Citation Nr: 21015546 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-12 185 DATE: March 17, 2021 ORDER Service connection for a left shoulder disorder is denied. A compensable rating for residuals of a fracture of the right leg distal tibia is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the Veteran has a left shoulder disorder that is causally related to his service. 2. The preponderance of the evidence weighs against finding that the Veteran has malunion as a residual of the service-connected residuals of fracture of the right leg distal tibia. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.302, 3.303. 2. The criteria for a compensable rating for residuals of a fracture of the right leg distal tibia have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to January 1979. This case is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in September 2012 and February 2015. These matters were previously remanded by the Board in November 2018. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). The Board notes that the Regional Office granted a 10 percent rating for a right knee strain, associated with the claim for an increased rating for a right tibia disability, considered herein, in January 2021. The Veteran submitted a VA Form 10182 and that issue is currently pending in the AMA framework. 1. Service connection for a left shoulder disorder Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Factual Background & Analysis The Veteran contends that his left shoulder disorder began in 1977 during active military service. VA treatment records document decreased range of motion in abduction, flexion, and extension of the left shoulder and provide a diagnosis of muscle spasm. A review of the Veteran’s service treatment records reveals that the Veteran did not complain of or receive treatment for a left shoulder disorder during active military service; however, in the October 1978 Report of Medical History form, the Veteran indicated that he experienced swollen or painful joints. The Board remanded this claim in November 2018 for a VA examination and medical opinion to address whether the Veteran has a left shoulder disorder that is causally related to his service. On October 2020 VA examination, the Veteran stated that he injured his left shoulder in 1978 when he was thrown into truck during service. He was diagnosed with bilateral shoulder strains. The examination report notes that September 2020 x-ray imaging showed no shoulder abnormalities. The examiner opined that it is less likely than not that the Veteran’s left shoulder disorder was incurred in or caused by the claimed in-service injury, event or illness. As a rationale, the examiner stated that the claimed left shoulder injury during service was acute in nature. Moreover, there is no evidence of a chronicity of care because the evidence first documents complaints of left shoulder symptoms in 2012—34 years after the reported in-service injury to the left shoulder occurred—leading to the examiner’s conclusion that a nexus had not established by the medical evidence of record. The Board has carefully reviewed the lay and medical evidence of record and finds any statements as to continuity of symptoms referable to a left shoulder disorder since service are not credible based on the record, as a whole, including no mention of this for several decades following service. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant’s testimony); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). Further, the record is bereft of any mention of in-service events or incidents during his course of treatment at VAMC or private facilities precipitating reported chronic left shoulder pain. In addition, the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion for a left shoulder disorder. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of the shoulder joint, to include as due to remote trauma. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, there are no records prior to 2012 suggesting a chronic left shoulder disorder stemming from an event during service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). There is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran has a left shoulder disorder that is causally related to, or aggravated by, his service and his statements asserting continuity of symptoms since service are not credible. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Consequently, the preponderance of the evidence weighs against finding that the Veteran has a left shoulder disorder is causally related to his service. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable, and the appellant’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. A rating in excess of 0 percent for residuals of a fracture of the right leg, distal tibia Legal Criteria Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or maligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Finally, VA amended the criteria for rating musculoskeletal disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board cannot apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Factual Background & Analysis A November 2014 VAMC primary care note documents symptoms of sharp right leg pain, the Veteran communicated during the examination that he cannot walk very far. The treating clinician observed that he lifts the right leg more when walking. On February 2015 VA examination the Veteran reported difficulty standing that he has to “switch positions” often. The Veteran reported flare-ups on his ability to stand. Initial range of motion (ROM) testing showed right knee flexion to 110 degrees and extension to 0 degrees and left knee flexion to 140 degrees and extension to 0 degrees. There was no evidence of pain with weight bearing. No additional right knee functional loss or ROM loss after repetitive-use testing was noted. Muscle strength and joint stability testing produced no abnormalities. The Veteran stated in the “functional impact” portion of the examination report that his right knee “feels like an open knee” and that he can’t stand for too long. VAMC primary care notes spanning from December 2016 to June 2017 document symptoms of the right leg feeling as if it is “giving out,” numbness when standing and walking and achiness. On October 2020 VA examination the Veteran reported progressing right knee pain and that his knee will “give out.” He has pain with standing and sitting for extended periods with decreased ROM in the right knee. Initial ROM measurements were abnormal or outside of normal range. Pain was noted with flexion. There was no additional loss of function or ROM after three repetitions. The Veteran did not report any right knee flare-ups. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time due to pain and lack of endurance. The examiner was able to describe in terms of ROM with flexion to 80 degrees and extension to 0 degrees. There was no ankylosis or tibial impairment documented. Joint stability tests were normal. Use of a brace and cane for residuals of fracture of the right tibia was indicate. In an October 2020 addendum to the examination report the examiner reported, “There is evidence of impairment of the right tibia and fibula to note the need for cane/brace for stability but there is no objective evidence of malunion or nonunion. The cane and brace were noted for knee and back conditions. In the history section the veteran noted knee buckling and giving and out. The brace is for the knee condition residuals of the right leg fracture distal tibia and the cane is for stability due to the right knee and back conditions.” Initially, the Board finds that an initial rating in excess of 0 percent under DC 5262 for impairment of the tibia and fibula is not warranted. The Veteran was assigned an initial 0 percent rating under DC 5262 for residuals of an old fracture of the distal right tibia occurring during service in 1978. A higher 10 percent rating is warranted under DC 5262 for malunion with slight knee or ankle disability. February 2015 and October 2020 VA examination reports do not document any objective symptoms or indications of malunion, even with consideration of functional impairment and flare-ups. Consequently, a compensable rating under DC 5262 is not warranted. The Board has considered whether a higher rating would be warranted under the amended criteria (effective February 7, 2021) for DC 5262 which compensates for medial tibial stress syndrome (MTSS), or shin splints. The evidence does not document a diagnosis for either of these disabilities. Therefore, separate ratings are not warranted under the amended rating criteria for DC 5262 from February 7, 2021 onwards. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5262). In sum, a compensable rating is not warranted under DC 5260 for residuals of a fracture of the right leg distal tibia throughout the appeal period even with consideration of functional loss. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable, and the appellant’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.