Citation Nr: 21024017 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-25 761 DATE: April 21, 2021 ORDER Entitlement to service connection for right shoulder condition to include secondary to service connection to bilateral knee condition is denied. REMANDED Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee with osteoarthritis prior to May 14, 2013, is remanded. Entitlement to a total disability due to individual unemployability (TDIU) prior to May 14, 2013, is remanded. FINDINGS OF FACT The Veteran does not have a current disability of the right shoulder. CONCLUSIONS OF LAW The criteria for entitlement to service connection for right shoulder condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1990 to November 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 and December 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in October 2020 instructing the RO to consider the additional evidence associated with the claims file before the last certification to the Board. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO readjudicated the claims and issued a Supplemental Statement of the Case (SSOC). The Board finds the RO substantially complied with the October 2020 remand directives. Entitlement to service connection for right shoulder condition. The Veteran contends that he developed a right shoulder disability secondary to his service-connected bilateral knee conditions. Because the Veteran has not raised and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. On the Veteran’s April 2012 Supplemental Claim for Compensation, he generally stated that he had a right shoulder condition secondary to his bilateral knee trauma. During the January 2019 Board hearing, the Veteran testified that after his knee surgery he experienced severe pain. He had to put a lot of pressure on his shoulder to do things. He also testified that he fell due to his knee pain and grabbed hold to something to brace his fall. This reportedly caused his shoulder to pop. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Secondary service connection requires: (1) a service connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310. During a January 1998 VA examination, the Veteran reported that he sprained his right shoulder in the military but he was unable to state when this occurred. He also stated that this injury limited his activity. No assessment was made for the right shoulder during the examination. During an October 2009 VA examination for joints, the examiner noted that the Veteran did not have any recurrent shoulder dislocation. See also January 2011 VA examination. Private treatment record dating from 2010 to 2012 contain many complaints about the knees, but no mention about the shoulder. The report of a VA muscles examination conducted in January 2020 indicates that the Veteran did not have nor did he ever had an injury to the muscle group of the shoulder girdle or arm. An August 2020 emergency note record that the Veteran’s shoulder evaluation was normal. The record shows the Veteran complained of right shoulder pain in his lay statements, but it does not show a formal diagnosis of a right shoulder disability or treatment for right shoulder pain. The Board notes that VA must provide a VA medical examination when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; 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 disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran’s active military service or with another service-connected disability; but, (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Pain may constitute a disability if there is accompanying functional impairment that the pain causes. Saunders v. Wilkie, 886 F.3d at 1356, 1367 (Fed. Cir. 2018). No VA examiner of record noted and functional impairment related to the Veteran's claimed shoulder pain; therefore, there is no objective medical evidence to suggest or support functional impairment caused by the Veteran's shoulder pain. As such, the Board finds no objective evidence of record which establishes that the Veteran's shoulder pain manifested painful or limited range of motion or caused any functional impact or impairment to warrant consideration of the Veteran's shoulder pain as a disability for VA purposes. Saunders, 886 F.3d at 1356. The Veteran does not have a current diagnosis of any shoulder disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee with osteoarthritis prior to May 14, 2013. 2. Entitlement to a TDIU prior to May 14, 2013. The Veteran contends that his service-connected right knee disability is more severe than his current rating reflects. Prior to the Board’s October 2020 remand, the Veteran’s right knee disability was rated at 50 percent disabling since December 9, 2019. While on appeal, a December 2020 rating decision awarded a temporary 100 percent rating from May 14, 2013 to June 30, 2014, and a 60 percent rating from July 1, 2014. After review of the record, the Board finds that remand is warranted to obtain all outstanding records regarding the Veteran’s worker’s compensation claim for a knee injury from his prior employer, the U.S. Postal Service, or the Department of Labor. While some records have been submitted by the Veteran, they do not appear to be complete. A letter from the U.S. Department of Labor dated in June 2013 reflects that they were either adjudicating or paying a disability claim to the Veteran under the Federal Employees Workman’s Compensation Act (FEWCA). As these workers compensation records may be relevant to the increased rating claim on appeal, an attempt to obtain these records in total is warranted. Regarding the claim for entitlement to a TDIU, the Veteran asserted that his service-connected knee disability symptoms prevent him from working. As such, the Board finds this issue is intertwined with the increased rating claim on appeal. The matters are REMANDED for the following action: Obtain and associate with the claims file any records related to the Federal Employees Workman’s Compensation benefits the Veteran might have received. Required efforts may include contacting both the U.S. Postal Service and the U.S. Department of Labor. Document all requests for information as well as all responses in the claims file. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.