Citation Nr: 21027542 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-35 543 DATE: May 6, 2021 ORDER Entitlement to service connection for a lung disability, to include asthma and pulmonary hypertension, is denied. Entitlement to service connection for a right-hand disability is denied. Entitlement to a rating in excess of 20 percent for a right shoulder disability is denied. FINDINGS OF FACT 1. The record does not show he was provided an examination on his entry onto active duty, he is presumed to have been sound at the time of entrance onto active duty, and the preponderance of the evidence shows that a chronic lung disability did not have its onset during active service or for many years thereafter and is not otherwise shown to be related to any disease, injury, or incident in service, including asbestos exposure during service. 2. The preponderance of the evidence shows that the Veteran's right hand disability did not have onset in service or within one year of service discharge, it is not related to any aspect of service, and it is not caused or aggravated by a service-connected disability. 3. For the entire period covered by this claim, the preponderance of the evidence shows that the Veteran's right shoulder disability is not manifested by at least limitation of arm motion to 25 degrees or less from the side or ankylosis of the shoulder even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor impairment of the humerus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lung disability have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. § 3.306, 3.303. 2. The criteria for service connection for a right hand disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for a rating higher than 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5202, 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Navy from September 1974 to September 1978 and in the United States Air Force from January 1991 to April 1991. In March 2020 the Board, among other things, remanded the newly reopened claim of service connection for a right hand disability, the claim for a lung disability, and the claim for an increased rating for a right shoulder disability for additional development. Post-Remand Compliance Initially, the Board finds that the post-remand development substantially complied with the Remands. The Board has reached this conclusion because it finds that the post-Remand VA examinations in October 2020 provide all needed information to rate the Veteran's service connected disabilities under all applicable rating criteria and adjudicate the service connection claims. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board has also reached this conclusion because it finds that while the appeal was in Remand status the RO obtained and associated with the record all identified and available medical records. See 38 U.S.C. § 5103A(b). Therefore, the Board finds that further delay by remanding the appeal to undertake additional development is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here the service records may be incomplete; thus, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But, this does not lower threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the absence of some of the service treatment records in a fire does not create an adverse-presumption rule. Cromer v. Nicholson, 19 Vet. App. 215 (2005). 1. Entitlement to service connection for a lung disability The Veteran seeks service connection for a lung disability as due to service. He asserts that he developed his lung disorder due to exposure to asbestos and/or secondhand tobacco smoke during service. Initially, the Board notes that a veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. at 225, 227 (1991). The available service treatment records reflect no evidence of a lung disability. Examination reports in July 1979, May 1989, September 1985, and May 1993, show that the Veteran's lungs and chest were clinically evaluated as normal, and he denied a medical history of chronic cough, asthma, or shortness of breath. Additionally, a VA examiner in October 2020 opined that there was no evidence of a lung condition that pre-existed service. Moreover, the Board finds that because the Veteran's full service treatment records, including his enlistment examinations, could not be located, the Veteran is presumed to have been sound at the time of entrance. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994)) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected"). As such, the Veteran is legally presumed to have been sound on entry as to his lungs. Given the above examinations, which are not contradicted by any other medical evidence of record, the Board also finds that the burden on VA to rebut the presumption of soundness has not been met because the evidence does not show by clear and unmistakable evidence that the disability preexisted service; therefore, the Veteran is presumed to have been sound at service entrance. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Because the presumption of soundness is not rebutted, this case converts to one for direct service connection. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As noted, the service treatment records do not reflect, nor is there any other evidence contemporaneous with service that shows treatment for, or diagnosis of, a chronic lung disability. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his current lung disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). More importantly, the record does not show that the Veteran had a continued problem with a lung disability in and since service or a post-service lung disability had its onset during service. In this regard, after service the records do not reflect a diagnosis of, and treatment for, a pulmonary disorder, to include asthma, pulmonary hypertension, and most recently chronic obstructive pulmonary disease (COPD) until 2004. In 2015, the Veteran provided a history of asbestos exposure aboard ships during service. A clinician in 2016, noted a history of asbestos exposure, as well as exposure to secondhand smoke in service, as well as at home and occupationally. He was also exposed to paint fumes at work. There was also a history of lung damage from high flow oxygen due to being born prematurely. Based on the above, the Board must conclude both that a chronic lung disability did not have its onset during service and has not been continuous since that time. See Owens, supra. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the available service treatment records and post-service treatment records, which fail to document any related complaints until approximately a decade after discharge from service. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a lung disability in and since service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). Turning to the question of a nexus to either service for the post-service lung disability, a VA examiner in August 2017, noted diagnoses of asthma and pulmonary hypertension. The examiner noted a history of treatment for asthma after 2004. It was noted that records in 2011 documented pulmonary hypertension with risk factors of high flow O2 as a premature infant and exposure to cigarette smoke. No mention of asbestos exposure was recorded. He had an ECHO at that time that documenting bicuspid valve. Following a review of the claims file and an examination of the Veteran, the examiner opined that the claimed lung disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Specifically, his pulmonary hypertension was less likely than not associated with his military career and possible asbestos exposure. The examiner attributed the Veteran's pulmonary hypertension to being born prematurely and treated with high flow 02. The examiner cited to the medical studies that did not associate asbestos exposure with ventilator issues, such as ventilatory dysfunction. In any event, the examiner indicated that a review of the Veteran's service records failed to support a finding that he was exposed to asbestos while in the military service. On VA examination in October 2020, the examiner noted diagnoses of asthma and COPD diagnosed in October 2020. The Veteran reported a history of exposure to secondhand smoke from his father all his life while at home. He also related a history of exposure to secondhand smoke and asbestos during service. The examiner also noted a history of lung damage from high-flow oxygen as premature infant, however, there was no evidence of any lung damage, or symptoms of a lung condition while in military service due to lung damage for being born prematurely. The medical literature supported a finding of older adults developing pulmonary hypertension and asthma due to the high flow oxygen as a premature infant. The Veteran, however, did not develop these conditions during service or for many years thereafter. While tobacco smoke was a risk factor for pulmonary hypertension, his claimed in service exposure was limited to three years out of his lifetime to tobacco smoke exposure outside of service from birth and at the workplace. The examiner indicated that the medical literature supported a finding that the oxygen treatment he received as an infant caused pulmonary hypertension and asthma. Therefore, while he did seem to have an underlying lung condition from his oxygen treatment at birth, it did not become symptomatic until long after he separated from the military. Additionally, the examiner noted that given that the major spirometric manifestation of a preterm birth and bronchopulmonary dysplasia in adults appeared to be airflow obstruction, the differential diagnosis was primarily that of asthma and COPD, or asthma COPD overlap syndrome. Ascertaining where airflow obstruction was likely due to preterm birth was important given the potential for misdiagnosis and therefore undertreatment and overtreatment. A diagnosis of COPD generally considered as fixed or partially reversible airflow obstruction following sufficient exposure to noxious particles or gases, particularly from cigarette smoke, may need to be reconsidered in the young adult with little smoking history but fixed airflow obstruction. Likewise, although asthma, at least in its mildest forms, should typically be associated with a significant degree of bronchodilator reversibility, it may not be the correct diagnosis in a preterm-born young adult with exertional wheeze and dyspnea. Characterizing airways disease in adult survivors of preterm birth in terms of extent and nature of airflow obstruction, pattern of any inflammation and presence of airway reactivity was key. The examiner further noted that severe dyspnea and leg discomfort associated may lead to reduced exercise tolerance in adults born very or extremely preterm, whether or not their birth was complicated by bronchopulmonary dysplasia and despite differences in expiratory flow limitation. Thus, adults born very or extremely preterm experienced respiratory limitations to exercise similar to patients with COPD. Chronic respiratory diseases were a common complication of preterm birth, particularly among very immature infants or those suffering from bronchopulmonary dysplasia. Some preterm infants, particularly those with bronchopulmonary dysplasia, were very likely to develop COPD or similar disease later in life. Therefore, even assuming, without conceding, asbestos and/or tobacco smoke exposure in service, the competent medical evidence of record does not link his pulmonary disability to asbestos and/or secondhand smoke exposure in service. In fact, there is no medical opinion of record linking his pulmonary disability to service, including asbestos and/or secondhand smoke exposure therein. The Board finds the VA examiner's opinion to be highly probative. The opinion was based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinion is consistent with other evidence of record. Moreover, the examiner provided adequate rationale for the opinion. Accordingly, the VA examiner's opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). Significantly, there is no competent medical opinion of record linking the current lung disability to service. See Colvin, supra. The Veteran has asserted that his current pulmonary disability is the result of asbestos and/or secondhand smoke exposure in service. While the Veteran is not barred from presenting evidence of such a nexus, he has not done so in the present case; that is, he has presented no competent evidence indicating an etiological nexus between any incident of service, to include asbestos and/or secondhand smoke exposure, and his current lung disorder. While the medical evidence confirms a current diagnosis of a lung disability, this evidence does not suggest either onset during or any nexus with service, to include the Veteran's alleged asbestos and/or secondhand smoke exposure. On the contrary, the competent medical evidence weighs against the claim. Lay testimony on the etiology of his current lung disorder is not competent in the present case, because the Veteran is not competent to state that his current lung condition resulted from in-service asbestos and/or secondhand smoke exposure during his three years in service. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). An opinion of etiology would require knowledge of the complexities of pulmonary disorders, its various causes, clinical testing, and the results of exposure to various chemicals, knowledge that the Veteran is not shown to possess. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Therefore, the Board finds that the most probative evidence of record shows that the Veteran's post-service lung disability is not due to his military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a lung disability, including as due to asbestos and secondhand smoke exposure, and that the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for a right-hand disability The Veteran contends that he has a right-hand disability secondary to his service-connected right shoulder disability. The service treatment records fail to document a chronic right hand disability in service. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his current right-hand disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. Likewise, the record does not show the Veteran being diagnosed with arthritis in the right-hand in the first post-service year. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for a right-hand disability. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. More importantly, the record does not show that the Veteran had a continued problem with a right-hand disability in and since service or a post-service right-hand disability had its onset during service. In this regard, after service the records do not reflect a diagnosis of, and treatment for, a right-hand disability until 2003; more than a decade after his last period of service. Specifically, after service, in 2003, the Veteran reported pain and numbness in his right hand predominantly in the first four fingers. He also did have median nerve impairment based on the nerve conduction study. Treatment records in 2004 noted right hand carpal tunnel syndrome (CTS) with a history of release, as well as severe arthritis of the right hand and wrist. A June 2014 treatment note recorded the Veteran's report of numbness involving the palm of his right hand. A VA orthopedic surgery consult in March 2015, noted a history of degenerative changes of bilateral hands. In summary, the Veteran was not shown to have CTS and/or arthritis affecting the right hand and wrist in service or until many years following discharge from service. The Board finds that the post-service medical records provide highly probative evidence against this claim. See Owens, supra. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan, supra. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson, supra. To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the available service treatment records and post-service treatment records, which fail to document any related complaints until many years after discharge from service. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a right-hand disability in and since service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). On the question of a nexus between the current right hand disability and service, the Board finds that the record does not show that it is due to his military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the Board notes VA did not obtain an etiology opinion as to this question. However, given the above record which is negative for complaints, diagnoses, or treatment for any of the disorder in service and for many years after service as well as the Veteran's claims that it is due to a service connected disability and not military service, the Board finds that the criteria to obtain an opinion have not been met. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). The Board also finds that the Veteran is competent to provide the missing nexus opinion, even if he made such a claim, because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused the current right-hand disability). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's post-service right-hand disability is not due to his military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). On the question of a nexus between the current right hand disability and a service-connected disability, the evidence weighs against the claim. See Owens, supra. On VA examination in October 2020, the examiner noted diagnoses of right hand thumb carpometacarpal joint osteoarthritis with limitation of motion in the joints of the fingers. There was no ankylosis. The examiner opined that the Veteran's right hand condition was not caused or aggravated by your service-connected right shoulder arthritis. The examiner explained that after his separation from service the Veteran worked as a painter spraying parts for planes for a period of several years. It was noted that the Veteran had a workman's compensation injury to his left hand with several surgeries. Reportedly, he would spray the parts using his left hand and when it became tired, he would switch to his right hand until it also became fatigued, then he would switch back to his left. The examiner noted that while the Veteran had arthritis of the right shoulder and hand, the medical literature did not support arthritis in one joint causing arthritis in another joint. Similarly, while he had been diagnosed with CTS in his right wrist, shoulder surgery and shoulder arthritis had not been shown to be a risk factor for CTS. In sum, because having arthritis in one joint did not cause arthritis in another joint and a shoulder injury would not cause CTS, there was no reason for his right hand to be caused or aggravated by his right shoulder condition. Therefore, based on records review, history and examination of the Veteran, the examiner opined that the Veteran's right hand disability was less likely as not caused or aggravated by his right shoulder degenerative arthritis and previous surgeries. The Board finds the October 2020 VA examiner's opinion to be highly probative. The opinion was based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinion is internally consistent and consistent with other evidence of record. Moreover, the examiner provided adequate rationale for the opinion. Accordingly, the VA examiner's opinion is entitled to great probative weight. See Nieves-Rodriguez, supra; Guerrieri, supra. Significantly, there is no competent medical opinion of record linking the right hand disorder with service or a service-connected disability. See Colvin, supra. The Board has considered the statements from the Veteran. He is certainly competent to report as to the observable symptoms he experiences and their history, but the ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Layno v. Brown, 6 Vet. App. 1994); Buchanan, supra; Jandreau, supra. The Board finds that the specific, reasoned opinion of the VA examiner of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinions, and the examiner provided adequate rationale for the conclusions reached. See Black, supra. As noted, there is no competent medical evidence that supports the claim. While it is clear that the Veteran has problems, the key issue is what has caused those problems. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's post-service right-hand disability is not secondary to a service-connected disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a right-hand disability on a direct and secondary bases and that the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. The Rating Claim Entitlement to a rating in excess of 20 percent for service-connected right shoulder disability Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. The Veteran contends that he is entitled to a higher rating for his right shoulder disability, and he has continuously experienced symptoms that include limited range of motion, pain with range of motion, flare-ups, and popping. Of note, the Veteran's right upper extremity is his nondominant extremity. It should be noted that, during the course of this appeal, the schedular criteria for evaluating left shoulder disability have been amended. Specifically, the criteria pertaining to limitation of motion of the arm under 38 C.F.R. § 4.71a, Diagnostic Code 5201, were amended effective February 7, 2021. See 85 Fed. Reg. 76, 453 (November 30, 2020). Initially, the Board finds that the Veteran will not be prejudiced by adjudicating this claim without first providing him notice of the amendment. The Board has reached this conclusion because it finds that the amendment is not substantive; instead, it merely quantifies the definition of "at shoulder level" and "midway between the side and shoulder level" which criteria VA has always applied when rating the shoulder under Diagnostic Code 5201. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Next, the Board notes that where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to the enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's shoulder disability under both the old and new revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. The Veteran's right shoulder disability has been evaluated 20 percent disabling, pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Coded 5003-5202. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the disability rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5003 pertains to degenerative arthritis. Diagnostic Code 5202 pertains to impairment of the humerus. 38 C.F.R. § 4.114, Diagnostic Codes 5003, 5202. The Board also notes that degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5201, etc.). 38 C.F.R. § 4.71a , Diagnostic Code 5003. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under the pre-amended criteria, Diagnostic Code 5201 set forth that a 20 percent evaluation is warranted with motion of the arm limited to either at shoulder level or midway between the side and shoulder level. A maximum 30 percent evaluation is warranted where motion of the arm is limited to 25 degrees or less from the side. As of February 7, 2021, under the amended criteria, the Diagnostic Code 5201 set forth that a 20 percent rating is warranted for with motion of the arm limited to either shoulder level (flexion and/or abduction limited to 90 degrees) or midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees). A maximum 30 percent evaluation is warranted where motion of the arm is limited to 25 degrees or less from the side. Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Higher evaluations are warranted based upon ankylosis of the scapulohumeral articulation, in which the scapula and humerus move as one piece (Diagnostic Code 5200), and impairment of the humerus, including fibrous union, nonunion, or loss of head of the humerus (Diagnostic Code 5202). 38 C.F.R. § 4.71a. On VA examination in June 2015, the examiner noted degenerative arthritis status post Bankart repair. The Veteran complained of clicking and popping of the joint out of place, along with general weakness. There was pain localized to the lateral deltoid, described as sharp and lasting seconds before subsiding. It also felt like it would "catch." He denied flare-ups. Right shoulder range of motion was normal with no pain noted on examination. There was no additional functional loss or additional loss of motion with repetitive movement. There was right trapezius muscle trigger point, and tenderness to the posterior deltoid. There was no pain on weight bearing or crepitus. Strength was 5/5. There were infrequent episodes of recurrent dislocation/ subluxation. Crank apprehension and relocation test was positive. The examiner noted acromioclavicular and glenohumeral joint osteoarthritis. There was no impairment of the humerus. There was a right anterior shoulder scar measuring 13cm in length by 0.1cm in with. The scar was not painful or unstable. VA treatment records in 2016, noted continued complaints of right shoulder pain with x-ray findings of moderate osteoarthritis and a history of extensive physical therapy in the past. It was noted that the right shoulder condition was stable. On VA examination in January 2017, the examiner noted a diagnosis of right shoulder degenerative arthritis, with a history of Bankart repair in 1978 and again in 2013. The condition improved with surgery in 2013, but the Veteran still reported pain. He complained of persistent pain in the right shoulder and joint/muscle popping. The Veteran was treated with Tylenol and physical therapy. He endorsed flare-ups with certain activities like shoveling snow resulting in decreased range of motion that affected overhead lifting. Examination revealed flexion to 140 degrees, abduction to 110 degrees, external rotation to 80 degrees, and internal rotation to 90 degrees, with pain. There was no additional loss of motion or function with repetitive movement. There was tenderness to palpation of the lateral deltoid. There was no pain on weight bearing. There was objective evidence of crepitus. Strength was 5/5 and there was no muscle atrophy. There were symptoms of instability such as clicking or catching. There was no history of recurrent subluxation. Crank apprehension and relocation test was positive. He did not have a condition affecting the humerus or A/C joint. The examiner noted an anterior shoulder scar measuring 6cm by 0.25cm. Occupationally, the right shoulder disability impaired the Veteran's ability to lift overhead or lift heavy objects. On VA examination in October 2020, the examiner diagnosed degenerative arthritis of the right shoulder, status post Bankart repair for shoulder dislocation, status post arthroscopic surgery in March 2012. The Veteran endorsed flare-ups of the right shoulder symptoms four to six times a year during heavy repetitive use, or during cold weather. The right shoulder flare-ups were described as moderate to severe. The flare-ups lasted about a day later and were precipitated by certain movements such as pulling the cord on a lawnmower, repetitive motions, working on cars and using a chain saw. The right shoulder flare-ups were alleviated by stopping the repetitive motion. Right shoulder flexion was to 90 degrees, abduction was to 90 degrees, external rotation was to 40 degrees, and internal rotation was to 40 degrees, with repeated use over time and during flare-ups. There was no evidence of pain on passive range of motion testing, on non-weight bearing or on weight bearing. Strength was 5/5 and there was no muscle atrophy. There was shoulder instability with crank apprehension and relocation test was positive. There was no impairment of the humerus. The examiner noted a right anterior shoulder scar measuring 12cm in length by 0.5cm in width. The scar was not painful or unstable. Occupationally, the right shoulder disability was productive of pain and popping and impaired his ability to perform overhead lifting, repetitive motion and lifting of heavy items. Next, the Board notes that treatment records periodical document the Veteran's complaints and treatment for his right shoulder disability. However, the Board finds that nothing in these records show his adverse symptomatology, including his range of motion, to be worse than what was reported by the above VA examiners. See Colvin, supra. Initially, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for his right shoulder disorder the Board has not overlooked the Court's holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases. Specifically, the Board finds that the post-Remand VA examination dated in October 2020 provides VA with medical opinions evidence adequate to rate the Veteran's right shoulder when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiner specifically addressed each of these concerns. Next, the Board notes that the VA examinations and treatment records did not identify ankylosis of the shoulder no adverse symptomatology that equates to ankylosis even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra). Therefore, Diagnostic Code 5200 is not applicable. See Butt's, supra. Similarly, because the record contains no evidence of an impairment of the humerus, and the Veteran has not described symptoms that are suggestive of an impairment of the humerus; therefore, Diagnostic Code 5202 is not applicable. Id. Likewise, Diagnostic Code 5203 is not applicable because the record does not document dislocation, nonunion, or malunion of the clavicle and scapula. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. Id. As to a rating in excess of 20 percent for the right shoulder disability under old or new Diagnostic Code 5201, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for at least the next higher rating because motion of the arm is limited to 25 degrees or less from the side at any of the VA examinations or any of his treatment records because it was normal at the June 2015 VA examination, flexion was to 140 degrees and abduction was to 110 degrees at the January 2017 VA examination, and flexion was to 90 degrees and abduction was to 90 degrees at the October 2020 VA examination. See 38 C.F.R. § 4.71a; Colvin, supra. Therefore, the Veteran's right shoulder disability warrants no more than a 20 percent rating under either the old or the new rating criteria. It is noted that the Veteran's shoulder disability involves surgical scaring that has been assigned a separate noncompensable disability rating. There is no evidence of painful or unstable scarring covering a total area greater than 39 square cm. Accordingly, a compensable rating is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805. The Board finds that the preponderance of the evidence is against an increased rating for the right shoulder condition. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. As a final matter, the Veteran has not specifically claimed entitlement to a total disability due to individual unemployability (TDIU) as a result of his service-connected right shoulder disability. In the event that a claim of a TDIU was implicitly raised (see Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009)), review of the medical evidence does not reflect that the Veteran meets the required percentage criteria. Nor does the record suggest that the Veteran's service-connected connected problems alone preclude employment so as to warrant a referral for extraschedular consideration. Thus, a clear preponderance of the evidence of record is against a finding that the Veteran is precluded from gainful employment due solely to his service-connected right shoulder disability with scarring, and no further action pursuant to Rice is warranted. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.