Citation Nr: 21075633 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-53 879 DATE: December 21, 2021 ORDER The application to reopen the previously denied claim for service connection for hepatitis B is dismissed. The appeal for an earlier effective date for the assignment of a 10 percent disability evaluation for service-connected tinnitus is dismissed. The appeal for an increased disability rating in excess of 20 percent for subluxation lateral left clavicle at left acromioclavicular joint (AC) left shoulder is dismissed. The application to reopen the previously denied claim for service connection for a jaw condition is denied. Service connection for bilateral hearing loss is denied. An increased disability rating in excess of 20 percent from May 4, 2018 for the service-connected benign cyst lateral right clavicle (right shoulder disability) is denied. REMANDED Entitlement to service connection for a neck disability, to include as secondary to service-connected bilateral shoulder disabilities is remanded. Entitlement to service connection for neuropathy of the left upper extremity is remanded. Entitlement to service connection for neuropathy of the right upper extremity is remanded. Entitlement to a compensable disability rating for right knee patellofemoral syndrome is remanded. Entitlement to a compensable disability rating for left knee patellofemoral syndrome is remanded. Entitlement to an increased disability rating in excess of 10 percent for lumbar degenerative disc disease (DDD) is remanded. FINDINGS OF FACT 1. During the May 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw from appellate status the application to reopen the previously denied claim for service connection for hepatitis B; the claim for an earlier effective date for the assignment of a 10 percent disability evaluation for service-connected tinnitus, the claim for an increased disability rating in excess of 20 percent for subluxation lateral left clavicle at AC left shoulder. 2. In a May 2015 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a jaw condition. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 3. Evidence received since the May 2015 rating decision is either cumulative or redundant and, by itself or in connection with evidence previously assembled, does not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim for service connection for a jaw condition. 4. The Veteran has not had bilateral hearing loss to an extent recognized as a disability for VA purposes throughout the pendency of the claim. 5. Throughout the appeal period, the Veteran's motion of the right arm has not been limited to at least halfway between the shoulder and side, i.e. flexion and/or abduction limited to 45 degrees or less, to include consideration of additional functional loss following repeated use and during flare-ups. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal with regard to the application to reopen the previously denied claim for service connection for hepatitis B; the claim for an earlier effective date for the assignment of a 10 percent disability evaluation for service-connected tinnitus, and the claim for an increased disability rating in excess of 20 percent for subluxation lateral left clavicle at AC left shoulder by the Veteran, through his authorized representative, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The May 2015 rating decision that denied the claim for entitlement to service connection for a jaw condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 3. The evidence received since the May 2015 denial of service connection for a jaw condition is not new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1101, 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 5. The criteria for the assignment of a disability rating in excess of 20 percent for the service-connected right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from January 2011 to January 2015. He is in receipt of the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran timely filed a notice of disagreement (NOD) in September 2018 with additional comment in October 2018. A statement of the case (SOC) was issued in November 2018 and the Veteran timely filed a substantive appeal via a VA Form 9. In May 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Withdrawal of Claims A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision, and an appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing unless the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 19.55. The Veteran was requesting to reopen the previously denied claim for service connection for hepatitis B, an earlier effective date for the assignment of a 10 percent disability evaluation for service-connected tinnitus, and an increased disability rating in excess of 20 percent for subluxation lateral left clavicle at AC left shoulder. He perfected his appeal via a VA Form 9 in November 2018. During the May 2020 Board hearing, the Veteran's authorized representative testified that the Veteran wished to withdraw his claims for the previously denied claim for service connection for hepatitis B, an earlier effective date for the assignment of a 10 percent disability evaluation for service-connected tinnitus, and an increased disability rating in excess of 20 percent for subluxation lateral left clavicle at AC left shoulder. "[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Moreover, a Board determination that a claimant validly withdrew his appeal orally must include a "finding regarding whether [the appellant] understood the consequences of withdrawing his claims." Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). During the Board hearing, the Veteran's representative testified that he spoke with the Veteran prior to the hearing, and they decided to withdraw the claims as stated. Additionally, given the discussion during the Board hearing regarding the other claims and the dispositions below, the Board finds that the Veteran understood the consequences of withdrawing from appellate status the appeals for the application to reopen the previously denied claim for service connection for hepatitis B, an earlier effective date for the assignment of a 10 percent disability evaluation for service-connected tinnitus, and an increased disability rating in excess of 20 percent for subluxation lateral left clavicle at AC left shoulder by the Veteran. As the Veteran validly withdrew his appeal of the denial of these claims, there is effectively no longer any remaining allegation of error of fact or law concerning the issues as set forth above. See 38 U.S.C. § 7105 (d)(5). Accordingly, the Board does not have jurisdiction to review these claims, and they are dismissed. New and Material Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The application to reopen the previously denied claim for service connection for a jaw condition The Veteran's claim for entitlement to service connection for a jaw condition was previously denied in a May 2015 rating decision. The pertinent evidence then of record includes service treatment records (STRs), and a Disability Benefits Questionnaire (DBQ) for Temporomandibular Joint (TMJ). Service connection was denied on the basis that the medical evidence of record failed to show that a jaw disability had been clinically diagnosed. Although notified of the May 2015 denial in a May 2015 notification letter, the Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the May 2015 denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Evidence received since the May 2015 rating decision includes statements from the Veteran, VA treatment records, and May 2020 Board hearing testimony. While all of this evidence is "new," as in it has not been previously before the Board, it is not "material" as it does not support the Veteran's contention that he has a current jaw condition, to include TMJ, that is a result of removing his wisdom teeth in service. Specifically, during the May 2020 Board hearing, the Veteran reiterated his belief that after his wisdom teeth were removed in 2014, he noticed that his jaw would click, slip, and slide. This was noted during his February 2015 VA examination where no diagnosis was found. Additionally, the VA treatment records do not show a diagnosis of a jaw condition, including TMJ. The evidence received is redundant and cumulative of evidence of record at the time of the last final denial. Thus, the additional evidence is not new and material as to the previously denied claim. Accordingly, new and material evidence to reopen the claim for service connection has not been received, and the requirements for reopening the claim are not met. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such 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 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). In such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service. See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). As noted above, the Veteran is in receipt of the CAB and is entitled to the application of the combat presumption of in-service acoustic trauma. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. 1. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that he has a diagnosed bilateral hearing loss due to in-service noise exposure. Service treatment records do not reflect a diagnosis, treatment, or symptoms of a hearing disability. Hearing conservation data consistently reflects hearing within normal limits. Additionally, the Veteran testified that he was provided hearing protection. The February 2015 DBQ report reflects that audiometric testing revealed the following pure tone threshold in decibels: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 0 0 0 5 5 Left 0 0 -5 0 0 His speech recognition scores were 100 percent for the right ear and 100 percent for the left ear. The audiologist noted that the Veteran had normal hearing bilaterally. Similarly, a July 2018 DBQ report reflects that audiometric testing revealed the following pure tone threshold in decibels: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 5 0 0 10 Left 0 0 0 5 5 His speech recognition scores were 100 percent for the right ear and 100 percent for the left ear. The audiologist noted that the Veteran had normal hearing bilaterally. The Veteran reported that when he is speaking with people, he has to ask them to repeat things to him several times. During the May 2020 Board hearing, the Veteran testified that he was subject to explosions in close proximity at least once a month. He also did combat assaults once a week. He was offered hearing protection, but they did not keep out much noise. A July 2020 private audiological examination reflects that the audiologist reported that the audiogram revealed normal hearing bilaterally. He reported that word recognition scores were excellent bilaterally, 100%, utilizing the Maryland CNC word recognition test. Upon review of the evidence of record, service connection for bilateral hearing loss must be denied as the Veteran does not have a current hearing loss disability to the extent recognized for VA purposes pursuant to 38 C.F.R. § 3.385, and no contrary, competent evidence establishing bilateral hearing loss has been presented or identified. The current disability requirement has not been met. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. Thus, where, as here, competent, probative evidence establishes that the Veteran has not at any time during the pendency of the claim or prior thereto had bilateral hearing loss disability for which service connection is sought, there can be no valid claim for service connection. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). Cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). As such, service connection for bilateral hearing loss must be denied because the first criterion for an award of service connection is evidence of a current disability upon which to predicate such an award has not been met. In this regard, VA has defined hearing loss disability in 38 C.F.R. § 3.385 and the Veteran has not met any of these criteria. For the foregoing reasons, entitlement to service connection for bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107 (b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 38C.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."). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 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 intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38C.F.R. §4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, the regulations governing disability ratings for musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, although not all of the diagnostic criteria were affected. Any changes to the criteria that are applicable to the claims on appeal are indicated below An August 2018 rating decision granted a higher rating of 20 percent for the Veteran's right shoulder disability, effective May 4, 2018. This created a staged rating. The Veteran timely appealed the effective date of the assigned 20 percent rating. Thus, the issue before the Board in this regard may be phrased in various manners. The issue may be phrased as entitlement to an earlier effective date for a 20 percent rating for a right shoulder disability. The Board notes that the grant of any compensation benefit necessarily includes implementation of an award and the selection of an effective date, since no award is granted in a legal vacuum. Here, the Board has phrased the issue as entitlement to a compensable disability rating prior to May 4, 2018 and in excess of 20 percent thereafter. There is therefore no issue with regard to an impermissible freestanding claim for an earlier effective date. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006). 1. Entitlement to a disability rating in excess of 20 percent for the service-connected right shoulder disability. The Veteran contends that the symptoms of his right shoulder disability warrant an increased disability rating. His right shoulder disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 provides a 20 percent rating for arm motion limited at the shoulder level, major or minor, a 30 and 20 percent rating for arm motion limited midway between the side and shoulder level, major and minor respectively, and a 40 and 30 percent rating for arm motion limited to 25 degrees from the side, major and minor respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003). Recent amendments to Diagnostic Code 5201, effective February 7, 2021, clarify that limitation of motion of the arm to shoulder level is equivalent to flexion and/or abduction limited to 90 degrees and limitation of motion to midway between side and shoulder level is equivalent to flexion and/or abduction limited to 45 degrees. 85 Fed. Reg. 76,453 (Nov. 30, 2020). See also, 38 C.F.R. § 4.71a, Diagnostic Code 5201 (effective February 7, 2021). As an initial matter, the Veteran is right-handed. Therefore, his right arm is the major extremity for VA rating purposes. Normal ranges of motion of the shoulder are flexion (forward elevation) from zero to 180 degrees, abduction from zero to 180 degrees, and both internal and external rotation from zero to 90 degrees. 38 C.F.R. § 4.71, Plate I. In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi,17 Vet. App. 305, 314-16 (2003). In addition, alternative ratings may be assigned for ankylosis of scapulohumeral articulation (Diagnostic Code 5200), impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5303). However, as the medical evidence of record is silent for ankylosis of the right shoulder; impairment of the right humerus, to include nonunion, malunion, or episodes of guarding; or impairment of the right clavicle or scapula, to include dislocation, nonunion, or malunion, ratings under these diagnostic codes are not for application. VA treatment records reflect that in March 2017, the Veteran complained of right shoulder pain described as dull, achy, and intermittent throughout the day with exacerbations when carrying heavy items that worsens if done for long periods. A July 2018 DBQ report reflects that the Veteran had a diagnosis of subacromial/subdeltoid bursitis and a 3-millimeter benign cyst. He reported intermittent pain dull aching in his right shoulder described as a 2 out of 10. He reported that he needs constant readjustment, lasting for 2 to 3 days. His right hand is the dominant hand. He did not report any flare ups and functional loss/impairment. Initial ROM testing of the right shoulder was all normal. There was no pain noted on examination. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight-bearing. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM after three repetitions. The Veteran was not examined immediately after repetitive use over time. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. There was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. He did not have muscle atrophy. The Veteran reported that he was able to bench press 225 pounds, five repetitions, and three sets. There was no ankylosis, a rotator cuff condition was not suspected, there was no shoulder instability, and there were no mechanical symptoms. There was no clavicle, scapula, AC, or sternoclavicular joint condition suspected. There were no conditions or impairments of the humerus. The Veteran reported 'annoying' pain during work. There was no objective evidence of pain on passive ROM and when the joint was used in non-weight bearing. The opposing joint was undamaged with no examination abnormalities. During the May 2020 Board hearing, the Veteran testified that his right shoulder was painful and he was in physical therapy. He did not take medication because he did not personally like it. The Veteran is a firefighter. He reported that his right shoulder makes the performing of his job duties more difficult especially with the gear that he has to put on and off. He reported that he gets stiff a lot and he has to constantly stretch it. In light of the foregoing evidence, the assignment of a rating in excess of 20 percent for the service-connected right shoulder disability is not warranted. Specifically, at no time during the period on appeal has right arm motion been limited to halfway between the shoulder and side, i.e. limitation to 45 degrees. Range of motion testing was normal for the Veteran's right shoulder, he did not report any flare ups, and he did not report any functional loss/impairment. He was able to perform repetitive-use testing with no additional loss of ROM. He reported that he was able to bench press 225 pounds. There is no indication by the medical evidence that the Veteran's right arm motion is limited to halfway between the shoulder and side. Additionally, the Veteran has not testified or submitted any statements indicating that he has limitation of motion. While the Veteran reported stiffness during the Board hearing, he testified that he stretches it constantly. The Veteran's right shoulder diagnosis was changed to 3-millimeter benign cyst lateral right clavicle during the July 2018 examination. Entitlement to compensation under DC 5203 (impairment of clavicle or scapula) has been considered. However, the maximum rating under Diagnostic Code 5203 is 20 percent. As the Veteran's right shoulder disability is already rated as 20 percent disabling under Diagnostic Code 5201 for the entire period on appeal, no analysis of whether a higher rating is warranted under Diagnostic Code 5203 is warranted. Accordingly, the criteria for a disability rating in excess of 20 percent for the service-connected right shoulder disability have not been met. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability, to include as secondary to service-connected bilateral shoulder disabilities, and bilateral neuropathy of the upper extremity. The Veteran contends that he has a neck disability, to include bilateral neuropathy of the upper extremities. A July 2018 DBQ report reflects that the clinician found that the Veteran did not have a cervical spine diagnosis. The Veteran reported that he started having neck pain in 2017 and tingling sensation when looking down that goes away when he changed posture. The Veteran did not report any functional loss/impairment of the cervical spine. There was no pain noted on examination. His neck did not impact his ability to work. The clinician opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that during service, the condition was acute only. There is no evidence of chronicity of care. He concluded that a nexus has not been established. During the May 2020 Board hearing, the Veteran testified that he believed that his cervical spine pain may possibly be due to his service-connected shoulder disabilities. He reported stiffness and that his pain began within a year of separation. He testified that when he touches certain areas of his neck, it connects to where he feels pain in his shoulder. Thus, as the Veteran has consistently reported pain in his cervical spine, is a combat veteran, and testified that his cervical pain might be caused by his bilateral shoulder disabilities, a remand is warranted for a new examination addressing these contentions. 2. Entitlement to compensable disability ratings for the service-connected right and left patellofemoral syndrome. The Veteran contends that the symptoms of his bilateral knee patellofemoral syndrome warrant an increased disability rating. His knee disabilities are each rated as noncompensable pursuant to 38 C.F.R. § 4.71a, DC 5257. A July 2018 DBQ report reflects that the Veteran reported intermittent aching in both knees. He did not report any flare-ups and functional loss/impairment. Initial ROM of the right and left knee was all normal. There was no pain noted on examination. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM after three repetitions, bilaterally. There was no ankylosis, subluxation, lateral instability, and recurrent effusion. There were no meniscal conditions. He did not use any assistive devices. The Veteran reported doing 285 pound squats with 5 repetitions and three sets during training without pain. However, an August 2018 private examination report reflects that on examination of the left knee, there was effusion and painful palpable medial plica which "clicks" on flexion loading. The knee was stable. Active ROM was to 125 degrees. There was pain on patella compression and patella tendon pain. There was palpable pain over the medial joint line, medial condyle, and medial collateral ligament. He could not perform repetitive flexion loading due to pain on patellofemoral excursion in addition to the sensation of clicking along the medial condyle of his knee. The Veteran reported that when he walks on an uneven surface or attempts to run or jump, he gets pain over the medial condyle and clicking with the sensation of his knee giving out. He is not able to perform a full kneel or squat on the left due to guarding with pain. During the May 2020 Board hearing, the Veteran testified that he was not taking medication for his knees. He uses an icepack or a heat wrap. He reported instability bilaterally on exertion. He reported stiffness, swelling, and flareups of the left knee. In light of the evidence indicating worsening symptoms, combined with the time passed since his most recent VA examination, a remand is warranted for a new VA examination as requested. See Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 3. Entitlement to a disability rating in excess of 10 percent for the service-connected DDD of the lumbar spine The Veteran contends that the symptoms of his lumbar spine DDD warrant an increased disability rating. The Veteran's lumbar spine DDD is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5242. A July 2018 DBQ report reflects that the Veteran has a diagnosis of lumbar DDD. He reported intermittent pain that was aching and sharp which he described as a 6 out of 10 when doing twisting motion. He did not report any flare-ups and functional loss/impairment. Initial ROM testing was all normal. Pain was noted on right and left lateral rotation examination but did not result in/cause functional loss. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. There was no guarding and muscle spasm. He did not have muscle atrophy. There was no radicular pain or any other signs or symptoms due to radiculopathy and no other signs or symptoms or radiculopathy. There was no ankylosis of the spine. There were no neurologic abnormalities. There was no diagnosis of IVDS. He did not use any assistive devices. The Veteran reported intermittent pain when twisting, bending back, and prolong sitting. He reported doing deadlift 320 pounds with three repetitions during training During the May 2020 Board hearing, the Veteran testified that he had back spasms once a month, depending on the type of activity he is doing. He reported that it gets tight, and he has to constantly stretch. He testified that he has flare-ups. In light of the evidence indicating worsening symptoms, combined with the time passed since his most recent VA examination, a remand is warranted for a new VA examination as requested. See Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Schedule a VA examination to address whether the Veteran has a cervical spine and bilateral upper extremity neuropathy disability. 2. The clinician should address: a) Whether it is at least as likely as not (at least a 50 percent probability) that any cervical spine disability is related to or had its onset during the Veteran's military service. b) Whether the Veteran experiences functional impairment due to cervical spine pain. Then, the clinician should indicate whether any impairment, whether or not attributed to a specific diagnosis, is related to an in-service disease or injury or had its onset in service. c) Whether the Veteran's cervical spine pain is proximately due to, the result of, or caused by the service-connected bilateral shoulder disabilities? d) If not caused by another medical condition, has the cervical spine pain been aggravated (made worse or increased in severity) by the service-connected bilateral shoulder disabilities? Please identify whether any increase in severity was due to the natural progress of the disease. The clinician must address the Veteran's testimony that his cervical spine pain has been attributed to his service-connected bilateral shoulder disabilities. 3. Schedule the Veteran for a VA examination to evaluate the current severity of the service-connected right and left knee patellofemoral syndrome. All indicated tests and studies should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. The examination should be conducted in accordance with the current disability benefits questionnaire, to include being consistent with Correia v. McDonald, 27 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), to specifically include testing the range of motion in active motion, passive motion, weightbearing, and non-weightbearing, as well as address the Veteran's functional loss, in terms of range of motion, during flareups and due to repetitive use over time. The VA examiner is asked to consider all symptoms due to the service connected knee disabilities and whether the issue of entitlement to service connection or separate ratings for disability caused by these symptoms is warranted, to include a separate rating for instability. 4. Schedule the Veteran for a VA examination to evaluate the current severity of the service-connected lumbar spine DDD. All indicated tests and studies should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. The VA examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the VA examiner should identify any symptoms and functional impairments due to the Veteran's lumbar spine disability and discuss their effects on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the VA examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the VA examiner (does not have the knowledge or training). The VA examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.