Citation Nr: 21008211 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 12-02 621A DATE: February 12, 2021 ORDER Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected cervical spondylosis with foraminal stenosis at C6-C7, is denied. Entitlement to an evaluation in excess of 10 percent for cervical spondylosis with foraminal stenosis at C6-C7 prior to December 23, 2014, in excess of 20 percent from December 23, 2014 to November 12, 2019, and in excess of 30 percent, thereafter, is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. A right shoulder disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, arthritis did not manifest within one year of service discharge and is not caused or aggravated by service-connected cervical spine disability. 2. For the appeal period prior to December 23, 2014, the Veteran’s cervical spondylosis with foraminal stenosis at C6-C7 manifested as forward flexion limited to 40 degrees, at worst, without forward flexion that is limited to greater than 15 degrees but not greater than 30 degrees muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, ankylosis or doctor prescribed bedrest. 3. For the appeal period from December 23, 2014 to November 12, 2019, the Veteran’s cervical spondylosis with foraminal stenosis at C6-C7 manifested as forward flexion limited to 30 degrees, at worst, without forward flexion of the cervical spine that is 15 degrees or less, ankylosis or doctor prescribed bedrest. 4. For the appeal period beginning on November 12, 2019, the cervical spondylosis with foraminal stenosis at C6-C7 manifested as forward flexion that was limited to 15 degrees, at worst, without ankylosis or doctor prescribed bedrest. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for a higher rating for a cervical spondylosis with foraminal stenosis at C6-C7, rated as 10 percent disabling prior to December 23, 2014, 20 percent from December 23, 2014 to November 12, 2019, and 30 percent from November 12, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1976 to December 1980. He also had service in the U.S. Army Reserve, to include a period of active duty for training from July 1976 to November 1976. These matters come to the Board of Veterans’ Appeals (Board) on appeal from March 2010 and November 2010 rating decisions issued by two Department of Veterans Affairs (VA) Regional Offices (ROs). The March 2010 rating decision, in pertinent part, denied service connection for disabilities of the right shoulder and back, and the November 2010 rating decision granted service connection and an initial 10 percent rating for cervical spondylosis with foraminal stenosis at C6-C7. In a September 2015 rating decision, the evaluation for cervical spondylosis was increased to 20 percent, effective December 23, 2014. In a July 2020 rating decision, the evaluation for cervical spondylosis was increased to 30 percent, effective November 12, 2019. This case was previously before the Board in August 2016 and April 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. 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. §§ 1110, 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). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Certain chronic diseases such as arthritis will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected cervical spondylosis with foraminal stenosis at C6-C7, is denied. The Veteran contends that he has a right shoulder disorder incurred in service due to a motor vehicle accident (MVA) in service. Alternatively, the Veteran asserts he has a right shoulder disorder either caused or aggravated by his service-connected cervical spine disability. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested right shoulder arthritis to a degree of 10 percent within the one year following his discharge from service. Service treatment records do not include complaints, treatment, or diagnosis of a right shoulder disorder. Post-service VA treatment records show the first evidence of complaint of shoulder pain was in February 2004, and the first evidence of mild osteoarthritis is in March 2010, both more than 27 years after his separation from service and 26 years outside of the applicable presumptive period. As such, presumptive service connection is not warranted for arthritis. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. As to direct and secondary service connection, the June 2011, May 2018, and November 2019 VA examiners opined the Veteran did not have a shoulder disorder due to service. The June 2011 VA examiner indicated that the Veteran’s shoulder strain was not due to service or his service-connected spine disorder as his x-rays were completely negative with no joint abnormality noted. The May 2018 VA examiner found there is no primary shoulder injury that can be secondarily caused or aggravated by his service-connected cervical spine disability. The November 2019 VA examiner found it is less likely as not that the Veteran’s right shoulder arthropathy status-post surgery is service connected as there are no medical records showing diagnosis, treatment for the right shoulder condition or any related right shoulder condition while Veteran was still in service. The examiner noted the Veteran was involved in an MVA and reported multiple soft tissues injuries in service; however, the Veteran had no shoulder complaints while in service or years after service. The examiner also found it is less likely than not that Veteran’s right shoulder strain was due to or aggravated by his service-connected cervical spine disability as the neck does not commonly affect the shoulders. The neck being injured does not cause more strain on the shoulders or affect the range of motion. These opinions had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). No contrary medical opinion is of record. The Board notes that the Veteran’s assertion that service connection is warranted for pain radiating into the right shoulder from his service-connected cervical spine disability, which is addressed below. The Board recognizes that the Veteran has contended that his right shoulder disorder is the result of his in-service MVA or caused or aggravated by his service-connected cervical spine disability. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s right shoulder disorder and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current right shoulder symptoms, the Board accords his statements regarding the etiology of such a disorder little probative value as they are not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and requires the administration and interpretation of diagnostic testing. In the instant case, there is evidence that the Veteran has had limited medical training as a field medic in service. Nonetheless, the Board finds the opinions of the VA examiners more probative than the Veteran’s assertions. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a right shoulder disorder and the claim must be denied. 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 the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). 2. Entitlement to an evaluation in excess of 10 percent for cervical spondylosis with foraminal stenosis at C6-C7 prior to December 23, 2014, in excess of 20 percent from December 23, 2014 to November 12, 2019, and in excess of 30 percent, thereafter, is denied. The Veteran contends that his cervical spine disability is causing more pain than previously evaluated. The Veteran’s service-connected cervical spondylosis with foraminal stenosis at C6-C7 is currently evaluated under Diagnostic Code 5242. Diagnostic Code 5242 is part of the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). Under General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. For VA compensation purposes, the normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. See 38 C.F.R. § 4.71a, Note (2) (see also Plate V). Note (1) to the General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Prior to December 23, 2014 For the appeal period prior to December 23, 2014, the Board finds that a rating in excess of 10 percent is not warranted because the record fails to show that the Veteran’s forward flexion of the cervical spine was greater than 15 degrees but not greater than 30 degrees and the combined range of motion was not greater than 170 degrees nor were there reported muscle spasms, severe guarding resulting in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran’s forward flexion of the cervical spine was found to be to 40 degrees, at worst, in the July 2012 VA examination, even in contemplation of repetitive use, functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, supra. Moreover, at no point during this period has the Veteran’s cervical spondylosis been characterized as the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The combined range of motion of the cervical spine for the November 2010 examination was 275 degrees and for the July 2012 examination was 250. Moreover, muscle spasm and guarding were noted as not present in the November 2010 and July 2012 examinations. Thus, a rating in excess of 10 percent prior to December 23, 2014 is not warranted. Although July 2012 VA examiner indicated the Veteran had pain at 25 degrees of forward flexion, the United States Court of Appeals for Veterans Claims (Court) has clearly indicated that painful motion does not equate to limited motion. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss. Id. To the extent that the Veteran complained of pain in his neck, the effect of such pain in the Veteran’s neck is already contemplated in the assigned rating. From December 23, 2014 to November 12, 2019 For the appeal period from December 23, 2014 to November 12, 2019, the Board also finds that a rating in excess of 20 percent is not warranted because the record fails to show that the Veteran’s forward flexion of the cervical spine 15 degrees or less. The Veteran’s forward flexion of the cervical spine was found to be, at worst, to 30 degrees in the September 2015 VA examination, even in contemplation of repetitive use, functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, supra. Moreover, at no point during the appeal period has the Veteran’s cervical spondylosis been characterized as favorable ankylosis of the entire cervical spine. Although the September 2015 VA examiner indicated that the Veteran’s cervical spine as having less movement due to ankylosis, adhesions, ect., the examiner also noted no evidence of ankylosis. As the Veteran retains motion of his cervical spine, there is no evidence of ankylosis, which is fixation or the absence of movement of a joint. See Dorland’s Illustrated Medical Dictionary 94 (31st ed. 2007) (defining ankylosis). Thus, a rating in excess of 20 percent from December 23, 2014 to November 12, 2019 is not warranted. Starting November 12, 2019 For the appeal period beginning on November 12, 2019, the Veteran’s cervical spondylosis has been characterized as forward flexion limited to 30 degrees. However, the November 2019 VA examination also showed forward flexion of the cervical spine is limited to 15 degrees with flare-ups, warranting the assigned 30 percent rating under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, supra. There was no ankylosis. Therefore, a rating higher than 30 percent beginning on November 12, 2019 is not warranted. Furthermore, as the evidence fails to show that the Veteran has intervertebral disc syndrome with incapacitating episodes resulting in bed rest ordered by a physician at any point pertinent to the appeal period, a higher rating is not warranted under the intervertebral disc syndrome rating formula. In this regard, all VA examinations and treatment records are negative for such a finding, and the Veteran himself has not reported experiencing such incapacitating episode of intervertebral disc syndrome as defined by regulation. Therefore, a higher rating under the intervertebral disc syndrome rating formula is not warranted. Further, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the July 2012 VA examination was conducted prior to Correia and Sharp and provides only partial information. The Board notes that the VA examination did not test the opposite joint; however, the spine does not have an opposite joint. Regarding repeated use over time, the Board notes that November 2010, July 2012, and September 2015 VA examiners conducted repetitive-use testing and concluded that there was no additional limitation in range of motion. Regarding flare-ups, the November 2010 VA examiner indicated the Veteran described he is at a functional level of 60 percent with flare-ups. The July 2012 VA examiner indicated the Veteran described swelling and increased pain during flare-ups making it difficult to move the neck. However, neither examiner provided an estimated loss of range of motion. The September 2015 VA examiner indicated that there was no functional loss with flare-ups. The Veteran’s current rating is based on limitation of motion due to flare-ups as reported by the November 2019 VA examiner. The Board recognizes that the Veteran asserts radiation of pain from his neck into his shoulder; however, the Board finds the evidence weighs against the finding of neurological manifestations of his cervical spine disability. In November 2010 and July 2012 VA examination reports, the Veteran reported that his neck pain radiates to the right shoulder. However, the June 2011 VA examiner referred to an EMG report which specifically found there is no electrophysiological evidence of bilateral C5-8 radiculopathy. Furthermore, the July 2012 VA examiner indicated that muscle strength and sensory examinations were normal and that there are only subjective complaints of numbness in radicular patters without objective findings. The September 2015 and November 2019 VA examiners found no evidence of radiculopathy. The May 2018 VA examiner indicated that it is possible for pain from the cervical spine to radiate to the shoulder, thus causing “referred” pain in the shoulder, but that pain is not caused by any abnormality of the shoulder, rather just neck pain traveling to the shoulder. The Board finds that this medical opinion is of limited probative value, as medical opinions that are speculative and/or inconclusive in nature do not provide a sufficient basis upon which to support a claim. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor’s opinion that it is possible, and it is within the realm of medical possibility too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the word could not rule out was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical opinion framed in terms of may or may not is speculative and insufficient to support an award of service connection for the cause of death); see also 38 C.F.R. § 3.102 (finding of service connection may not be based on a resort to speculation or a remote possibility). Again, in reaching its conclusions, the Board acknowledges the Veteran’s belief that his cervical spondylosis is more severe than as reflected by the currently assigned disability ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, supra. Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than her reports regarding the severity of his cervical spondylosis. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected cervical spondylosis; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings for such disability is not warranted. Furthermore, the Veteran has not raised any other issues, nor has any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, supra. In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran’s favor. However, insofar as the Board has denied higher or separate ratings, the preponderance of the evidence is against such aspects of the claim. Therefore, the benefit of the doubt doctrine is not applicable, and the increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran asserts service connection is warranted for a lumbar spine disorder either as directly related to an MVA in service or as caused or aggravated by a service-connected cervical spine disorder. The Board remanded the claim most recently in April 2019 for additional development to include a VA examination. The Veteran underwent a VA examination in November 2019. The examiner noted that after reviewing medical records and performing physical exam, is less likely as not that the Veteran’s back condition is related to his service as service medical records did not indicate any diagnoses or treatment for any back condition or any related back condition. However, the Veteran’s STRs include complaints of back pain in July and August 1978. As the basis for the VA examiner’s opinion is inaccurate, the opinion is inadequate, and an additional VA opinion is necessary. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s back disorder is at least as likely as not related to service, to include an in-service MVA and complaints of back pain. D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.