Citation Nr: 21026883 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-22 463 DATE: May 4, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected right ankle strain is denied. Entitlement to service connection for a back disorder is denied. Entitlement to service connection for a right shoulder disorder, shoulder strain, bicipital tendonitis, and glenohumeral joint dislocation, is granted. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. FINDINGS OF FACT 1. Right ankle strain has not been manifested by or approximated more than moderate ankle limitation of motion; neither marked limitation of motion nor ankylosis was demonstrated. 2. A back disorder, to include the diagnosed thoracic strain, did not manifest in service nor did arthritis of the spine manifest within one year of separation; a back disorder is not otherwise related to service. 3. The Veteran's right shoulder disorder, shoulder strain, bicipital tendonitis, and glenohumeral joint dislocation, is related to wartime service. 4. A right knee disorder, to include the diagnosed knee strain and patellofemoral pain syndrome, did not manifest in service nor did arthritis of the knee manifest within one year of separation; a right knee disorder is not otherwise related to service. 5. A left knee disorder, to include the diagnosed knee strain and patellofemoral pain syndrome, did not manifest in service nor did arthritis of the knee manifest within one year of separation; a left knee disorder is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right ankle strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for service connection for a back disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The Veteran's right shoulder disorder, shoulder strain, bicipital tendonitis, and glenohumeral joint dislocation, was incurred in wartime service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2007 to July 2011. He appeals a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). He submitted a RAMP opt-in election request in May 2018 for the issues on appeal; however, the appeal had already been activated at the Board and was therefore no longer eligible for the RAMP program. The Board remanded the claims to the agency of original jurisdiction (AOJ) in November 2018 for VA examinations, as it found the then-current examination record inadequate. The appeal has been returned to the Board. Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 1. An initial rating in excess of 10 percent for service-connected right ankle strain is denied. The Veteran seeks a higher rating for the right ankle disability, rated 10 percent disabling under DC 5271 for limited motion of the ankle under the Schedule of Ratings musculoskeletal system with consideration of painful motion. 38 C.F.R. §§ 4.71a, 4.59. The question for the Board is whether he meets or approximates the criteria for a higher rating for the right ankle. The Board finds that the preponderance of the evidence is against so finding, for the following reasons. A review of the procedural history of this claim reflects that the examination record has been adjudged inadequate for rating purposes in the prior Board remand. The prior examination was found to be not compliant with requirements of 38 C.F.R. § 4.59, or related cases of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), with regard to joint testing and the assessment of functional loss during flare-ups. A VA examination of the ankle ordered by the Board in November 2018 was conducted in October 2019 by a VA physician. This examination was based on a review of the record and is considered wholly consistent with the treatment record as to degree of disability throughout the rating period. It is fully compliant with the aforementioned controlling law. Under DC 5271, a 20 percent evaluation is warranted for marked limitation of motion of the ankle. Under DC 5270, ankylosis of the ankle in plantar flexion, less than 30 degrees, also warrants a 20 percent rating. A 30 percent evaluation is warranted for ankylosis in plantar flexion, between 30 and 40, or in dorsiflexion, between 0 and 10 degrees. 38 C.F.R. § 4.71a. VA right ankle examination in October 2019 reflects that the diagnosis is right lateral collateral ligament sprain in 2019. He reported the injury was due to a slip and fall down a ladder well in 2008. He had a swollen ankle and pain in lower calf muscle. September 2019 MRI of the ankle was reported. He reported it was hard to walk and he had pain when sitting and standing up. He reported he limps, and it worsens throughout the day. He does stretches and has used prescribed cream, and he also ices his feet. He noted difficulty walking, running and driving. There is no ankylosis of the ankle, subtalar or tarsal joint nor were there other conditions of the ankle other than the sprain. Flare-ups of the right ankle occur all day and are described as severe. The examination was noted to actually be conducted during a flare-up. They are precipitated by walking, running, and going up and down ladders They are alleviated by Tylenol, ibuprofen and an ankle brace. He described his functional loss or functional impairment as no push off, difficulty with inclines and lateral movement, limited running, walking and carrying a load, with a limit of 20 pounds, difficulty with stairs and ladders due to pain and stiffness and difficulty with driving, specifically with pedals. Range of motion of the right ankle was dorsiflexion 0 to 5 out of 20 degrees and plantar flexion 0 to 30 out of 45 degrees. Pain was noted with plantar and dorsiflexion to cause functional loss but there was no additional functional loss after three repetitions. There was evidence of pain on weight-bearing but no objective evidence of mild localized tenderness or pain on palpation of the joint or associated soft tissue in the medial aspect. There was no crepitus. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength was normal and there was no atrophy. Ankle instability or dislocation was suspected. The Veteran had not had "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or a talectomy (astragalectomy). X-rays did not show arthritis of the right ankle. Functional impact from the right ankle on the ability to perform occupational tasks was that described above by the Veteran. There were no other pertinent physical findings, complications, conditions, signs or symptoms. There was no evidence of pain on passive range of motion or non-weight bearing in either ankle. The VA treatment records dated during the appeal period do not show significant treatment for the right ankle but note it is described as moderately painful. We note that the September 2019 MRI of the ankle demonstrated no evidence of osteonecrosis or fracture. The articular cartilage, ligaments and tendons about the ankle were maintained. The Board finds that the October 2019 VA ankle examination report and treatment records show that the Veteran's right ankle disability fits squarely within the criteria for a 10 percent rating under DC 5271. The Veteran's description of painflare-up and limited motion is sufficient to assess the condition as painful motion under section 4.59, but the degree of limited motion, as assessed by the VA examiner, does not support a higher rating. The examiner specifically found no ankylosis. The Board finds the examiner's assessment to be highly probative as to the degree of disability. It is consistent with the treatment record and was made based in part on the Veteran's descriptions of symptoms and his current flare-up. A 10 percent rating adequately represents any functional impairment attributable to the disability. See 38 C.F.R. §§ 4.41, 4.10. To the extent that the Veteran urges that the criteria for a higher rating are met or approximated, his assertions are outweighed by the treatment and examination record which do not support this assertion, as discussed above. His complaints at the examination are noted to have been recorded during a flare-up. The criteria for a higher rating are not met or approximated at any time throughout the appeal period when all the evidence is considered. See 38 C.F.R. § 4.7. There is no reasonable doubt regarding the degree of disability. See 38 C.F.R. § 4.3. Parenthetically, we note that there have been changes to the Schedule of Ratings for the Musculoskeletal System effective February 7, 2021, but these changes do not result in any higher rating for the right ankle disability. Rather, the changes, in relevant part, clarify that limitation of motion of the ankle under DC 5271 is considered moderate when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and marked when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The manifestations present and discussed in the Veteran's case do not support higher or additional ratings under any criteria. There remains no basis for an increased rating as established by the most probative evidence, the 2019 VA examination. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime). In general, to establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Entitlement to service connection for a back disorder is denied. The question for the Board is whether the Veteran has a current back disorder that manifested in service or within any applicable presumptive period, or whether the condition is otherwise related to service. The Veteran ascribes his back pain to a June 2010 incident onboard ship. He reports that while on deployment and underway, there was replenishment at sea. He lifted a heavy pelican hook over a messenger line connected to rigging. His upper back strained, and was very painful; he lost his breath for several minutes. He reports he was rushed to medical and was given ibuprofen and a massage of affected area. A September 2020 statement from a fellow service member indicates the event was witnessed. STRs show that, in June 2011, at the time of separation, he reported a personal medical history of painful shoulder but denied recurrent back pain and knee trouble. He was found fit for separation. Post-service VA treatment records document VA X-ray in December 2015 showing no significant degenerative disc disease of the thoracic spine. X-ray was undertaken because at that time the Veteran complained of chronic back pain in the medial part of the upper back, reported as present since 2010. VA examination in July 2014 and opinion in December 2014 had found scoliosis, less likely than not incurred in or caused by the claimed in-service injury or event on the basis that there was currently no available record indicating that the Veteran had back complaints while in service. There is current low back disability demonstrated in an October 2019 VA examination, thoracic strain. However, arthritis is not present according to the examiner and the Veteran's back disorder does not constitute a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). Also, the VA examiner explained that there was no scoliosis present, nor was there any in service. The VA examination in October 2019 yielded the aforementioned diagnosis of thoracic strain. The examiner found that the Veteran's current back condition is less likely than not (less than 50% probability) incurred in or caused by service. The rationale was as follows: [N]ormal enlistment and no back condition on separation. [C]laimant history of fall with residual neck pain however in service complaint supported ankle injury only. Claimant history is that there is an error in filing - back condition misrepresented as scoliosis with no medical history support for that diagnosis and current x-ray is normal. [C]laimant denies any current thoracic condition related to any in service injury and there is no medical record support for any thoracic condition Therefore the unsubstantiated current back condition of scoliosis or any other thoracic condition is less likely than not related to military service. The preponderance of the evidence is also against finding that a nexus exists between the Veteran's current back disability and service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, the weight of the evidence is against finding that the current thoracic strain, first noted in treatment years after service, is related to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. There was no medically chronic back disorder or diagnosis in service, rather, as the examiner observed, there was only the aforementioned report of back pain. While we note the Veteran's recitation of the events onboard ship, and the concurring September 2020 buddy statement, are informative as to the circumstances of the accident, we find the 2019 opinion of the VA examiner, which was made based upon a thorough review of the claims folder and is well-supported with references to the record, to be more probative as to the issue of whether any current back disability is related to service, to include the reported incident. The Board has carefully considered the Veteran's assertions that the current disorder is due to the accident onboard ship in 2010. The Veteran's assertions as to a relationship pale in comparison to the opinion of a trained medical professional. The VA examiner considered the Veteran's theory as to a relationship and provided sound reasons for ultimately rejecting it. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The opinion is the most probative evidence as to this issue. The preponderance of the evidence is against the claim and the benefit sought on appeal is denied. 3. Entitlement to service connection for a right shoulder disorder is granted. The question for the Board is whether the Veteran has a current right shoulder disorder that manifested in service or within any applicable presumptive period, or whether the condition is otherwise related to service. The Veteran contends he injured his right shoulder in service. He asserts that the STRs incorrectly identify the shoulder involved. In August 2009, there was treatment for possible left shoulder dislocation, but prior right shoulder pain/trauma, playing football was noted. It was noted that he was struck by another player, with left shoulder sprain (biceps tendon strain) resulting. In June 2011, at the time of separation, he reported during examination a personal medical history of painful shoulder. The clinician noted that the Veteran fell on his shoulder and dislocated it. He was found fit for separation. Post-service VA treatment records document VA X-ray in December 2015 showing unremarkable right shoulder. The X-ray was precipitated by the report in 2015 of a 2009 shoulder injury in service and dislocations that he was able to fix himself since that time. The assessment was right shoulder pain, chronic. There is current shoulder disability demonstrated in an October 2019 VA examination, shoulder strain, glenohumeral joint dislocation and bicipital tendonitis, right. However, arthritis is not present according to the examiner and the Veteran's shoulder disorder does not constitute a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). Service connection for a right shoulder disorder may still be granted on a direct basis. We conclude that the evidence is at least in equipoise as to the right shoulder disorder being related to service. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, service treatment records reflect the aforementioned ambiguity as to which shoulder was affected. The VA examination in October 2019 yielded the aforementioned diagnosis of shoulder disorder. They found that the Veteran's current shoulder condition is as likely as not (50% or greater probability) incurred in or caused by service. The rationale was as follows: [N]ormal enlistment for shoulder. Claimant history of right shoulder injury in service with dislocation and clinic visits. [O]n current exam validation of claimant's story with unguarded painless full range of motion on left shoulder and right shoulder symptoms and decreased ROM consistent with injury. Therefore, the current right shoulder condition is at least as likely as not cause by in service injury and incurred in service. The opinion rendered by the VA doctor in October 2019 is based on a review of the expanded record, addresses the critical issue of which shoulder was likely involved in service, and contains adequate rationale. It is the most probative evidence of record. Service connection for the right shoulder disorder is thus warranted. See 38 C.F.R. § 3.303(d). 4. Entitlement to service connection for a right knee disorder is denied. 5. Entitlement to service connection for a left knee disorder is denied. The question for the Board is whether the Veteran has a current knee disorder that manifested in service or within any applicable presumptive period, or whether the condition is otherwise related to service. The Veteran asserted in May 2016 that his current bilateral knee disorder was caused by high impact stress on his knees as result of his naval duties. In this regard, he contends that due to small boat operations traveling at high speeds, crashing into the rough and choppy seas and the bottom of the boat shooting back up into his knees created high impact stress. He also stated that he was required to complete double the physical fitness tests as a surface rescue swimmer. There is current knee disorder of bilateral knee strain and patellofemoral pain syndrome, as reflected in the October 2019 VA examination. He told the examiner that the knee problems began due to many small boat operations for long distances for personnel recovery and training. High impact stress, boat travelling at very high speeds crashing into rough choppy waters caused the knee problems. His knees felt swollen and he has sharp pain in middle of kneecap when walking, up and down hills and stairs. He uses ice nightly, along with Tylenol and ibuprofen. This has caused difficulty doing a job on submarines and aircraft carriers, to include with going up and down ladder wells etc. In June 2011, at the time of separation, he reported at his separation examination a personal medical history in which he denied knee trouble. He was found fit for separation. Post-service VA treatment records document complaints in December 2015 of bilateral knee pain and stiffness usually at the end of the day. He denied past treatment except for Motrin. VA examination in July 2014 and opinion in December 2014 found no current bilateral knee disorder related to service. The Veteran had reported in June 2014 that the knee condition present, bilateral knee strain, was related to a fall from a ladder in 2008. It was noted that there were no available records indicating knee complaints in service. While there is current bilateral knee disability as demonstrated in an October 2019 VA examination, arthritis is not present according to the examiner and the Veteran's knee disorder does not constitute a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). The VA examination in October 2019 yielded the aforementioned diagnosis for the bilateral knees. They found that the Veteran's current knee disorder is less likely than not (less than 50% probability) incurred in or caused by service. The rationale was as follows: [N]ormal enlistment and normal separation related to knee condition. [C]urrent exam has normal x-rays. No post service evaluations until 4 years post service for knee pain and no history referring to in-service overuse as cause- MOS was consistent with significant knee stressors however no proximate to discharge evaluations treatment or complaints. Therefore, the current knee condition is less likely than not service incurred. The preponderance of the evidence is against finding that a nexus exists between the Veteran's current knee disorders and service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, the weight of the evidence is against finding that the current knee problems, first noted in treatment years after service, are related to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. There was no medically chronic knee disorder or diagnosis in service, rather, as the examiner observed, there was only the complaints dating from a few years after service, the and the post-service report of in-service stress on the knees. While we note the Veteran's report of stress on the knees due to his duties, we find the 2019 opinion of the VA examiner, which was made based upon a thorough review of the claims folder and is well-supported with references to the record, to be more probative as to the issue of whether any current knee disability is due to service. The Board has carefully considered the Veteran's assertions that the current disorder is due to the rigors of his shipboard service and swimmer duties. Unfortunately, the Veteran's assertion as to a relationship pale in comparison to the opinion of a trained medical professional. The VA examiner considered the Veteran's theory as to a relationship and provided sound reasons for ultimately rejecting it. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The actual fact that he had rigorous duties was not disputed. The opinion is adopted. To the extent that he asserts that he has had manifestations since service, we note that the service records are silent as to knee manifestations (but not other conditions) and he denied pertinent pathology at separation. The preponderance of the evidence is against the claim and there is no doubt to be resolved. The benefit sought on appeal is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL 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.