Citation Nr: 21012798 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-17 892 DATE: March 5, 2021 ORDER A rating in excess of 20 percent for right shoulder tendonitis is denied. Service connection for obstructive sleep apnea (OSA) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from July 1982 to July 1992. 2. A right shoulder disability has been manifested by subjective complaints of a limited ability to lift the arms above the head; objective findings include limitation of motion of 110 degrees from the side, no ankylosis or malunion of the humerus with marked deformity, and no episodes of recurrent dislocation of the humerus at the scapulohumeral joint. 3. The current diagnosis of OSA was not shown in service, is not causally or etiologically related to service, and was not caused by or permanently worsened in severity by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right shoulder tendonitis have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DCs 5024-5201 (2020). 2. OSA was not incurred in service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In May 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Increased Rating for Right Shoulder Tendonitis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. With regard to the Veteran’s right shoulder disability, DC 5024 provides that tenosynovitis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Thus, he was rated at 20 percent under DC 5201 for right shoulder tendonitis. However, the Board will consider all potentially relevant diagnostic codes in assessing the merits of this appeal. In this case, the Veteran’s right shoulder has been found to be his major or dominant extremity for purposes of evaluation. Thus, in order for a higher rating to be warranted, the evidence must show: • favorable ankylosis of the scapulohumeral articulation, with abduction to 60 degrees and an ability to reach the mouth and head (30 percent under DC 5200); • limitation of the motion of the arm midway between side and shoulder level (30 percent under DC 5201); • recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements (30 percent under DC 5202); or, • malunion of the humerus with marked deformity (30 percent under DC 5202). Turning to the medical evidence, at a January 2017 VA examination, the Veteran reported that his condition had progressively worsened in terms of pain. He noted that he received physical therapy, and described this pain as a constant, sharp pain rated at about a 5/10 out in intensity. He also stated that his pain worsened with overhead activity, which caused flare-ups, and that he took tramadol as needed with partial relief. Upon physical examination, there was no ankylosis, no episodes of dislocation, guarding, or any deformity, and no malunion or condition related to the humerus. Range of motion testing revealed flexion to 165 degrees, abduction to 160 degrees, and external and internal rotation to 80 and 75 degrees respectively. Medical treatment records revealed that the Veteran underwent rotator cuff surgery in April 2018; however, no symptomatology warranting a higher rating was recorded in the pre-operative or post-operative treatment notes. In September 2018, he reported an improvement in right shoulder pain, although still sporadically receiving treatment for the right shoulder. At an October 2020 VA examination, the Veteran complained of progressively worsening pain in his right shoulder. He reported no improvement in his pain following his April 2018 surgery. He noted that he continued to receive physical therapy, and that he experienced one to three episodes or flare-ups per month, which lasted all day, resulting from overhead activity or lifting and carrying heavy objects. Range of motion testing showed flexion to 120 degrees, abduction to 110 degrees, and external and internal rotation to 70 degrees. The examiner found that his abnormal range of motion did not contribute to a functional loss, but that pain was noted on examination. There was no ankylosis and no limitation of the motion of the arm between side and shoulder level. There was no shoulder instability, dislocation, or malunion pathology suspected, to include any humeral conditions. Available VA and private treatment records alike also revealed no findings or symptomatology consistent with a rating in excess of 20 percent for the Veteran’s right shoulder disability. Based on the above, the medical evidence does not support a 30 percent rating for right shoulder tendonitis. In this regard, both the January 2017 and October 2020 VA examiners found at worst, limited motion to 120 degrees, no dislocation of the humerus, no ankylosis, and no malunion of the humerus. Therefore, the medical evidence does not support a higher rating. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s right shoulder tendonitis has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Service Connection for OSA Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran contends that OSA was caused by service or is the result of his service-connected disabilities. An April 2011 VA examiner found that the Veteran had OSA. Additionally, private 2008 treatment records showed a diagnosis of OSA. Thus, a current diagnosis is shown, and the first element of service connection is met. As to an in-service incurrence, the service treatment records (STRs) are absent for any complaints, diagnoses, or treatment for a sleep disorder. The Veteran never reported sleep difficulties or symptoms reasonably attributed to OSA. While his separation examination is not legible, a September 1992 Reserve enlistment examination, conducted just a couple of months following his separation from active duty, revealed no sleep issues. Specifically, he denied any trouble sleeping, or trouble breathing. Therefore, the second element (in-service incurrence) is not met. To the extent that the Veteran contends that in-service snoring was evidence of an in-service incurrence, an October 2020 VA examiner opined it was less likely than not that OSA was related to service. The examiner reasoned that available records were silent for complaints or treatment for OSA. The examiner noted that the Veteran was not diagnosed until 2008, which was over 10 years following his discharge from service. Thus, the medical evidence does not support service connection on a direct basis. As to secondary service connection, the Veteran submitted an October 2010 letter from his private physician suggesting that OSA was caused or permanently worsened by his service-connected musculoskeletal disabilities. No rationale was provided, but the treatment provider specifically listed the lumbar spine and shoulder disabilities. The Veteran has been service connected for lumbar paravertebral myositis and right shoulder tendonitis since July 1992; thus, the second element of secondary service connection is met. As to a medical nexus between the service-connected disabilities and OSA, a VA examiner opined in October 2020 that the Veteran’s OSA was less likely than not caused or aggravated by his lumbar spine and right shoulder disabilities. The examiner reasoned that by definition, OSA and the right shoulder and lumbar spine disabilities were different disease entities with different pathophysiological processes which were unrelated to one another. The examiner also noted that there was no medical evidence which linked OSA to the lumbar spine and right shoulder disabilities. The examiner concluded that there was also no objective evidence that OSA has been aggravated beyond its natural progression by either the lumbar spine or right shoulder disabilities. This evidence weighs against the appeal on a secondary basis. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran’s past medical history or that he misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record as the October 2010 letter provided no reasoning or rationale. Therefore, the Board finds the VA examiner’s opinion to be of great probative value. The Board has considered the Veteran’s lay statements that his disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.