Citation Nr: 21026698 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-43 245 DATE: May 3, 2021 ORDER The claim for service connection for neoplasm of the kidney with complex and indeterminate cysts of the left kidney is denied. The claim for higher rating than 20 percent for left shoulder disability is denied. The claim for a compensable rating for left shoulder surgical scars is denied. The claim for higher rating than 50 percent for obstructive sleep apnea with asthma is denied. REMANDED The claim for service connection for a low back disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's kidney condition began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's left shoulder condition does not involve limitation of motion to 25 degrees from the side, nor is there fibrous union to the humerus. 3. The residual scar from a 2013 arthroscopic left shoulder surgery is not compensable based on surface area or any characteristics. 4. The Veteran's sleep apnea is treated with a CPAP machine but he does not have chronic respiratory failure with carbon dioxide retention or cor pulmonale, and does not have a tracheostomy. There is not further respiratory impairment due to the associated condition of asthma as the basis for any higher rating. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for neoplasm of the kidney with complex and indeterminate cysts of the left kidney. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria are not met for a higher rating than 20 percent for left shoulder disability. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59; 4.71a, Diagnostic Code 5201 (2020). 3. The criteria are not met for a compensable rating for left shoulder surgical scars. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10; 4.118, Diagnostic Code 7802 (2020). 4. The criteria are not met for a higher rating than 50 percent for obstructive sleep apnea with asthma. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.96, 4.97, Diagnostic Code 6847 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Air Force from March 1993 to May 1999. The June 2018 Board decision/remand, in part, granted claims for service connection for obstructive sleep apnea, atrial fibrillation and major depressive disorder. The Board remanded claims for service connection for a low back disorder and kidney condition, and claims for increased rating for left shoulder disorder, left shoulder residual scar, and asthma. Following this, a March 2019 VA Regional Office (RO) rating decision implemented the Board's decision, including recharacterizing service-connected obstructive sleep apnea and asthma as a single ratable condition, per 38 C.F.R. § 4.96. The applicable disability rating was then increased from 30 to 50 percent, effective June 23, 2011. The claim for a still higher schedular rating remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Apart from the matter discussed below, there is a separate pending appeal under the procedures of the Appeals Modernization Act of 2017 (AMA). The claims for an increased rating for atrial fibrillation, and for total disability rating based on individual unemployability (TDIU) will be addressed during the course of a separate decision and in accordance with the AMA procedures. The current matter is based upon the legacy appeals system. As a further preliminary matter, whereas the Veteran's September 2020 VA Form 10182 (Notice of Disagreement, for purposes of AMA) contested the disability rating for obstructive sleep apnea, that issue was already merged with the claim the Board remanded for increased rating for asthma per section 4.96, and so continues to be considered according to the traditional appeals system. Service Connection The claim for service connection for neoplasm of the kidney with complex and indeterminate cysts of the left kidney is denied. Under VA law, direct service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d) (2020). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Having reviewed the record in this case, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a kidney condition, including the history of a kidney neoplasm and prior kidney cysts. The medical records show that, within the last 10 years, the Veteran recovered from a kidney cancer and the presence of one or more benign cysts. It follows that the initial requirement of a current disability is met. However, the nexus element of the service connection is not met There is not competent medical or other evidence linking the kidney disorder to the Veteran's service. Key to this finding, Service Treatment Records (STRs) did not show an issue, nor was there one notated for at least 5 years thereafter. In June 2006, VA Medical Center (VAMC) records showed a kidney cyst, previously when there were only various liver cysts present. This was approximately 7 years following separation from service, however. There were not contemporaneous records that showed an association with the Veteran's service. Subsequently, in 2010, there were additionally shown cystic changes in the left kidney, and renal cell carcinoma. He had a lower pole left kidney resection in April 2010, elsewhere described in the VA medical records as a left partial nephrectomy. The kidney procedure from 2010 subsequently led to or contributed towards having a left lateral lumbar hernia. As to the further relevant medical history, this recounted in additional detail on the VA Compensation and Pension examination from 2014 for the claimed condition, which further continued to discuss whether there was a causal nexus to service. On reviewing the January 2014 VA examination report, the diagnoses at outset were neoplasm of the kidney, and other kidney condition consisting of complex and indeterminate cysts. According to the summary of the medical history, the Veteran reported that he had a lot of infections in the bladder and kidney during service. According to the Veteran, after service he had a CT scan and a cystoscopy and they found he had a cyst in his left kidney. It turned out to be a clear cell carcinoma that measured 3.5cm. He stated that he was treated and had a partial nephrectomy in 2010. He stated that he had dark urine, no incontinence, and mild erectile dysfunction. He stated that when he went for his 6 month follow-up, he was having pain and they found a hernia at the wound site. The scar now appeared linear, well-healed, and non-tender. There was an ultrasound done of the urinary tract and a physical examination done. As to symptomatology on the VA examination, the Veteran was not taking continuous medication, did not have renal disfunction, had not ever had renal calculi. There was no kidney infection present. There had been in a malignant area of the left kidney for which there was treatment in April 2010 by a partial nephrectomy. There was now indicated a hernia left abdominal wall that measured 20-cm by 17-cm. The partial left nephrectomy scar was well-closed and nontender. No limitation on ability to work found. The examiner then stated an opinion on etiology that the kidney condition was less likely than not caused by an incident of service, stating the following rationale: The lab readings from 9/24/1996 were not associated with and did not cause the Veteran's clear cell renal carcinoma of April 2010. The lab readings were transient minor readings secondary to an acute infection that subsequently resolved. Also, recurrent kidney infections do not cause cancer. The etiology of renal cell carcinoma is unknown, however genetics play an important role in the development of 4 percent of these cancers. Major risk factors for this type of cancer includes smoking tobacco and smoking may contribute to 1/3 of all cases, and doubles the likelihood of developing renal cell carcinoma. Also obesity is also a known risk factor. Firnhaber, MD Jonathon, Renal Cell Carcinoma, the 5M Clinical Consult, 17th Ed., 2009. The renal cell carcinoma was removed in 2010. There are 2 new cysts in the left kidney, found in my exam. The Veteran has to be evaluated by the kidney specialist to decide proper treatment course. So, after reviewing the Veteran's c-file, CPRS, VISTA, CAPRI medical records, and examining the Veteran, it is my medical opinion that the claimed kidney condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's opinion reached the view that a kidney condition in all probability was not due to service, and the examiner provided different evidentiary bases and medical findings for that opinion, including a claims file review. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (the thoroughness and detail of a medical opinion is a factor in assessing the probative value of the opinion). As part of the opinion's rationale the examiner cited further that there was no record from service showing the condition, and assuming as probative evidence the Veteran's own statement about recurrent kidney infections in service, even if not documented in STRs, according to the background and information before the VA examiner, kidney infections were not generally known to cause cancerous conditions. In any event, the condition itself developed a decade after service and there may have been some other risk factors that could have played a role. Based on the above, the examiner provided a reasonable basis for the conclusion, to warrant looking at this opinion from the standpoint of having probative value. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Board may consider and evaluate the underlying basis of an opinion on a medical question, and determine whether to accept such an opinion under the circumstances). Additionally, there is not competent evidence to the contrary in the form of any other medical opinion, or documented medical evidence not already considered. The preponderance of the evidence weighs against this claim, and since VA's benefit-of-the-doubt doctrine does not apply, the claim is being denied. Increased Rating 1. The claim for higher rating than 20 percent for left shoulder disability is denied. 2. The claim for a compensable rating for left shoulder surgical scars is denied. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. When evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the background factors listed in §4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the §4.71a criteria."). The claim for an increased rating for left shoulder orthopedic condition was filed in January 2013. There was a temporary total rating in effect following a left shoulder labral repair and Bankhart procedure, and this temporary 100 percent rating was effective from February 22, 2013 through March 31, 2013. The claim for a higher schedular rating than 20 percent is considered from April 1, 2013 onwards. There was also a separate grant of service connection for a left shoulder residual scar, rated noncompensable (0 percent), effective October 16, 2013. The consideration of a claim for any higher rating for that condition is further discussed below. There is currently a 20 percent rating that applies to a left shoulder orthopedic condition under 38 C.F.R. § 4.71a, Diagnostic Code 5201. According to Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants 20 percent. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity, and 20 percent rating for a minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. 38 C.F.R. § 4.71a. Normal range of motion for the shoulder is defined as from 0 degrees of extension to 180 degrees of forward flexion; abduction from 0 to 180 degrees, and external and internal rotation from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Generally, both measurements of forward flexion and abduction are relevant to determine range of motion in the affected shoulder, for purpose of applying Diagnostic Code 5201. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Also taken into consideration is the applicability of other Diagnostic Codes. See Butts v. Brown, 5 Vet. App. 532, 539 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Code 5202, for other impairment of the humerus, provides that malunion resulting in moderate deformity, or recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level corresponds to a 20 percent rating. Malunion with marked deformity, or recurrent scapulohumeral dislocation with frequent episodes and guarding of all arm movements corresponds to 20 percent minor upper extremity, 30 percent major upper extremity. Fibrous union of the humerus corresponds to 40 percent minor extremity, 50 percent major extremity. Nonunion (false flail joint) warrants 50 percent minor extremity, corresponds to 60 percent major extremity. Loss of head (flail shoulder) corresponds to 70 percent minor extremity, 80 percent major extremity. 38 C.F.R. § 4.71a. Finally, Diagnostic Code 5203, for malunion of the clavicle or scapula has a maximum rating of 20 percent in either arm, and does not provide any greater benefit. Id. Further, the applicable VA regulations at 38 C.F.R. § 4.71a pertaining to the evaluation of musculoskeletal disorders were revised during the pendency of this appeal, effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). While there were some substantive changes to the above-cited provisions, none of them affect the increased rating claim on appeal. As to those changes that did occur, Diagnostic Code 5201 now directly mentions that both flexion or abduction are the planes of motion to be considered. This was already a part of the existing VA caselaw as indicated, the new version expressly states the same. As for Diagnostic Code 5202, there is now an additional provision stating that a 20 percent rating is warranted for either the major or minor extremity, for impairment of the humerus with infrequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees). That provision does not affect the outcome of the present claim since a 20 percent rating already is in effect. On review of the evidence, according to the Veteran's April 2013 statement, he had undergone a January 2013 surgery for the service-connected left shoulder dislocations. Over the past three years the dislocation in the left shoulder had become progressively worse. Following recovery from this procedure and for which he had filed a claim for a temporary total rating, he was now scheduled for physical therapy at a VA Medical Center. On VA Compensation and Pension examination in February 2014, for evaluation of the left shoulder condition, the diagnosis stated at outset was, "recurrent dislocation of the shoulder, status post labral repair and Bankart procedure, stable, improved at about 70 percent." For medical history the Veteran described having a history of left shoulder dislocations. He stated that dislocation happened about three times a week. He stated there was now pain at level 5 / 10. With activity pain went to 7 / 10 and this was 2 out of 3 times per week. His right arm was the dominant upper extremity. On an evaluation, the Veteran did not report that flare-ups impacted the function of the shoulder or arm. Range of motion measurements were left shoulder flexion to 150 degrees, painful motion began at 95 degrees; abduction to 180 degrees, painful motion began at 115 degrees. There was not additional limitation of motion following repetitive use testing. There was functional loss due to less movement than normal and pain on movement. Additional findings were of left shoulder internal rotation 90 degrees, and without pain; left shoulder external rotation 70 degrees, and without pain. On the Veteran's last two visits with an orthopedic surgeon and with the examiner, he did not report any obvious flare-ups. There was not any additional limit on functional ability during flare-ups and this was since no flare-ups were reported. The examiner found no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance with repetitions as noted on the exam. Further indicated on the VA examination, there was no localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon of the left shoulder. There was guarding of the left shoulder. Muscle strength testing was left shoulder abduction 4/5 and left shoulder forward flexion 4/5. There was no ankylosis of the glenohumeral articulation (shoulder joint). On specific tests for rotator cuff conditions there was negative result to Hawkins' Impingement Test, empty can test, external rotation / infraspinatus strength test, lift-off subscapularis test. There was a history of mechanical symptoms. There was a history of recurrent dislocation of the glenohumeral joint, with infrequent episodes and guarding of movement only at shoulder level. There was positive crank apprehension and relocation test. There was not an AC joint condition or any other impairment of the clavicle or scapula. There was not tenderness on palpation of the AC joint. There was negative cross-body adduction test. Further findings were that the Veteran had not had a total shoulder joint replacement. There was an arthroscopic or other shoulder surgery. It was the history of the February 2013 arthroscopy with labral repair and capsulorrhaphy, and capsulorrhaphy done May 1991 and again May 1992. There were residual signs and/or symptoms due to arthroscopic or other shoulder surgery, although the Veteran was considered 70 percent improved with some residual pain and decreased range of motion. There were scars related to the above conditions. None of the scars were painful and/or unstable, and the total area of all related scars was not greater than 39 square cm. There were not any other pertinent physical findings, complications, conditions, signs and/or symptoms related to any of the conditions in the diagnosis section. Imaging studies did not show degenerative or traumatic arthritis. The other significant diagnostic test findings or results were that there was a labral tear at the left shoulder, and the Veteran also had a Bankhart repair. The Veteran's left shoulder condition impacted his ability to work in that it caused a mild impact for a physical job where he had to lift objects over 10 lbs. The left shoulder condition caused no impact on his ability to work in a job sitting behind a desk answering a telephone. Other than the VA examination from around this time period, the VA outpatient physical therapy records indicate as follows, a May 2013 physical therapy consult range of motion showed up as somewhat lesser in degree. There was present forward flexion of 80 degrees both with passive and active range of motion; and abduction 80 degrees passively, 70 degrees actively. The range of motion was considered to be better compared to the last visit. The Veteran did have significant muscle guarding with passive range of motion from the therapist and had better movement with self-directed range of motion exercises. In a March 2014 addendum, a VA examiner responded to additional questions from the Regional Office, first asking whether "the Veteran's recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes, and guarding of movement only at shoulder level contributed to the Veteran's limitation of left shoulder forward flexion to 150/180 degrees." The next request was for the quantity and dimensions of scars identified. The examiner stated as to the first question from the RO, that it was likely that limitation of the left shoulder flexion was due to the scapulohumeral (or glenohumeral) joint injury requiring multiple surgical procedures before and after military service. (Rationale given by the examiner, addressing the in-service etiology was reasons for this finding, and which is not discussed in greater detail as relevant to the claim for increased rating, post-service). The examiner further notated, a January 2014 orthopedic evaluation showed continued improvement with gentle stretching and strengthening. Full surgical benefit had not yet been obtained. Next as to the presence of residual scars the examiner indicated that based on records and other recent findings, there was a vertical scar anterior aspect of the shoulder joint. The scar was 10-cm long. Arthroscopic surgical repair would leave 3 puncture scars, spaced around the tip of the acromion process. In June 2018, the Board remanded the case to obtain VA examination with more recent findings as to the severity of the condition. At his May 2019 VA examination, the diagnosis stated at the outset was rotator cuff tear, glenohumeral joint instability, degenerative arthritis, residuals of left shoulder dislocation status post labral repair and Bankhart procedure. The Veteran described neurological uses and tremor to the left hand, pain to left shoulder and decreased motion and muscle strength loss to the left arm, worse symptoms over 2 years. Treatment consisted of physical therapy, exercises, medication. Flare-ups happened due to sleeping the wrong way or dropping an item he was holding. There was functional loss with reaching, lifting objects with the left hand, grasping due to tremors. Range of motion was flexion to 90 degrees, abduction to 100 degrees, external rotation 70 degrees, internal rotation 70 degrees. There was pain which contributed to functional loss reaching outward or to the side, lifting with left arm overhead, holding objects with left arm. There was no pain on passive range of motion testing. There was not objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran could not complete repetitive range of motion exercises due to pain and fatigue with assessment to the left shoulder. An additional contributing factor of disability was weakened movement, due to muscle or peripheral nerve injury. The Veteran reported loss of hand grasp to left hand due to nerve damage from left shoulder injury and that he would drop items he was holding. Muscle strength for the left shoulder was 3/5, without muscle atrophy. There was no left side ankylosis. There was left side positive Hawkins Impingement test, and empty can test. There was possible instability, dislocation or labral pathology. There was a history of recurrent dislocation with frequent episodes and guarding of movement only at shoulder level. There was positive crank apprehension and relocation test. The Veteran did not have a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition. He did not have nonunion, loss of head, or fibrous union of the humerus. There was malunion of the humerus with moderate deformity on the left side. It was further reported that the humeral head would dislocate at times with certain movement and would necessitate pushing the humerus back into place. This affected reaching abduction and flex extend range of motion. There was present otherwise a scar region to the left shoulder that was 12 by .5 cm, which was not a painful or unstable type of residual scar. There was no use of assistive devices due to the left shoulder condition. There was not degenerative or traumatic arthritis present based on x-rays of the left shoulder. A May 2019 x-ray impression had shown left shoulder unremarkable, no recent fracture, subluxation or bone destruction noted. The impact of the condition on employability was 1-2 weeks work time lost in the last 12 months, loss of sleep due to left shoulder pain and s/p surgeries interfered with the Veteran's ability to stay focused at his job due to residuals of left shoulder dislocation and treatment for same. The VA outpatient records indicated in May 2020 the Veteran obtained treatment for the left shoulder dislocated / subluxed, it was stated to have been similar to what occurred in the past, and there was treatment by a pain relief medication. It was indicated at this time also that the condition according to the Veteran led to numbness and tingling present along the left arm down to the left hand. The Veteran underwent another VA examination in July 2020. The examiner diagnosed left shoulder strain, s/p left Bankhart surgery. The reported symptoms were increased shoulder pain, tenderness and stiffness. There were reported flare-ups every day, severe, lasted a few hours, were associated with physical activities such as lifting, pulling and pushing, and also alleviated by medication and limited activity. Functional loss led to limited range of motion and difficulty with heavy lifting. Left shoulder range of motion measurements were flexion to 75 degrees, abduction to 75 degrees, external rotation 50 degrees, internal rotation 50 degrees. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing. No evidence of crepitus. With repetitive use the left shoulder had flexion to 70 degrees, abduction to 70 degrees, external rotation 45 degrees, internal rotation 45 degrees. With repeated use over time there was flexion to 65 degrees, abduction to 65 degrees, external rotation 45 degrees, internal rotation 45 degrees. The factors that caused this functional loss were pain, fatigue, lack of endurance. With flare-ups because of the same factors, range of motion was flexion to 60 degrees, abduction to 60 degrees, external rotation 45 degrees, internal rotation 45 degrees. There was objective evidence of pain on passive range of motion testing and nonweight bearing testing of the left shoulder. Muscle strength was 5/5 for forward flexion and for abduction. There was not muscle atrophy. The Veteran did not have left shoulder ankylosis or a rotator cuff condition. He did not have left shoulder instability, dislocation or labral pathology suspected. He also did not have a clavicle, scapular, acromioclavicular (AC) joint or sternoclavicular joint condition suspected. There was no condition or impairments of the humerus notated, including malunion or nonunion of the humerus, or any condition that affected range of motion. There were no other pertinent physical findings, conditions, signs or symptoms. There was present a residual scar on the anterior left shoulder, 10-cm by 1-cm, which was not painful or unstable. There was not the use of any assistive devices. There were not any other significant diagnostic test findings or results. The impact on employment status or occupational function was shoulder pain, stiffness, limited range of motion, difficulty with lifting repetitively over 15 lbs. The right shoulder was also tested and was normal in all respects. The range of motion to 60 degrees flexion or abduction on July 2020 examination, along with recurrent shoulder dislocation, does not show that his flexion or abduction is limited to midway between the side and shoulder level. Even if it did, for the minor arm this would still warrant a 20 percent rating. For a 30 percent rating to be assigned, motion would need to be limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Additionally, there is not what under Diagnostic Code 5202 would warrant any increased rating, which is for fibrous union of the humerus, as VA examiners ruled out that manifestation and the July 2020 examination did not find any issue affecting the left humerus. Also, there was no indication of left shoulder ankylosis at any point, or other possible justification for applying any other diagnostic code from the VA rating criteria. In addition to the preceding, the issue is further considered of whether a compensable rating is warranted for the left shoulder residual scar, following the February 2013 arthroscopic left shoulder procedure based on the provisions of 38 C.F.R. § 4.118 for dermatological conditions. Under 38 C.F.R. § 4.118, Diagnostic Code 7801, it is provided that scars other than on the head, face, or neck, that are deep or that cause limited motion, and cover an area of at least 6 square inches (39 square cm.) warrant a compensable evaluation. Note 1 to the criteria provides that a deep scar is one associated with underlying soft tissue damage. According to Diagnostic Code 7802, scars other than on the head, face, or neck, that are superficial and do not cause limited motion, and cover an area of at least 144 square inches (929 square cm.) warrant a compensable evaluation. A superficial scar is defined as one not associated with underlying soft tissue damage. Diagnostic Code 7804 pertains to evaluation of scars that are unstable or painful, with the assignment of a 10 percent rating for one or two such scars, 20 percent rating for three or four scars, and 30 percent rating for five or more scars. Note 1 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provides that where one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under 7804 when applicable. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The rating is to be assigned on the basis of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under another appropriate diagnostic code. In this instance the residual left shoulder scar on examination is consistently shown to be essentially asymptomatic, and the total surface area is still notably less than the requirement per Diagnostic Code 7802 for measurement of surface area of superficial scars. There is not ratable limitation of function. There is not currently competent evidence indicating probable compensable symptomatology as a result of any residual left shoulder scar that is present due to the service-connected left shoulder disorder. Accordingly, for the current claims for left shoulder orthopedic condition and residual scar, since the preponderance is unfavorable, the VA benefit-of-the-doubt doctrine is not applicable, and the claim is being denied. 3. The claim for higher rating than 50 percent for obstructive sleep apnea with asthma is denied. Respiratory disorders are evaluated under Diagnostic Codes 6600 through 6817, and 6822 through 6847. Pursuant to 38 C.F.R. § 4.96(a), ratings under these Diagnostic Codes will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). The RO has rated the Veteran's respiratory disorder at the 50 percent disability level under 38 C.F.R. § 4.97, Diagnostic Code 6847, based on sleep apnea. Under 38 C.F.R. § 4.97, Diagnostic Code 6847, a noncompensable disability rating is warranted for asymptomatic sleep apnea with documented sleep disorder breathing. A 30 percent disability rating is assigned for sleep apnea with persistent day-time hypersomnolence. A 50 percent disability rating is warranted for sleep apnea requiring the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 percent disability rating is warranted for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy. Another potentially applicable diagnostic code is that pertaining to asthma. Under Diagnostic Code 6602 for bronchial asthma, the VA rating schedule provides the following. A 10 percent evaluation is warranted for asthma for Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for asthma for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. A 60 percent rating is warranted for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating may be assigned for bronchial asthma with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. See 38 C.F.R. § 4.97. Based on the medical evidence and other findings, the criteria for increase are not met. Since the claim is a compound respiratory condition, first, per Diagnostic Code 6847 for sleep apnea to obtain the next higher 100 percent rating there would need to be sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy. See 38 C.F.R. § 4.97. Also applicable, the VA rating criteria based on asthma. Under Diagnostic Code 6602, a 60 percent rating is warranted for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. Based on the medical evidence, according to the January 2014 VA Compensation and Pension examination for the respiratory system, the Veteran had asthma and used for treatment purposes inhalational bronchodilator therapy on a daily basis. There was no use of oral bronchodilators, antibiotics, or ever using any outpatient oxygen therapy for the condition. There were not any asthma attacks with episodes of respiratory failure in the previous 12 months. The Veteran had not had any physician visits for required care of exacerbations. There were no other pertinent physical findings, complications, signs, or symptoms from the condition. Results of a chest x-ray showed fibrotic scarring, left lung base posteriorly, perhaps postinflammatory, although no prior studies for comparison. The remainder of the lungs were unremarkable with no infiltrate. Pulmonary function test (PFT) results were as follows from the December 2013 test done, showing that pre-bronchodilator there was FVC 76 percent predicted, FEV-1 72 percent predicted, FEV-1/FVC 95 percent predicted; and post-bronchodilator there was FVC 74 percent predicted, FEV-1 71 percent predicted, FEV-1/FVC 95 percent predicted. There was no DLCO measurement taken. According to the examiner's report the DLCO was not considered valid for this particular case. It was stated further, there was present fibrotic scarring in the left lung base posteriorly. This was the major contributor or responsible factor for the limitation of the Veteran's pulmonary function. It was reported that the Veteran's pulmonary function had a flow volume loop that was consistent with mixed obstructive / restrictive pattern. When post bronchodilator portion of the PFT was performed, there was no improvement or reversal of the Veteran's limitations. As to any impact on working capacity, the Veteran's respiratory condition caused a mild impact on his ability to work in a physical job where he had to run, walk, or lift heavy objects. The respiratory condition caused no impact on his ability to work in a job sitting behind a desk working on a computer. It was further notated that the findings during the exam and recent pulmonary function tests were consistent with a stable asthmatic condition and left lung base fibrosis, and the PFT results did not improve with bronchodilator. According to the VA outpatient treatment records, on an April 2016 pulmonary consult, the Veteran had asthma that was well-controlled on medication therapy specifically by taking Symbicort daily. There was present some dyspnea with asthma during allergies. On examination again May 2019, the Veteran indicated that he was on Advair for symptom management but that was discontinued and he was now on Albuterol as needed for rescue breathing. He did not need oral or parenteral corticosteroid medications. He did use inhalational bronchodilator therapy. He did not use antibiotics or outpatient oxygen therapy. He had not had recent asthma attacks or physician visits for required care of exacerbations. There was not a recent x-ray or PFT done. There were no other significant diagnostic test findings or results. On VA examination March 2020 for sleep apnea, the diagnosis at outset was obstructive sleep apnea. The Veteran used a CPAP. There was not required a breathing assistance device. There was persistent daytime hypersomnolence. There were no other significant diagnostic test findings or results. Sleep apnea affected the ability to work because of daytime somnolence with fatigue and difficulty focusing while performing tasks. On examination again July 2020, the symptoms of sleep apnea at that time were snoring, restless sleep and excessive daytime sleepiness. The symptoms improved with CPAP use. Treatment was CPAP nightly. There were no other symptoms or findings, such as persistent daytime hypersomnolence, carbon dioxide retention, chronic respiratory failure, cor pulmonale, tracheostomy. There were no other significant diagnostic test findings or results. The condition did not impact the Veteran's ability to work. According to the above, the requirements are not met for increased rating beyond 50 percent. The Veteran regularly uses a CPAP for treatment of sleep apnea. However, he does not have chronic respiratory failure with carbon dioxide retention or cor pulmonale and he does not have a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. The Veteran's PFT results and other clinical findings do not support a 60 percent or higher rating for asthma. Significantly as of April 2016 his asthma was noted to be well-controlled on medication, and so had not become any worse than before. The sleep apnea rating criteria applies here as the primary ratable disorder for consideration under the VA rating schedule, according to section 4.96. Accordingly, the preponderance of the evidence weighs against an increase, and the claim is being denied. REASONS FOR REMAND The claim for service connection for a low back disorder is remanded. Following the January 2014 VA examination, the examiner offered a February 2014 medical opinion weighing against claim on etiology, yet not discussing records of in-service back problem incurred in 1994, relevant to the condition and any further opinion on etiology. Another VA examination is warranted. The matter is REMANDED for the following action: 1. Obtain the Veteran's most recent VA outpatient records and associate them with the claims file. 2. Schedule the Veteran for a VA orthopedic examination to determine the etiology of a low back disorder. The claims folder must be made available for the examiner to review. It is requested that the examiner indicate the diagnosis of a current low back condition. Then opine as to whether the diagnosed condition at least as likely as not (50 percent or greater probability) was incurred in or is otherwise etiologically related to the Veteran's service, based on both documentation from Service Treatment Records (STRs) and the Veteran's own assertions, including the significance of a 1994 motor vehicle accident and any back condition that may have developed as a result of that incident during service. The examiner should include a complete rationale for any opinion expressed. If the examiner cannot respond to the inquiry posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. 3. Review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then readjudicate the claim. If the claim remains denied, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lyons, 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.