Citation Nr: 21025631 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-24 804 DATE: April 28, 2021 ORDER Service connection for a right shoulder disability is granted. Service connection for a left shoulder disability is granted. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a rating in excess of 10 percent for the service-connected left knee medial collateral ligament tear with arthritis and bone spur is remanded. Entitlement to a rating in excess of 10 percent for the service-connected left lateral eyebrow scar is remanded. Entitlement to a rating in excess of 10 percent for the service-connected left ankle posttraumatic degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for the service-connected right ankle small chip off medial malleolus is remanded. FINDINGS OF FACT 1. The Veteran’s chronic right shoulder disability onset during his active service. 2. The Veteran’s chronic left shoulder disability onset during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1977 to September 1988. In October 2019, the Board of Veterans’ Appeals (Board) issued a decision denying service connection for right and left shoulder disabilities; a compensable rating for bilateral hearing loss; and ratings in excess of 10 percent for the service-connected left knee, eyebrow scar, right ankle, and left ankle disabilities. Thereafter, the Veteran appealed such aspects of the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision as to such claims and remanded the case for further consideration. The same October 2019 Board decision also remanded additional claims which have not yet been recertified to the Board. As such, only the issues denied in the October 2019 Board decision are properly again before the Board at this time. Service Connection for Right and Left Shoulder Disabilities Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). VA treatment records show that the Veteran underwent X rays of his shoulders in April 2016. These radiographic films showed degenerative changes (arthritis) bilaterally. As such, the current disability prong of these claims for service connection have been met. Further, the Veteran submitted a private examiner’s August 2017 report in which the examiner concluded that the Veteran’s bilateral shoulder pain began in service and has persisted since then. Thus, the Veteran’s bilateral shoulder disability onset in service. This opinion provides the remaining criteria needed to service connect the Veteran’s bilateral shoulder arthritis. The Board recognizes that the December 2017 VA shoulder and arm conditions examiner opined against service connection for the Veteran’s bilateral shoulder disability. However, while the Board cannot ignore or disregard the VA examiner’s medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the 2017 VA examiner’s opinion was found to be inadequate by the Court in its decision upholding the parties’ JMPR. According to the JMPR, the medical opinion did not adequately address the Veteran’s contentions. The Board is bound by the Court’s finding, with which it also agrees regarding the inadequacies in this opinion. As such, the Board affords negligible probative weight to this opinion. In this case, the Veteran has sufficiently presented evidence supporting service connection for his bilateral shoulder disabilities. In reaching this conclusion, the Board finds relevant the probative private 2017 opinion as well as the absence of a probative opinion contradicting this private examiner’s findings. As such, service connection is warranted for the Veteran’s right and left shoulder disabilities, as they are chronic conditions for which he has been experiencing symptoms since active service and for which a medical provider has found onset in service. REASONS FOR REMAND The JMPR raised issue with the Board’s prior determination that the Veteran’s challenge to the competence of prior VA examiners who were nurse practitioners was unfounded as their competence was presumed (absence evidence to the contrary). The Court, by granting the JMPR, requires the Board to develop information regarding the qualifications of, specifically, the December 2017 VA examiner. However, the JMPR had expanded the Veteran’s complaint which had been raised in an April 2018 formal appeal to the Board specifically regarding an examiner’s competency as to a left ankle examination. Because the Veteran’s increased rating claims for his ankles were adjudicated in separate rating decisions and statements of the case, and because the Veteran had an additional VA examination of his left ankle in May 2017, separate from the December 2017 VA examination of both ankles, the Board finds it unclear as to why the December 2017 VA examination was assumed to be the one he was contesting, as all VA examinations of record related to this appeal, outside of VA hearing loss examinations, were performed by nurse practitioners. As such, to ensure the Veteran’s objection regarding nurse practitioner(s) providing examinations would be sufficiently addressed, qualifications of all prior nurse practitioners who examined the Veteran would be needed. Because some of the examinations are over five years old and because this would require obtaining qualifications on four different VA examiners whose whereabout could currently be unknown, the Board finds that the most efficient and effective way to address the Veteran’s concerns is to afford him new VA examinations with appropriate physicians for all disabilities on appeal, other than his bilateral hearing loss (for which the Veteran did not contest the qualifications of the examining audiologist). All examining physicians’ certifications should also be provided before the case returns to the Board in order for there to be sufficient evidence to address similar issues if raised by the Veteran going forward with the new examinations. Entitlement to a compensable rating for bilateral hearing loss The Veteran seeks a compensable rating for his bilateral hearing loss. The JMPR directed the Board to obtain audiogram results from a January 2013 VA outpatient audiological consultation which are not currently associated with the claims file. As such, these records must be sought before the Board can decided this claim. Entitlement to a rating in excess of 10 percent for the service-connected left knee medial collateral ligament tear with arthritis and bone spur The Veteran also seeks a rating in excess of 10 percent for his service-connected left knee disability. In addition to needing a new VA examination for the reasons previously given herein, in light of additional directions regarding this claim in the JMPR, the examiner should address the Veteran’s lay statements regarding left knee instability if no instability is found on objective testing. Entitlement to a rating in excess of 10 percent for the service-connected left lateral eyebrow scar The Veteran also seeks a rating in excess of 10 percent for his service-connected left eyebrow scar. In addition to needing a new VA examination for the reasons given previously, in light of additional directions regarding this claim in the JMPR, the examiner should address the Veteran’s lay statements regarding his experiencing pain in the scar, specifically as noted in his March 2018 notice of disagreement. Entitlement to a rating in excess of 10 percent for the service-connected right ankle small chip off medial malleolus and a rating in excess of 10 percent for the service-connected left ankle posttraumatic degenerative joint disease The Veteran also seeks ratings in excess of 10 percent for his service-connected left and right ankle disabilities. In addition to needing a new VA examination for the reasons given previously, in light of additional directions regarding these claims in the JMPR, the examiner should ensure compliance with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017) in describing additional functional loss in the Veteran’s ankles in terms of range of motion during flare-ups. Also, as outlined in the JMPR, the prior VA ankle conditions examiner did not discuss the Veteran’s March 2001 X rays of his left ankle showing “chronic nonunion L[eft] medial malleolus,” which suggests the possibility of an additional compensable rating being warranted under Diagnostic Code 5273. As such, the new VA examination must include new X -rays be taken of the ankles, and the findings of such, as well as the findings of the March 2001 left ankle X-rays, must be discussed. Accordingly, these matters are REMANDED for the following actions: 1. Locate and associate with the Veteran’s file his complete January 2013 VA audiology treatment records, to include audiometric results (pure tone testing, audiograms, speech reception thresholds, word recognition and discrimination scores, and all other audiometric data). 2. Schedule the Veteran for an examination by an appropriate physician who has not already examined the Veteran to determine the current severity of his service-connected left knee disability. The examiner’s curriculum vitae should be obtained and uploaded into the claims file with the examination report. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, specifically, Diagnostic Codes 5260 and 5261 for limitation of motion and 5257 for instability, in light of the Veteran’s contentions. To the extent possible, the examiner should identify any symptoms and functional impairments due to this service-connected left knee disability on any occupational functioning and activities of daily living. In doing so, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Finally, the examiner is advised that the criteria of Diagnostic Code 5257 were amended, effective February 7, 2021. The examiner must provide a complete examination of the disability in accordance with both the old and new regulations. The new criteria are: (a.) Does the Veteran present with recurrent subluxation or lateral instability, as follows: a. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; or b. One of the following: i. Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or ii. Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation); or iii. Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. (b.) Does the Veteran present with patellar instability, as follows: a. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker; or b. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker; or c. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. In addressing the Veteran’s left knee instability, the examiner should consider his lay statements about the instability symptoms he has experienced in his left knee, regardless of findings on instability objective testing on examination. A rationale for all requested opinions shall be provided. 3. Also, schedule the Veteran for an examination by an appropriate physician who has not already examined the Veteran to determine the current severity of his service-connected left eyebrow scar. The examiner’s curriculum vitae should be obtained and uploaded into the claims file with the examination report. The Veteran’s claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of this service-connected scar. To the extent possible, the examiner should identify any symptoms and functional impairments due to this service-connected scar on any occupational functioning and activities of daily living. The examiner should make sure to address the Veteran’s lay statement made in his March 2018 notice of disagreement that the scar is painful. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Also, schedule the Veteran for an examination by an appropriate physician who has not already examined the Veteran to determine the current severity of his service-connected right and left ankle disabilities. The examiner’s curriculum vitae should be obtained and uploaded into the claims file with the examination report. The examination should include X rays taken of the Veteran’s left and right ankles, and the examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria, specifically, Diagnostic Code 5271 for limitation of motion and 5273 for malunion of os calcis or astragalus, in light of the Veteran’s contentions and evidence of record. To the extent possible, the examiner should identify any symptoms and functional impairments due to these service-connected left and right ankle disabilities on any occupational functioning and activities of daily living. In doing so, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing for each ankle. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repeated use over time in both ankles. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Finally, the examiner is advised that the criteria of Diagnostic Code 5271 were amended, effective February 7, 2021. The examiner must provide a complete examination of the Veteran’s service-connected right and left ankle disabilities in accordance with both the old and new regulations. The new criteria are: (a.) Does the Veteran present with limited motion of the ankle, as follows: a. Marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion); or b. Moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). In addressing the Veteran’s ankle’s malunion of os calcis or astragalus, the examiner should discuss the significance of x-ray findings, to specifically include March 2001 x-rays of his left ankle showing “chronic nonunion L[eft] medial malleolus.” Current x-ray findings for both ankles must also be discussed. A rationale for all requested opinions shall be provided. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The (CONTINUED ON NEXT PAGE) Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.