Citation Nr: 21014304 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-28 660 DATE: March 11, 2021 ORDER Service connection for a left shoulder disability is denied. Service connection for a right shoulder disability is denied. Service connection for a right hand disability is denied. A rating in excess of 10 percent for patellofemoral pain syndrome, right knee, is denied. A rating in excess of 10 percent for patellofemoral pain syndrome, left knee, is denied. A compensable rating for hypertension is denied. REMANDED The issue of service connection for a left eye disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s left shoulder disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s right shoulder disability began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran’s right hand disability began during active service or is otherwise related to an in-service injury or disease. 4. The Veteran’s right knee patellofemoral pain syndrome is not manifested by leg flexion limited to 30 degrees, nor is there limitation of extension, lateral instability, recurrent subluxation, or ankylosis. 5. The Veteran’s left knee patellofemoral pain syndrome is not manifested by leg flexion limited to 30 degrees, nor is there limitation of extension, lateral instability, recurrent subluxation, or ankylosis. 6. The Veteran’s hypertension is not manifested by diastolic pressure predominantly 100 or more, systolic pressure 160 or more, or history of diastolic pressure predominantly 100 or more and requiring continuous medication. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right hand disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a disability evaluation in excess of 10 percent for the Veteran’s service-connected right knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5257-5262. 5. The criteria for a disability evaluation in excess of 10 percent for the Veteran’s service-connected left knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5257-5262. 6. The criteria for a compensable disability evaluation for the Veteran’s service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.104, DC 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 and May 1996. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a October 2011, March 2012, and August 2012 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in October 2018 for further development. 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, 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). Service connection for right and left shoulder disabilities is denied. The Veteran contends that he injured his left shoulder during service, and that he has a right shoulder disability that is related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, although the Veteran has current diagnoses of both left and right shoulder disabilities, the preponderance of the evidence weighs against finding that the Veteran’s disabilities began during service or are otherwise related to an in-service injury or disease. The service treatment records fail to include any findings attributed to a shoulder injury. In a January 1992 dental health questionnaire, the Veteran checked “yes” when asked about painful joints. It does not specify which joints were painful. The service treatment records reflect that the Veteran was involved in a motor vehicle accident in August 1994. He reported pain in his neck, back, and right knee. There is no mention of any shoulder injury. In a March 1996 Report of Medical History, completed upon discharge from service, the Veteran checked “yes” when asked about a painful or “trick” shoulder or elbow; however, in the notes section of the report, he stated that he had a mild discomfort in his right elbow. There is no mention of any shoulder pain. An October 1996 treatment report reflects that the Veteran reported that he sprained his left shoulder in 1993, and that he has experienced pain in the shoulder when lifting heavy objects. Examination of the shoulder revealed subjective tenderness over the anterior aspect of the joint on deep pressure. There was no loss of motion, abnormality, or apparent dysfunction. The examiner diagnosed the Veteran with a history of left shoulder sprain, without x-ray evidence of the disease. A February 2012 treatment report reflects right and left shoulder pain of approximately three months’ duration; however, it states a progressive onset beginning in 1992. Additional post-service treatment reports include a report of bilateral shoulder pain in October 2016 in conjunction with an August 2016 motor vehicle accident. An October 2016 MRI of the right shoulder was unremarkable. In April 2017, it was noted that the Veteran was status post right shoulder arthroscopy. The Veteran was involved in another motor vehicle accident in November 2017, for which he reported neck and shoulder stiffness. The Veteran underwent a VA examination in July 2019. He reported that he injured his left shoulder in 1993 when he fell from a truck. He received no treatment for it. He stated that his right shoulder pain began in 1994 or 1995. He attributed it to overcompensating for a left shoulder injury. The examiner rendered an opinion that weighs against the Veteran’s claim for a left shoulder disability. She stated that the claimed disability was less likely than not incurred or caused by the claimed in-service injury. She noted that although the Veteran reported a left shoulder sprain in October 1996, there was no x-ray evidence of it. Moreover, no arthritic condition was diagnosed within one year of service. She also noted that radiology imaging completed in conjunction with the July 2019 examination was also negative. Regarding the Veteran’s left shoulder, there is no medical evidence of an in-service injury. Although the Veteran reported subjective symptoms of pain in October 1996, there was no objective evidence of an injury. Further, the July 2019 VA examiner opined that the Veteran’s left shoulder strain is not at least as likely as not related to an in-service injury or disease. The rationale was that there was no medical evidence of an injury during service, and there was no evidence of arthritis within one year of service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Regarding the Veteran’s right shoulder, there is no medical evidence of an in-service injury. Nor is there any evidence of a right shoulder disability for many years after service. The Board recognizes that the July 2019 VA examiner did not render an opinion regarding the right shoulder. In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board feels that an examination or opinion is not required. McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case as the evidence of records fails to suggest that a right shoulder disability, first reported many years post service, had its onset in service or is otherwise related thereto. Finally, the Board notes that at the July 2019 VA examination, the Veteran suggested that his right shoulder disability is due to overcompensating for a left shoulder disability. In so far as the Veteran’s left shoulder disability has not been service connected, the Veteran’s right shoulder disability cannot be service connected as secondary to the left shoulder. The Veteran believes his right and left shoulder disabilities are related to an in-service injury, event, or disease. He is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the July 2019 VA examiner. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and service connection for right and left shoulder disabilities must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a right hand disability is denied. The Veteran contends that his right hand disability is related to service. Specifically, he asserts that it is due to an avulsion injury to his right hand, 3rd digit. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of right hand strain with neuropathy, and evidence shows that he was assessed with an avulsion injury to his right hand, 3rd digit, during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of right hand strain with neuropathy began during service or is otherwise related to an in-service injury, event, or disease. Again service records reflect that in a January 1992 dental health questionnaire, the Veteran checked “yes” when asked about painful joints. It does not specify which joints were painful. Additional treatment records reflect that he incurred an avulsion injury to his right hand, 3rd digit in June 1992. He stated that his finger got caught between a tailpipe. There is no further mention of it in the service treatment records. The Veteran completed a Report of Medical History in March 1996 (in conjunction with his discharge from service). He listed numerous injuries but did not mention any right hand disability. The Veteran underwent a VA examination in October 1996. He reported numerous musculoskeletal injuries but did not report a right hand disability. The Veteran underwent a VA examination in March 2011. The Board found the negative nexus opinion inadequate. Consequently, the Board places no probative value on the opinion; however, the examination is notable in that it is the first diagnosis of a right hand injury since June 1992. At the March 2011 VA examination, a right hand strain and neuropathy were diagnosed. The first post-service evidence of treatment is dated January 2013, at which time the Veteran reported worsening right hand pain. The Veteran underwent a VA examination in July 2019. He reported that he incurred a right hand disability during service. He stated that the onset was January 1992 at which time he sustained an avulsion injury to his right hand, 3rd digit. He was unsure about the details of the injury. He reported current symptoms of cracking noises in the 3rd digit of his right hand when he bends his finger. He also reported constant stiffness in his 3rd MCP and PIP areas when he bends his finger. He denied any current treatment. The examiner opined that the right hand strain with neuropathy is unrelated to the claim of having an avulsion injury to the right hand, 3rd digit. She noted that radiology imaging in March 2011 and in July 2019 were negative. She stated that no diagnosis was warranted for an avulsion injury to the Veteran’s right hand, 3rd digit due to no pathology. The examiner submitted an addendum opinion in which she further explained that the Veteran’s in-service injury was acute only. There was no evidence of chronicity of care. She noted that the Veteran failed to mention the disability at an October 1996 examination, and that radiology was normal at March 2011 and July 2019 examinations. She further noted that in March 2011, a right hand strain with neuropathy was diagnosed. An avulsion injury to his right hand, 3rd digit was not diagnosed. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his right hand disability is related to an in-service injury or disease. He is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the July 2019 VA examiner. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for a right hand disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the 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 evaluations shall be applied, the higher evaluation 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Increased ratings in excess of 10 percent for right and left knee patellofemoral pain syndrome is denied. The Veteran’s service-connected patellofemoral pain syndrome has been rated by the RO under the provisions of Diagnostic Code 5260. Pursuant to this Diagnostic Code a 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent rating is warranted for leg flexion limited to 30 degrees. A 30 percent rating is warranted for leg flexion limited to 15 degrees. The Veteran underwent a VA examination in July 2019. He reported that knee pain has worsened since its onset (1992 for the right knee and 1996 for the left knee). He reported constant right knee pain that is dull in intensity (but is sometimes sharp and locks up). He also reported intermittent sharp left knee pain that occurs randomly. He stated that his left knee “shakes at times.” He denied any current treatment, but he takes meloxicam daily, naproxen twice per day, and Tylenol as needed. He denied flare-ups. He denied any functional loss or functional impairment. Each of the Veteran’s knees is rated as 10 percent disabling. In order for an increased rating to be warranted, the Veteran’s disability would have to be manifested by leg flexion limited to 30 degrees. Upon examination, however, the Veteran achieved 135 degrees of flexion in his right knee, and 130 degrees of flexion in his left knee. There was pain noted in each knee, but it did not cause functional loss. There was no evidence of pain with weightbearing in either knee. There was objective evidence of crepitus in each knee. The Veteran was able to perform repetitive use testing in each knee, and there was no additional loss of motion after three repetitions. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time in either knee. There was no muscle atrophy or ankylosis in either knee. There was objective evidence of pain in both knees during passive range of motion and with non-weight bearing. There is no medical evidence to show that there is any additional loss of motion of either knee due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent. The Board recognizes that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both codified at 38 C.F.R. § 4.71a, may be assigned for disability of the same joint. See VAOPGCPREC 9-2004. In this case, however, the July 2019 VA examiner found that the Veteran achieved full extension. Consequently, a separate rating is not warranted for limitation of extension under Diagnostic Code 5261. Additionally, the Board notes that the law permits separate ratings for arthritis and instability of a knee. Specifically, the VA General Counsel has held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 because the arthritis would be considered an additional disability warranting a separate evaluation even if the limitation of motion was not compensable. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). At the Veteran’s July 2019 VA examination, the examiner conducted joint stability tests and found both knees to be normal. There was no history of lateral instability or recurrent subluxation in either knee. Based on the objective findings, the Board finds that a separate rating for instability is not warranted for either knee. Finally, the Board acknowledges that Diagnostic Codes 5262 allows for a higher rating for ankylosis. No such increased rating is warranted in so far as ankylosis has not been shown. To the contrary, the July 2019 VA examiner specifically found that there was no ankylosis. The Board recognizes that the Veteran also underwent a VA examination in March 2011. The examination results are substantially similar, with none of the criteria for a rating in excess of 10 percent having been met. Nor were any of the criteria met for separate ratings for limitation of extension, lateral instability, recurrent subluxation, or ankylosis. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this case, the only applicable changes were to Diagnostic Code 5257; however, as discussed, there is no evidence of subluxation or lateral instability. Thus, a higher rating under the new criteria is not warranted. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 10 degrees for the Veteran’s right and left knee patellofemoral pain syndrome must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A compensable rating for hypertension is denied. The Veteran’s service-connected hypertension has been rated by the RO under the provisions of Diagnostic Code 7101. Pursuant to this Diagnostic Code a 10 percent rating is warranted when diastolic pressures are predominantly 100 or more; or systolic pressures are predominantly 160 or more; or as a minimum evaluation with a history of diastolic pressures predominantly 100 or more and continuous medication required for control. A 20 percent rating is warranted when diastolic pressures are predominantly 110 or more; or systolic pressures predominantly 200 or more. A 40 percent rating is warranted when diastolic pressures are predominantly 120 or more. A 60 percent rating is warranted when diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran underwent a VA examination in July 2019. The onset of the disability was 2011. He stated that he currently takes 5 mg. of amlodipine per day. The examiner noted that the Veteran did not have a history of diastolic blood pressure readings of 100 or more. Upon examination, the Veteran’s blood pressure was 130/90, 138/90, and 142/92. Average blood pressure reading was 134/88. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to his hypertension. The examiner found that the Veteran’s hypertension does not impact his ability to work. The Veteran also underwent VA examinations in August 2012 and September 2013. Neither examination, nor any of the post-service medical evidence showed diastolic pressures readings that were predominantly 100 or more ; or systolic pressures predominantly 160 or more; or a history of diastolic pressures predominantly 100 or more with continuous medication required for control. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a compensable rating for hypertension must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The issue of service connection for a left eye disability is remanded. The Veteran underwent a VA examination of his left eye in March 2011. The examiner initially provided a nexus opinion in the Veteran’s favor; however, the opinion appeared to link his current left eye disability to a July 1994 trauma to the right eye. When the examiner was made aware of this, he submitted an April 2011 opinion that went against the Veteran’s claim. In its October 2018 Remand, the Board found both opinions to be inadequate, and it remanded for a new VA examination and opinion. It requested an opinion as to whether the Veteran’s current left eye disability is related to a March 1996 Report of Medical History in which the Veteran reported left eye photophobia. The Veteran underwent a July 2019 VA examination in which the examiner found that the Veteran presented with normal vision and ocular health. The examiner found no disability. The examiner did not reconcile his findings with that of the March 2011 examiner, who specifically found that the Veteran’s optic nerve was abnormal, pallor in the left eye. The March 2011 VA examiner also found that the confrontation test was abnormal, and that the Veteran’s vision was not normal. Without addressing these findings, it is unclear whether the March 2011 VA examiner’s findings were erroneous, the abnormalities resolved on their own, or whether the July 2019 VA examination simply was not as thorough. In any case, the Board cannot conclude that the Veteran does not have a left eye disability without an explanation that accounts for the objective findings noted in the March 2011 VA examination. The Board finds that another VA examination and opinion are necessary. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination for his left eye disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran’s photophobia and anterior ischemic optic neuropathy with visual field defect in his left eye is related to an in-service injury, including photo sensitivity reported in a March 1996 Report of Medical History? Provide a rationale to support the opinion(s). The examiner should note the objective findings (abnormal optic nerve, pallor, abnormal vision) observed in the March 2011 VA examination report and reconcile his/her opinion with these findings. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.