flexion and abduction caused functional loss. He noted there was evidence of pain with weight bearing and non-weight bearing. There was crepitus. There was evidence of localized tenderness or pain on palpation that was mild. The Veteran was able to perform three repetitions without additional loss of function or range of motion. The examiner noted that pain limited functional ability with flare-ups, but there was no change in terms of range of motion. An additional factor contributing to disability was less movement than normal. Muscle strength was normal. There was no muscle atrophy, ankylosis, or instability. There was no loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. There were no other pertinent physical findings or symptoms related to the diagnosed condition. The examiner noted that the Veteran's diagnosed condition impacted his ability to work in that he had limitation of prolonged overhead reaching, pushing, pulling, and heavy lifting. The examiner noted that the Veteran could perform general activities without significant restrictions. There is no other VA or private examination of record during the appeal period, and his VA and private treatment records during the appeal period do not reveal range of motion testing of his right shoulder. After careful review of the evidentiary record, the Board concludes that the preponderance of the evidence is against a higher rating for the right shoulder disability. Reviewing the medical evidence of record, the Veteran's right shoulder is manifested by, at worst, limitation of flexion limited to 170 degrees and abduction limited to 160 degrees of abduction with complaints of pain. His right shoulder disability does not show limitation of motion at shoulder level or midway between side and shoulder level, but rather close to normal range of motion even after having considered repetitions and flare-ups. The Board acknowledges the Veteran's lay reports of symptoms and that there is functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he is limited from prolonged overhead reaching, pushing, pulling, and heavy lifting would not result in symptoms more nearly approximating limitation of motion of midway between side and shoulder level required for the 30 percent rating for the major side under 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board has also considered the amendments to the rating criteria effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The amendments to Diagnostic Code 5201 clarifying that limitation of motion of arm includes either flexion or abduction does not impact the Veteran's claim as, effective February 7, 2021, there is no evidence of any limitation at shoulder level (flexion and/or abduction limited to 90°) or midway between side and shoulder level (flexion and/or abduction limited to 45°). The Board has considered whether any other diagnostic codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. There is no evidence of ankylosis of the right scapulohumeral articulation under Diagnostic Code 5200. There is no evidence of other impairment of the humerus under Diagnostic Code 5202. Finally, under Diagnostic Code 5203, 20 percent is the highest schedular rating available; there also is no evidence of impairment of the clavicle or scapula. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for the right shoulder disability during the appeal period. The benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND The Veteran asserted that his cervical spine disorder and bilateral ankle disorders were related to his active service. A large amount of evidence has been added to the claims file since the December 2016 statement of the case (SOC). In a letter dated September 17, 2021, the Board advised the Veteran that additional medical records were added to the claims file after the December 2016 SOC, and that the Veteran had the right to have the RO review it before the Board does. The letter informed him that he could waive this right by submitting a waiver in writing and included an Additional Evidence Response Form. It further noted that he had 45 days from the date of the letter to respond, and that if the Board have not heard from him by the end of the 45-day time period, the Board will remand the appeal to the RO for review. More than 45 days has, and there has been no response from the Veteran or his representative. Remand for compliance with 38 C.F.R. § 19.31(b)(1) is therefore warranted for the service connection claims for cervical spine disorder and bilateral ankle disorders. The Veteran asserted that he was entitled to higher ratings for his bilateral knee disabilities. The Veteran is in receipt of 10 percent rating each for his right and left patellofemoral syndrome with shin splints under Diagnostic Code 5262-5260. VA received an increased rating claim on June 20, 2016; the appeal period before the Board begins on June 20, 2015, one year prior to receipt of the claim for increase. Gaston, 605 F.3d 982. The January 2018 VA contract exam noted diagnoses of bilateral patellofemoral syndrome and shin splints. The range of motion testing revealed flexion limited to 120 degrees and normal extension for both knees, with consideration of repetitive use and functional loss due to pain. Thus, the Veteran is not entitled to a higher rating based on limitation of motion under Diagnostic Code 5260. However, the January 2018 exam noted diagnosis of bilateral shin splints, and the examiner noted there was "pain, and discomfort after repetitive use in the lower half of the posteromedial border of the tibia, of the foreleg which begins as a dull ache followed by gradually worsening pain." The examiner also noted there was "tenderness, swelling and/or induration at the reported site appreciated during physical examination today." As noted above, the rating criteria pertaining to musculoskeletal disabilities were revised effective February 7, 2021, and it included Diagnostic Code 5262. 85 Fed. Reg. 76453 (Nov. 30, 2020). Under the former rating criteria for Diagnostic Code 5262, which evaluates impairment of the tibia and fibula, a 10 percent rating is assigned for slight knee or ankle disability; a 20 percent rating for moderate knee or ankle disability; a 30 percent rating for malunion with marked knee or ankle disability; and a 40 percent rating for nonunion with loose motion, requiring a brace. Under the revised criteria, a noncompensable rating is assigned for shin splints requiring treatment for less than 12 consecutive months of one of both lower extremities; a 10 percent rating is assigned for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either show orthotics or other conservative treatment of one or both lower extremities; a 20 percent rating is assigned for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment for one lower extremity; a 30 percent rating is assigned for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of both lower extremities; a 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula must be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Based on the evidence of record, it is not clear whether the Veteran meets the criteria for a higher rating based on the revised criteria, and the VA examination of record have not directly spoken to those criteria. Accordingly, remand is required to ascertain whether a higher rating is warranted under the revised criteria. The matters are REMANDED for the following action: 1. Readjudicate the service connection claims for cervical disorder and bilateral ankle disorders in light of all the additional evidence added to the record since the December 2016 SOC. If any of the benefits sought on appeal are denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The case should then be returned to the Board, if otherwise in order. 2. Schedule the Veteran for a VA examination to determine the current severity of the Veteran's bilateral patellofemoral syndrome with shin splints. The claims folder must be made available for review and the examiner must report all manifestations related to the Veteran's disability. The examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the bilateral knee condition. All functional limitations present after repetition over time and during flare-ups should be reported. If for any reason the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The VA examiner should note the revised changes of the criteria for rating musculoskeletal system and muscle injuries disabilities, effective February 7, 2021, to include the change in criteria for impairment of the tibia and fibula under Diagnostic Code 5262. For any medial tibial stress syndrome or shin splints, the examiner should note: 1) the extent and duration of treatment; and 2) responsiveness to surgery, shoe orthotics, or other conservative treatment. 3. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.