Citation Nr: 21009136 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 16-31 364 DATE: February 19, 2021 ORDER Service connection for a right knee condition is denied. Service connection for a left knee condition is denied. Service connection for a right shoulder condition is denied. REMANDED Service connection for obstructive sleep apnea is remanded. Entitlement to an initial rating in excess of 20 percent for residuals, left shoulder subacromial impingement surgery, is remanded. Entitlement to an initial compensable rating for surgical scars, left shoulder subacromial impingement surgery, is remanded. Prior to September 14, 2020, entitlement to an initial rating for residuals of painful scar left shoulder is remanded. From September 14, 2020, entitlement to a disability rating in excess of 10 percent for residuals of painful scar left shoulder is remanded. FINDINGS OF FACT 1. There is no competent and credible evidence that the Veteran has been diagnosed with a current right knee condition. 2. A preponderance of the evidence is against a finding that the left knee condition was shown to be related to or caused by his active service. 3. A preponderance of the evidence is against a finding that the right shoulder condition was shown to be related to or caused by his active service. CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for a right knee condition. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria have not been met for service connection for a left knee condition. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria have not been met for service connection for a right shoulder condition. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1995 to August 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This case was previously before the Board in January 2020 when it was remanded for additional development. Unfortunately, for the reasons discussed below, another remand is required for the issue of entitlement to service connection for sleep apnea. See Stegall v. West, 11. Vet. App. 268 (1998). For the other issues listed above, the Board finds that there has been substantial compliance with its prior remand directives. Id. During the period of the appeal, in an October 2020 Rating Decision, the RO granted service connection for a lumbosacral strain and a right ankle disability. Therefore, those claims for service connection have been resolved and are no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In February 2015, the Veteran filed a claim for service connection for his left shoulder. In a December 2015 rating decision, the RO granted service connection for residuals, left shoulder subacromial impingement surgery. The RO also granted a separate noncompensable rating for surgical scars, left shoulder subacromial impingement surgery, effective February 25, 2015, the date of the Veteran’s original claim. In January 2020, the Board remanded these initial increased ratings claims for left shoulder and for left shoulder surgical scars. In an October 2020 rating decision, the RO granted service connection for a separate disability for residual of painful scar left shoulder, evaluated at 10 percent, effective September 14, 2020. That same day, in a Supplemental Statement of the Case, the RO readjudicated the claims in the January 2020 remand, including the increased ratings claims for residuals, left shoulder, and surgical scars, left shoulder. The newly service-connected residual of painful scar left shoulder was not readjudicated. The issue of residual of painful scar left shoulder stems directly from the claims for increased ratings for residuals of left shoulder and surgical scars, left shoulder. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1101. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if they manifest to a compensable degree within one year following service. 38 C.F.R. § §§ 3.303, 3.307, 3.309. 1. Service connection for a right knee condition is denied. In a September 2019 evaluation, the Veteran’s private physician opined that his right knee condition should be service connected. The physician noted that the Veteran’s right knee was injured in 1995, while in active service, and in 1999 the Veteran had right knee pain and swelling. The Board notes that this opinion contained no rationale. In a September 2020 VA examination report, the examiner noted that the Veteran did not have a diagnosed medical condition for his right knee. The VA examiner opined that it was less likely than not that the claimed right knee condition was incurred in or caused by the in-service injury, event, or illness. The rationale was that after examining the Veteran and reviewing his medical records, the examiner found that there were “no findings on examination today to support a diagnosis.” Additionally, the examiner noted that on a September 2011 x-ray, the Veteran’s right knee was reported as “unremarkable.” The Board finds that the September 2020 VA examination report to be more probative than the September 2019 private opinion. The September 2020 VA examination report found that no nexus was possible because the Veteran was not diagnosed with a right knee condition. While the September 2019 private examiner opined that the Veteran’s right knee should be service connected, no rationale was given. Additionally, the private examiner never diagnosed the Veteran with a right knee condition. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has not overlooked the Veteran’s statements about his claimed right knee condition. While the Veteran is competent to report observable knee symptoms, he does not have the training or credentials to provide a competent opinion as to the nature or cause of his claimed right knee condition or whether it is related to active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no competent medical evidence showing a diagnosis of any right knee condition. The most fundamental requirement for any claim for service connection, on either a direct or secondary basis, is that the Veteran must first establish he or she has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Because of this, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for a left knee condition is denied. In a September 2019 evaluation, the Veteran’s private physician opined that it was as likely as not that the Veteran’s left knee was injured “while in surgery, most likely when he jumped off the 5 ton vehicle, and knee pain running in sand.” No rationale was provided. In a September 2020 VA examination report, the Veteran was diagnosed with a left knee meniscal tear. The examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the in-service injury, event, or illness. The rationale was that after examining the Veteran, including his medical records, the examiner determined that his left knee meniscal tear, diagnosed and surgically repaired in 2011, was not related to the 1999 motor vehicle accident. The examiner noted that in an August 2013 clinical note, the Veteran stated that his “current pain in left knee began about two years ago.” Because of this, the VA examiner concluded that the Veteran’s left knee condition was not causally related to active service, to include the 1999 motor vehicle accident. The Board has not overlooked the Veteran’s statements about his left knee condition. While the Veteran is competent to report his observable knee symptoms, he does not have the training or credentials to provide a competent opinion as to the nature and cause of his left knee condition or whether it is related to active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the Board finds that the September 2020 VA examination report to be more probative than the September 2019 private opinion. While the 2019 private examiner opined that the Veteran’s left knee should be service connected, no rationale was provided. The Board finds that the September 2020 VA examination report (finding no connection between the Veteran’s left knee condition to active service) to be the most probative evidence of record, because the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because of this, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for a right shoulder condition is denied. In a September 2019 evaluation, the Veteran’s private physician opined that the Veteran’s records documented a history of bilateral should pain that started when the Veteran was in the military. “Therefore, his right shoulder condition [should be] service connected.” In a September 2020 VA examination report, the Veteran was diagnosed with bilateral shoulder impingement syndrome and a right shoulder rotator cuff tear. The VA examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the in-service injury, event, or illness. The rationale was that after examining the Veteran and reviewing the claims file, the examiner determined that the Veteran’s current right shoulder condition was not related to his 1999 motor vehicle accident. The examiner noted that the Veteran’s impingement syndrome was diagnosed in March 2010 and his rotator cuff tear was diagnosed in May 2010. The examiner reported that there was a lack of evidence and clinical notes relating to the right shoulder prior to 2008. The examiner found it “highly unlikely” that a rotator cuff tear and shoulder impingement syndrome “would manifest eleven years after the fact without any clinical treatment or symptoms…” The Board has not overlooked the Veteran’s statements about his right shoulder condition. While the Veteran is competent to report his observable shoulder symptoms, he does not have the training or credentials to provide a competent opinion as to the nature or cause of his right shoulder condition or whether it is related to active service, to include the 1999 motor vehicle accident. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the Board finds that the September 2020 VA examination report to be more probative than the September 2019 private opinion. While the 2019 private examiner opined that the Veteran’s right shoulder should be service connected, no rationale was provided other than the fact that the Veteran had shoulder pain while in service. The Board finds that the September 2020 VA examination report (finding no connection between the Veteran’s right shoulder condition to active service) to be the most probative evidence of record, because the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because of this, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for obstructive sleep apnea is remanded. In a September 2020 VA examination report, the Veteran was diagnosed with obstructive sleep apnea and hypopnea. The VA examiner opined that the Veteran’s “condition of hypopnea” was less likely than not related to service. The Board notes that the examiner never gave an opinion as to whether the Veteran’s obstructive sleep apnea was related to active service. In a September 2019 evaluation, the Veteran’s private physician wrote that “There is nothing in the records that contradicts the notion that [the Veteran’s] notion that his sleep apnea is service related.” The Board finds this opinion to be conclusory and without a rationale. Because both the September 2020 VA opinion and the September 2019 private opinion are inadequate, a new VA opinion is necessary to determine if the Veteran’s diagnosed obstructive sleep apnea is related to active service. 2. Entitlement to a disability in excess of 20 percent for residuals, left shoulder subacromial impingement surgery, is remanded. In the September 2020 VA examination report, the Veteran was diagnosed with left shoulder subacromial impingement surgery (minor). Range of motion for the left shoulder was tested and was noted to be abnormal our outside of the normal range. Concerning the Correia criteria, the VA examiner reported that there was objective evidence of pain on passive range of motion testing of the left shoulder as well as objective evidence of pain on non-weight bearing testing of the left shoulder. However, the examiner did not measure or estimate what limitations this objective evidence would have on range of motion. Because of this, a new VA examination is necessary to determine how the objective evidence of pain on passive range of motion testing and pain on non-weight bearing testing affects the Veteran’s range of motion for the left shoulder. 3. Entitlement to an initial compensable rating for surgical scars, left shoulder subacromial impingement surgery, is remanded. 4. Prior to September 14, 2020, entitlement to an initial rating for residuals of painful scar left shoulder is remanded. 5. From September 14, 2020, entitlement to a disability rating in excess of 10 percent for residuals of painful scar left shoulder is remanded. Because there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. Noted above, in February 2015, the Veteran originally filed a claim for service connection for his left shoulder. In a December 2015 rating decision, the RO granted service connection for his left shoulder and for surgical scars of the left shoulder. After the Board remanded the claim in January 2020, in an October 2020 rating decision, the RO granted a new claim for service connection for residuals of surgical scars of the left shoulder. In an October 2020 Supplemental Statement of the Case, the RO readjudicated the left shoulder disability and the surgical scars left shoulder disability, but not the residuals of the surgical scars of the left shoulder. Under 38 C.F.R. § 19.31, a Supplemental Statement of the Case should be furnished if the agency of original jurisdiction received additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal is certified to the Board of Veterans’ Appeals and the appellate record is transferred to the Board. 38 C.F.R. § 19.31(b)(1). Here, the RO received additional evidence after the January 2020 Board remand. However, while the RO adjudicated the claim for residuals of surgical scar left shoulder in the October 2020 rating decision, it did not adjudicate that claim in the October 2020 Supplemental Statement of the Case. The residuals of the surgical scar left shoulder are part of the already ongoing appeals for increased ratings for the Veteran’s left shoulder disability and his surgical scars left shoulder. Because of this, a remand is necessary so the RO can readjudicate the Veteran’s claim in a Supplemental Statement of the Case. Additionally, in the original December 2015 rating decision that is on appeal, the RO noted that the Veteran had THREE surgical scars located on his left upper extremity. However, the September 2020 VA examination report is internally inconsistent on how many scars the Veteran has on his left shoulder. At the beginning of the examination report, the Veteran is diagnosed with “scar left shoulder post-status subacromial impingement surgery.” This would imply that the Veteran is only diagnosed with one scar on his left shoulder. Further in the examination report, it notes that the Veteran has two scars on his left upper extremity: (1) left shoulder, anterior deltoid and (2) left shoulder lateral deltoid. The examiner reports that the Veteran has one scar that is painful, but does not identify which one. Based on the most recent October 2020 rating decision, the Veteran is service connected for “surgical scars, left shoulder subacromial impingement surgery associated with residuals, left shoulder subacromial impingement surgery” evaluated as noncompensable, effective February 25, 2015. This scar is rated under Diagnostic Code 7805. 38 C.F.R. § 4.118, Diagnostic Code 7805. The Veteran is now also service connected for “residual of painful scar left shoulder associated with surgical scars, left shoulder subacromial impingement surgery” evaluated as 10 percent disabling, effective September 14, 2020. This scar is rated under Diagnostic Code 7804. 38 C.F.R. § 4.118, Diagnostic Code 7804. From the September 2020 VA examination report, it is unclear which of the Veteran’s scars is painful and warrants the 10 percent disability rating under Diagnostic Code 7804, and which one is not painful and warrants the noncompensable rating. Id. From the September 2020 VA examination report, it could be possible that the Veteran only has one scar. The examination report is internally inconsistent. Additionally, the Board notes that the Veteran’s scars were never evaluated by the VA after the initial June 2015 examination. If it is the Veteran’s scar that is rated under Diagnostic Code 7805 that is actually the painful scar, it might warrant an effective date earlier than September 14, 2020 for the 10 percent rating. It could be possible that this scar was painful all the way back to the February 25, 2015 claim. Because of this, a new VA examination is necessary to identify the symptoms of the Veteran’s scars separately and determine which scar is the painful one. Additionally, a retrospective opinion is necessary to determine if the Veteran’s painful scar (whichever it is) was painful prior to the September 2020 VA examination. The matters are REMANDED for the following actions: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. After the above has been completed, arrange for the Veteran’s file to be forwarded to a VA examiner for a clarifying addendum opinion regarding the likely cause of his diagnosed obstructive sleep apnea. The examiner or consulting physician must review the entire record (including all updated records obtained pursuant to the above development order). Based on his or her review, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s obstructive sleep apnea is directly related to active military service. 4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left shoulder disability and ensure that he is notified of the date and time of such at her most recent address of record. The claims file must be made available to the examiner for review in connection with the examination. All indicated tests and studies must be performed in accordance with the pertinent Disability Benefits Questionnaires for this disability, and all findings should be set forth in detail. The examiner should identify all complications and symptoms attributable to the Veteran’s service-connected left shoulder in accordance with the rating criteria. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing and must include range of motion measurements in active motion, passive motion, with weight-bearing, and without weight-bearing unless such testing is not practicable or feasible. If such testing is not practicable or feasible, the examiner should explain why this is so. 5. The AOJ should then schedule the Veteran for a VA examination to determine the current nature, extent and severity of his service-connected surgical scars, left shoulder, as well as his service-connected residuals of painful scar, left shoulder. All indicated tests and studies must be performed, in accordance with the pertinent Disability Benefits Questionnaires for these disabilities, and all findings should be set forth in detail. The examiner should identify all complications and symptoms attributable to the Veteran’s service-connected disabilities, in accordance with the rating criteria. Specifically, the examiner should identify which scar is painful and whether it was the Veteran’s original service-connected scar or his residuals of his scar. Additionally, the examiner should provide a “retrospective” medical opinion concerning whether any of the Veteran’s scars were painful from February 25, 2015 to the present. All pertinent symptoms and findings must be reported in detail. (Continued on next page)   6. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.