Citation Nr: 21010369 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-38 997 DATE: February 24, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to an initial rating in excess of 20 percent for right shoulder acromioclavicular joint disease is denied. FINDINGS OF FACT 1. The competent and probative evidence of record is against a finding that a chronic back disorder manifested in service or is otherwise etiologically related to the Veteran’s service. 2. The competent and probative evidence of record is against a finding that a chronic left shoulder manifested in service or is otherwise etiologically related to the Veteran’s service. 3. For the entire appeals period, the Veteran’s right shoulder strain, with AC joint degenerative joint disease has more nearly approximated motion limited to at or below the shoulder level, but above midway between the side and shoulder level. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107, 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107, 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to an initial rating in excess of 20 percent for right shoulder acromioclavicular joint disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201-5019. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to September 1977, from December 1977 to February 1982, from October 2001 to September 2003, and from October 2003 to December 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and May 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony before the undersigned Veterans Law Judge by videoconference in August 2017. A transcript of the hearing is of record. In an April 2018 decision, the Board, in pertinent part, denied service connection for low back and left shoulder disabilities. It also granted an initial rating of 20 percent, but no higher, for right shoulder strain, with AC joint degenerative joint disease from August 22, 2014. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated and remanded the portions of the April 2018 Board decision which denied service connection for low back and left shoulder disabilities and denied a rating in excess of 10 percent for right shoulder disability prior to August 22, 2014 and in excess of 20 percent from that date. An April 2019 rating decision granted the 20 percent rating for right shoulder disability for the entire appeals period from December 25, 2012. In October 2020, the Board remanded the case for further development pursuant to the JMPR. The JMPR also addressed the issue of entitlement to service connection for left foot pes planus. As service connection was subsequently granted for that disability, the issue is no longer before the Board. Additionally, in the April 2018 decision, the Board, in pertinent part, remanded the issues of entitlement to service connection for left hip disability, and entitlement to a higher initial rating for left knee disability for further development. It appears the RO has not yet completed the development and those issues have not yet been recertified to the Board. Hence, they will not be addressed at this time. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted on a presumptive basis for certain enumerated chronic disabilities if manifested to a degree of 10 percent or more within a year of discharge from active service. 38 C.F.R. §§ 3.307, 3.309(a); see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (the term “chronic disease” refers to chronic diseases enumerated in 38 C.F.R. § 3.309 (a)). There is no nexus requirement for these disabilities so long as there is an absence of an intercurrent cause. Walker, 708 F.3d at 1338-39. 38 C.F.R. § 3.303 (b) provides an alternative avenue to service connection for chronic diseases. Where there is a chronic disease shown in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Id. When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. There is no nexus requirement for these disabilities so long as there is an absence of an intercurrent cause. Walker, 708 F.3d at 1338-39. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for a low back disability During service in December 1977 the Veteran was seen with and placed on profile for back strain. In July 2003 he was seen with low back pain after lifting a trailer. At that time, he reported pain into both buttocks. On a medical history questionnaire completed by the Veteran upon separation in December 2003, he did not report any back complaints. In January 2011, a private treatment record noted that the Veteran complained of back pain. “He has had back pain continuously for the last several years, but it seems to have gotten worse recently. He tried to lift up a tractor truck and felt a give in his back. He denies radicular pain.” A back examination showed no deformity, limited flexion and extension, and normal neurological examination in both lower extremities. Following an MRI in January 2011, the Veteran was noted to have symptomatic disk degeneration of the lumbar spine. A February 2013 private treatment record noted that the Veteran had signs and symptoms consistent with nerve impingement that may be due to different etiologies such as a herniated disc, hypertrophy of the ligamentum flavum, facet arthropathy, or instability. Epidural steroid injections were recommended. A March 2013 private neurologist’s treatment record indicates that the Veteran was seen with complaints of “back pain for over 20 years which has been intermittent. He has received chiropractic care and epidural steroids in the past. He has managed this with conservative measures such as rest, chiropractic care and occasional epidurals with some relief. About five months ago, he began to develop dull right leg pain. His back pain is significantly worse than his right leg pain. He states his right leg pain is not very significant. The pain will go down his posterior thigh to the popliteal fossa. Rarely, if ever, does it go below his knee. However, about four or five weeks ago he developed some numbness in his right lower extremity and leg but this subsided. This occurred as he was squatting down to pick up his grandchild.” The impression was of significant back pain from degenerative disc disease at multiple levels. The physician stated that surgery would not be helpful as the Veteran had mostly back pain from multilevel disc disease and a multilevel fusion was likely to cause more problems than it solved. A VA examination was conducted in April 2013. The examiner reviewed the service treatment records, including the “two acute isolated back episodes in 12/1977 back strained treated and resolved and 7/28/03 treated and resolved,” as well as the 2011 back treatments and findings on MRI. The examiner stated that based on the acute nature of the back injuries in service and lack of chronicity of any back condition for some eight years since the last acute injury in 2003, it was less likely as not that the Veteran had any chronic back condition related to military service. In October 2017, the Veteran submitted a statement from a private physician that noted that his back condition was secondary to a service-connected disability, however the doctor did not indicate which disability it was supposed to be secondary to, nor was any other explanation offered as to how such relationship would exist. The Board notes that the Veteran has not claimed secondary service connection for his back disability. The Veteran contends that he has a current low back disability that is attributable to service. The Veteran is competent to report back pain symptoms, which are within the realm of his personal experience. The Veteran, however, is not competent to offer an opinion as to the etiology of his claimed disability. Determining the etiology of degenerative disc disease in this case requires medical knowledge or training that the Veteran does not have and is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran had episodes of back strain in service; however, a chronic low back disability was not noted during service. The record shows degenerative disc disease was diagnosed in 2011. The VA examiner in April 2013 noted that the in-service back complaints were acute and had resolved, that there was no showing of chronic back disability in service, and that the currently diagnosed degenerative disc disease was not attributable to the Veteran’s service. The examiner’s opinion is uncontradicted in the record. In consideration of the evidence, the Board finds that the Veteran’s in-service back complaints resolved without residuals, and the current back disability, diagnosed as degenerative disc disease, began years after service and was not caused by any incident of service. Thus, the preponderance of the evidence is against the claim of service connection for a back disability; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left shoulder disability The service treatment records do not note any complaints or findings regarding the left shoulder. On a medical history questionnaire completed by the Veteran in December 2003, he did not report any left shoulder complaints. On a private treatment record dated in October 2014, the Veteran reported worsening right shoulder pain in recent weeks; he “denied pain on the non-dominant left side.” On VA examination in February 2015, the Veteran reported onset of left shoulder pain within the last year. He denied a specific injury and stated that symptoms gradually onset. His pain increased with overhead activities and upper body dressing. The examiner diagnosed left shoulder impingement syndrome and arthritis. The examiner opined that the Veteran’s “current left shoulder symptoms are less likely than not related to his military service. There is no record of shoulder pain or injury in his STR’s to substantiate a relationship between his current symptoms and his military service.” The Veteran testified before the undersigned that he had experienced left shoulder pain beginning in service, but that his right shoulder was worse, and he did not report any left shoulder complaints at that time. He further testified that he believed that his pain medications for other disabilities had masked his left shoulder pain for some years. The Veteran contends that he has a current left shoulder disability that began in service. The Veteran is competent to report left shoulder pain symptoms, which are within the realm of his personal experience. The Veteran, however, is not competent to offer an opinion as to the etiology of his claimed disability. Determining the etiology of left shoulder impingement syndrome and arthritis in this case requires medical knowledge or training that the Veteran does not have and is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, the Board notes that the Veteran’s statements regarding the onset of his left shoulder pain have been inconsistent. While he testified at his videoconference hearing that his left shoulder pain began in service, he denied left shoulder pain in October 2014 and he told the VA examiner in February 2015 that the pain had its onset within the last year. Given the lack of objective evidence of left shoulder complaints in service or for many years after, the Board finds the Veteran’s testimony regarding inservice onset of left shoulder pain to be less probative than the examiner’s opinion. The VA examiner in February 2015 opined that the Veteran’s current left shoulder pathology was not attributable to military service. The examiner’s opinion is uncontradicted in the record. The record includes a diagnosis of arthritis of the left shoulder. Arthritis is a presumptively service-connectable chronic disease; however, the evidence does not show that any arthritis of the left shoulder was manifest to a compensable degree within one year of service discharge. Finally, given that arthritis of the left shoulder was not noted in service, service connection is not warranted based on a continuity of symptomatology. In consideration of the evidence, the Board finds that the Veteran’s current left shoulder disability, diagnosed as impingement syndrome and arthritis, began years after service and was not caused by any incident of service. Thus, the preponderance of the evidence is against the claim of service connection for a left shoulder disability; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to an initial rating in excess of 20 percent for right shoulder acromioclavicular joint disease Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The right shoulder disability is currently rated under hyphenated Diagnostic Codes 5201-5019. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The Veteran’s right shoulder strain, with AC joint degenerative joint disease, is currently rated at 20 percent for the entire appeals period. Diseases rated under DC 5019 will be rated on limitation of motion of affected parts, as degenerative arthritis. When limitation of motion is compensable under the appropriate code, then that rating should be assigned. When limitation of motion is noncompensable under the appropriate code, a 10 percent rating is assigned for each major joint or group of minor joints affected by limitation of motion, to be combined. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under DC 5201, a 20 percent rating is assigned where there is limitation of motion at shoulder level; 30 percent is to be assigned where there is limitation of motion midway between side and shoulder level; and limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder. 38 C.F.R. § 4.71a. Regarding DC 5201, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, “The plain language of section 4.71a confirms that a veteran is only entitled to a single disability rating under diagnostic code 5201 for each arm that suffers from limited motion at the shoulder joint. The diagnostic code 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 (Fed. Cir. 2013). Normal range of motion of the shoulder is set forth in 38 C.F.R. § 4.71, Plate I. Normal forward elevation, or flexion, is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Medical evidence of record establishes that the Veteran is right-handed. On VA examination in January 2014, the Veteran reported gradual onset of right shoulder pain over course of duty due to repetitive overuse and strain injuries. He received no treatment besides medications. He reported intermittent shoulder pain. The Veteran reported that flare-ups resulted in sleep disruption and difficulty with any repetitive motion with the right arm as well as with overhead motion. He had no further decrease in range of motion with flare ups. On examination, right shoulder flexion was to 160 degrees; right shoulder abduction was to 160 degrees. For both, pain began at 160 degrees. After three repetitions, the ranges of motion were unchanged. The examiner noted internal and external rotation to 90 degrees with end of range pain and no decrease after repetition. The examiner noted functional loss from less movement than normal and from pain on movement. There was no localized tenderness or pain on palpation of joints/soft tissue/biceps tendon, and no guarding of the shoulder. The examiner noted 5/5 muscle strength testing. There was no ankylosis of the right shoulder. Hawkins’ Impingement Test, Empty-can test, External rotation/Infraspinatus strength test, and Lift-off subscapularis test were all negative. There was a history of mechanical symptoms, but no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. An August 22, 2014 treatment record noted that the Veteran reported that his right shoulder pain had become constant and worse for the past six to seven weeks. He was unable to sleep on that side. His pain was worse especially with internal rotation. On examination, the right shoulder was tender over the AC joint. Pain was elicited with internal rotation, full abduction. The Veteran was able to maintain abduction against resistance. Active range of motion of the right shoulder was: flexion to 130 degrees; abduction to 135 degrees; external rotation to 70 degrees; and internal rotation to 55 degrees. Passive range of motion was flexion to 145 degrees; abduction to 170 degrees; external rotation to 80 degrees; and internal rotation to 75 degrees. The Veteran was noted to have degenerative joint disease and signs consistent with impingement syndrome. On follow-up in October 2014, the Veteran’s active range of motion of the right shoulder was: flexion to 130 degrees; abduction to 120 degrees; external rotation to 70 degrees; and internal rotation to 55 degrees. Private treatment records associated with the claims file on April 28, 2015 included an October 2014 visit during which the Veteran reported progressive worsening of his right shoulder since June 2014. He attributed this to throwing tires at work. The Veteran described the pain as very disturbing at night and stated that he could not sleep well. The pain was sharp and it radiated. The Veteran underwent arthroscopic right subaccromial decompression and distal clavicle excision surgery in March 2015. On VA examination in May 2015, the Veteran reported that his right shoulder pain was worse with movement of the arm around the shoulder joint. He denied flare-ups. Range of right shoulder motion was noted as flexion to 140 degrees; abduction to 160 degrees; external rotation to 90 degrees; and internal rotation to 90 degrees. The examiner stated that there was no additional functional loss or range of motion after three repetitions; however, the examiner then stated that after repetitive use, flexion was to 160 degrees and abduction to 130 degrees. There was no evidence of pain with weight bearing. There was mild tenderness to palpation of the area overlying the AC joint. There was no objective evidence of crepitus. Muscle strength was 5/5. There was no ankylosis of the right shoulder. Hawkins’ Impingement Test and Empty-can test were positive. External rotation/Infraspinatus strength test and Lift-off subscapularis test were negative. No shoulder instability, dislocation or labral pathology was suspected. The examiner noted that arthroscopic right subacromial decompression and distal clavicle excision surgery was performed in March 2015 and that while some pain was still present, he was improved compared to before the surgery. A March 2016 VA treatment record noted that the Veteran’s right shoulder showed no swelling or effusion; there was full active range of motion. The Veteran was able to maintain abduction against resistance. A June 2016 VA treatment record noted range of right shoulder motion as flexion to 125 degrees; abduction to 125 degrees; external rotation to 82 degrees; and internal rotation to 42 degrees. In July 2016, range of right shoulder motion was noted as flexion to 140 degrees; abduction to 133 degrees; external rotation to 87 degrees; and internal rotation to 48 degrees. A September 2016 treatment record noted range of right shoulder motion as abduction to 160 degrees; external rotation to 90 degrees; and internal rotation to 70 degrees. The currently assigned 20 percent rating under DC 5201 contemplates, with consideration of pain, that the Veteran’s right shoulder disability picture more nearly approximates limitation of arm motion at shoulder level. A higher, 30 percent rating is not warranted because at no point during the appeal period has the Veteran’s right arm been limited in motion to midway between the side and shoulder level. Such limitation of motion has not been shown on objective test results even with consideration of 38 C.F.R. §§ 4.40, 4.45 as discussed above. There is no doubt to be resolved; a higher, 30 percent rating is not warranted. The Board notes that the Veteran’s representative, in the February 2021 informal hearing presentation, requested that another VA examination be scheduled since the most recent VA examination of the right shoulder was conducted in May 2015. The Board finds that, given that the more recent treatment records do not demonstrate worsening of the condition, and that range of motion measurements were documented in 2016, that there is no need for another examination. In summary, the Veteran’s right shoulder disability does not warrant an initial rating in excess of 20 percent at any time during the appeals period. There are no additional expressly or reasonably raised issued presented on the record. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.