Citation Nr: 21030729 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-27 719 DATE: May 19, 2021 ORDER Entitlement to service connection for lumbar spine disability, to include as secondary to service-connected residuals of right ankle injury, is denied. Entitlement to service connection for sciatica of bilateral lower extremities is denied. Entitlement to a rating in excess of 20 percent for right shoulder disability is denied. Entitlement to a rating in excess of 10 percent for residuals of right ankle injury is denied. REMANDED Entitlement to service connection for cervical spine disability, to include as secondary to service-connected residuals of right acromioclavicular separation, is remanded. FINDINGS OF FACT 1. The probative evidence does not establish that a lumbar spine disability had onset in service, is causally related to service, or was caused or aggravated by a service-connected disability. 2. The probative evidence does not establish that sciatica had onset in service, is causally related to service, or was caused or aggravated by a service-connected disability. 3. The Veteran's right shoulder disability is manifested by limitation of motion, most severely limited to 70 degrees of flexion and 75 degrees of abduction with complaints of pain and weakness. 4. The Veteran's residuals of right ankle injury is manifested by an overall disability picture more nearly approximating moderate, but not marked, limitation of motion due to pain. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbar spine disability, to include as secondary to service-connected residuals of right ankle injury, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for sciatica of bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to a rating in excess of 20 percent for right (minor) shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 4. The criteria for entitlement to a rating in excess of 10 percent for residuals of right ankle injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to August 1970. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2010 rating decision by a VA Regional Office (RO). In July 2015, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge; a transcript of that hearing is of record. The law requires the VLJ who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. The Veteran was notified that the VLJ that conducted his hearing is no longer employed by the Board by way of a March 2021 letter. He was offered the opportunity to have a new hearing and was notified that if he did not respond within 30 days, the Board would assume that he does not desire an additional hearing and would proceed with adjudication of the claims. The Veteran has not responded to this letter. Thus, the Board will proceed to consider the claims without additional hearing testimony. In September 2015 and again in October 2017, the Board remanded the issues on appeal for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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. 38 U.S.C. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Service connection also may be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board also notes the Veteran engaged in combat while on active duty in the Republic of Vietnam as exemplified, in part, by his award of the Combat Action Ribbon and Purple Heart. In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The Federal Circuit has held that in the case of a combat veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for lumbar spine disability, to include as secondary to service-connected residuals of right ankle injury At his Board hearing in July 2015, the Veteran testified that he believed his low back pain was related to his service-connected right ankle disability. He testified that he believed his back pain was caused by his favoring his right ankle. The service treatment records do not show low back injury or complaints. On a report of medical history completed by the Veteran in December 1967, he denied recurrent back pain. Examination at that time noted normal spine. The service separation examination in August 1970 did not note any spine abnormalities. A VA examination conducted in April 1971 did not note any lower back complaints or abnormalities. On VA examination in March 2010, the Veteran reported low back pain with radiation to lower extremities. The examiner diagnosed lumbar strain and opined that the Veteran's current lumbar spine condition was not caused by or a result of military service; the current lumbar spine condition was not caused by or a result of or aggravated by his right ankle condition. The examiner stated that there was "no objective evidence of a chronic lumbar disability during service or in close proximity to his separation from service. There is no objective evidence of a causal connection between the Veteran's current lumbar strain and service-connected right ankle." A February 2016 VA examination found no evidence of current lumbosacral spine condition. On VA examination in September 2020, the Veteran reported that his back started hurting in 1972. The examiner diagnosed lumbosacral strain. The examiner opined that the Veteran's current lumbosacral strain is less likely than not proximately due to or aggravated by the result of the Veteran's service-connected condition. STRs and medical records did not sufficiently demonstrate that current lumbosacral strain was caused by veteran's SC conditions. Veteran sated that he was in combat and had fall incident during military service. STRs are lacking to show frequent physician encounters due to the claimed condition. No continuity of symptoms established. STR also documented shrapnel wound injury and right shoulder spasm. No evidence that these caused the LS strain. Report of Medical exams in 1965 and 1967 were negative for complaints of back problems. Spine exam normal. Veteran stated that back pain started in 1972. Nexus has not been established In a VA opinion dated in November 2020, another examiner opined: The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Combat veteran status noted. The claim of a diagnosed back... condition or chronicity of care from [active duty] is not supported by available treatment notes. The only... back complaints are associated with the C&P process and related to another SC condition not directly due to AD/combat. Surely if back... complaints were as troubling as noted in DBQs, the Veteran would have reported them, yet there are none in treatment notes. Lay statements not supported by evidence. The same examiner also opined: There is no clear evidence from review of orthopedic literature (Wheeless' Textbook of Orthopedics) to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individual's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. This level of severity is not supported based on record review, history or exam. It is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. Therefore the lumbar strain is less likely than not related to the SC conditions (shoulder/ankle). (Oxford's Textbook on Orthopedics and Trauma). In a written statement dated in December 2020, the Veteran reported that: While in service, my back started killing me. I couldn't sleep and couldn't get comfortable no matter what I did. They had to give me medication to help. My neck began hurting me as well; it was stiff and I couldn't turn it to the right. This continued after I left service. After service, I didn't treat for my neck and back conditions because I was a Police Officer and felt if I complained about my neck and back, I'd get fired because they would feel I wouldn't be able to do my job. I would go to a chiropractor every now and again, which helped a little. Over the years, my neck and back conditions have gotten worse. I started treating for my shoulder and neck together with physical therapy at the VA in Gainesville in 2015 because the pain became too much. I went every week for a couple of months and only stopped because it was the end of the session and they told me to continue the exercises at home. The Board finds that the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's back disability and an in-service injury, event or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The evidence also fails to reflect that the claimed disability was caused or aggravated by the service-connected right ankle disability. The Board gives probative weight to competent medical evidence, which includes the September 2020 and November 2020 VA opinions. The opinions therein are probative because the examiners have the appropriate training, expertise and knowledge to evaluate the claimed disability. The examiners provided thorough and cogent rationales for the findings and opinions contained in the reports, which included consideration of the Veteran's reported symptoms both during and after service, and the post-service clinical history. Furthermore, the examiners also reviewed the claims file. While the findings are consistent with the treatment record and the clinical impressions therein, there are no competent opinions to the contrary. While the Veteran is competent to report having experienced symptoms of back pain beginning in and since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his currently diagnosed disability. The issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As the Veteran has not demonstrated the necessary medical expertise, he is not competent to opine on the matter. Thus, the Board accords more probative weight to the medical evidence of record. Further, the Veteran has been inconsistent in his report of the history of his back complaints. While his November 2020 statement reported inservice onset of back pain that was so bad that he could not sleep and that he sought treatment for it, the service treatment records do not show any back complaints, and the Veteran denied back pain on the December 1967 examination. The service separation examination in August 1970, and the VA examination in April 1971 also did not document any back complaints. At the September 2020 examination, the Veteran reported onset of back pain in 1972. The Veteran testified before the Board in 2015 that he believed his back pain was related to his right ankle disability. The inconsistent statements as well as the lack of documented back complaints for many years following service render the Veteran's recent claim that he injured his back in service unpersuasive. Moreover, there is no competent evidence linking a back injury in service to his current diagnosis. In sum, the evidence weighs against the Veteran's claim for service connection for his current lumbar spine disability, either as related to active military service or his service-connected right ankle disability. Accordingly, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for sciatica of bilateral lower extremities The Veteran contends that he has sciatica that is related to his back disability. As noted above, service connection for a low back disability is not warranted, thus secondary service connection for sciatica is not for consideration. 38 C.F.R. § 3.310. The Board has also considered whether service connection for sciatica is warranted on another basis. The service treatment records do not show any complaints or findings of sciatica. The April 1971 VA examination noted neurological examination within normal limits. On VA examination in March 2010, the Veteran reported back pain radiating into the lower extremities. A VA examiner in February 2016 found that the Veteran had "nothing suggestive of sciatic nerve issues." The September 2020 VA examination found no neurological abnormalities. The examiner stated that there was no evidence of sciatica. The Board finds that service connection for sciatica is not warranted. There is no objective evidence of sciatica in service or for many years after service. While the March 2010 examiner noted radiating pain, the February 2016 and September 2020 VA examinations found no sciatica. The preponderance of the evidence is against the claim. Accordingly, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 3. Entitlement to a rating greater 20 percent for right (minor) shoulder The Veteran's current claim for increased rating was received in August 2009. The April 2010 rating decision on appeal increased the rating for the Veteran's right shoulder disability to 10 percent from October 9, 2007. The Veteran filed a notice of disagreement. A subsequent January 2021 rating action increased the rating to 20 percent from August 10, 2009. The record shows that the Veteran is left-handed, thus his right shoulder is the non-dominant one. The Veteran's service-connected right shoulder disability, characterized as residuals of right acromioclavicular separation with osteoarthritis of glenohumeral and acromioclavicular joints, is rated under 38 C.F.R. § 4.71a , Diagnostic Code 5003-5010 for arthritis. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The amendment to Diagnostic Code 5010, effective February 7, 2021, for post-traumatic arthritis was clarified that it can be rated as limitation of motion, dislocation, or instability. 38 C.F.R. § 4.71a, 85 Fed. Reg. 76453 (Nov. 30, 2020). Under the amendment, Diagnostic Code 5002 also was renamed from rheumatoid arthritis to multi-joint arthritis to take into account all systemic arthritis (except post-traumatic and gout). Id. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. As noted, the Veteran's right shoulder is considered his minor side. As applicable to the Veteran's shoulder disability, the amendments to the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, clarify that Diagnostic Code 5201 addressing limitation of motion of arm includes either flexion or abduction. 38 C.F.R. § 4.71a, 85 Fed. Reg. 76453 (Nov. 30, 2020). The amendments further clarify that Diagnostic Codes 5201 and 5202 provide that shoulder level is 90 degrees and midway is 45 degrees. 38 C.F.R. § 4.71a, 85 Fed. Reg. 76453 (Nov. 30, 2020). Id. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in section 4.40 or section 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the right shoulder disability. As noted, the evidence of record shows that the Veteran is left-handed. See, e.g., March 2010, February 2016, and August 2019 VA examination reports. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and weakened movement. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he cannot lift his arm above shoulder level would not result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the side of the minor extremity. An October 2009 VA physical therapy note reported that the Veteran had slowly increasing pain-free active range of motion of the right shoulder although subjectively the Veteran did not note decreased pain. A December 2009 physical therapy note reported increasing pain-free active range of right shoulder motion, still mostly limited with end-range flexion and abduction. In January 2010, the Veteran was noted to be improving, with "some difficulties with overhead activities" noted. On a March 2010 VA examination, the Veteran reported painful right shoulder motion. The examiner noted stiffness, weakness and tenderness of the right shoulder. Right shoulder flexion was from zero to 140 degrees, with pain noted from 120-140 degrees. Abduction was zero to 130 degrees, with pain noted from 120-130 degrees. An October 2015 VA orthopedic surgery consultation noted the Veteran reported right shoulder pain. The Veteran reported that the pain was worse with overhead motion, reaching, lifting, and activity. The Veteran had active flexion to 130 degrees and active abduction to 130 degrees. A February 2016 VA examination report, which the Board previously observed in the 2017 remand did not comply with Correia, noted the Veteran reported daily shoulder pain, with no flare-ups. Initial range of motion was flexion to 115 degrees and abduction to 100 degrees. There was no additional motion loss after three repetitions. There was no pain with weight bearing. Crepitus was noted as was tenderness to the AC joint. Muscle strength was normal and there was no muscle atrophy. There was no ankylosis. No rotator cuff condition was suspected. The examiner noted that the Veteran had limitation of activity at and above his shoulder level. On VA examination in August 2019, the Veteran reported flare-ups of the right shoulder occurred daily and were moderate/severe. The right shoulder flare-ups were precipitated by yardwork and chores around the house. They were alleviated by heat/ice and Aleve. The Veteran reported functional loss from the right shoulder as inability to lift items weighing more than five pounds with his right arm, and inability to perform tasks requiring raising his right arm over his head, such as placing items in a cupboard. Initial ranges of motion were flexion to 85 degrees and abduction to 85 degrees. After three repetitions, flexion was to 70 degrees and abduction to 75 degrees. With repeated use over time, the examiner estimated flexion would be to 70 degrees and abduction to 75 degrees. With respect to flare-ups, the examiner noted that range of motion "would decrease; however, it is completely arbitrary to state how much without examining the Veteran during a flare-up and I am unable to do so without resorting to mere speculation. Based on Veteran's testimony, the medical evidence of record, and medical knowledge and expertise of myself and the medical community at large. The ROM would decrease; however, cannot quantify because ROM would vary depending on activities performed and pain experience." The examiner noted evidence of pain with weight bearing. There was crepitus. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Muscle strength was 4/5 for flexion and abduction; there was no muscle atrophy. There was no ankylosis and no rotator cuff condition. The examiner also indicated she had tested for pain on active and passive motion and in weight-bearing and nonweight-bearing states, with comparison to the uninjured opposite joint. The August 2019 VA examiner complied with Sharp v. Shulkin, 29 Vet. App. 26 (2017) in that she provided the range of motion that would be limited with repeated use over time. Further, she indicated that her inability to provide the specific range of motion loss upon flare-ups was due to limitations in the medical community at large. Reviewing the medical evidence of record, the Veteran's left shoulder is manifested by limitation of motion, most severely limited to 70 degrees of flexion and 75 degrees of abduction with complaints of pain and weakness. The Veteran's functional impairment in the right shoulder does not include limitation of motion in the right arm to 25 degrees from his side, which is needed for the next higher 30 percent rating for the minor side under 38 C.F.R. § 4.71a , Diagnostic Code 5201. The Board has considered the amendments to the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The amendments to Diagnostic Code 5201 clarifying that limitation of motion of arm includes either flexion or abduction does not impact the Veteran's claim; as, effective February 7, 2021, there is no evidence of any limitation of flexion or abduction to 25 degrees. Id. Finally, the clarification that Diagnostic Codes 5201 and 5202 provide that shoulder level is 90 degrees and midway is 45 degrees does not impact the Veteran's claim as he is already rated on the basis of limitation to motion of the arm at shoulder level, which warrants a 20 percent rating for both the major and minor extremity under Diagnostic Code 5201. Id. The Board has considered whether any other diagnostic codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Specifically, there is no evidence of ankylosis of the right scapulohumeral articulation under Diagnostic Code 5200. There is no evidence of other impairment of the humerus under Diagnostic Code 5202. Finally, under Diagnostic Code 5203, 20 percent is the highest schedular rating available; there also is no evidence of impairment of the clavicle or scapula. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for the right shoulder disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a rating greater than 10 percent for residuals of right ankle injury The Veteran's current claim for increased rating for residuals of right ankle injury was received in August 2009. The April 2010 rating decision on appeal increased the rating for the Veteran's right ankle disability to 10 percent from April 1, 2009. The Veteran's service-connected right ankle disability is currently rated as 10 percent disabling under Diagnostic Code 5271 and he seeks a higher rating. The regulations for evaluating musculoskeletal disabilities were amended, effective from February 7, 2021. Prior to February 7, 2021, Diagnostic Code 5271 provides a 10 percent disability rating for moderate limitation of motion of the ankle and a 20 percent disability rating for marked limitation of motion of the ankle. The words "moderate" or "marked" are not defined in the VA Schedule prior to February 7, 2021. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021, Diagnostic Code 5271 provides definitions for "moderate" and "marked" and a 10 percent disability rating for moderate limitation of motion of the ankle is defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A 20 percent disability rating for marked limitation of motion of the ankle is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Normal or full range of motion for the ankle is dorsiflexion (extension) from zero to 20 degrees and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. A March 2010 VA examination noted the Veteran reported pain, stiffness, and weakness of the right ankle. The examiner noted a diagnosis of right ankle strain. The examiner noted pain with motion. There was no ankle instability. The examiner noted dorsiflexion to 20 degrees with pain at the endpoint. Plantar flexion was to 45 degrees, with pain at the endpoint. The February 2016 VA examination report, which the Board previously observed in the 2017 remand did not comply with Correia, the examiner noted osteoarthritis of the right ankle. The Veteran reported everyday ankle pain, with no flare-ups. He did not report any functional loss. The examiner noted dorsiflexion to 20 degrees and plantar flexion to 45 degrees. The examiner stated that pain was noted with dorsiflexion but it did not cause functional loss. There was no additional limitation of motion after three repetitions. There was no evidence of pain with weight bearing and no crepitus. There was no localized tenderness or pain with palpation. There was no reduction in muscle strength and no muscle atrophy. There was no ankylosis. No instability or dislocation of the ankle was suspected. On VA examination in August 2019, the Veteran reported that flare-ups of the right ankle occurred daily. These were moderate/severe and precipitated by walking, stairs, and standing for long periods. The right ankle flare-ups were alleviated by ice and Aleve. Initial ranges of motion were dorsiflexion to 20 degrees and plantar flexion to 30 degrees. There was pain with dorsiflexion that caused functional loss. The examiner noted that there was mild pain on palpation of the lateral aspect of the ankle. There was pain with weight bearing. There was no crepitus. There was no additional limitation of motion after three repetitions. The examiner stated that "after repetitive use there was no additional loss of ROM. Today's degrees in ROM do not appear suggestive of what one should expect considering the Veteran's [past medical history], exam findings and medical evidence of record. Therefore based on Veteran's testimony, the medical evidence of record, and medical knowledge and expertise of myself and the medical community at large I am unable to determine loss of ROM after repetitive use over time without resorting to mere speculation." The examiner also indicated she had tested for pain on active and passive motion and in weight-bearing and nonweight-bearing states, with comparison to the uninjured opposite joint. With respect to flare-ups, the examiner stated that range of motion "would decrease; however, it is completely arbitrary to state how much without examining the Veteran during a flare-up and I am unable to do so without resorting to mere speculation. Based on Veteran's testimony, the medical evidence of record, and medical knowledge and expertise of myself and the medical community at large. The ROM would decrease; however, cannot quantify because ROM would vary depending on activities performed and pain experience." Muscle strength for dorsiflexion was 5/5; strength for plantar flexion was 4/5. There was no muscle atrophy. There was no ankylosis and no joint instability. The August 2019 VA examiner complied with Sharp v. Shulkin, 29 Vet. App. 26 (2017) in that she elicited information from the Veteran regarding his flares' severity, frequency, duration, and functional loss manifestations; she identified that she had reviewed medical records and other sources available to her; and she stated that an opinion cannot be provided without resort to speculation due to a lack of knowledge among the "medical community at large" as well as herself. Having considered the evidence of record under the rating criteria outline above, the Board finds that an evaluation greater than 10 percent is not warranted for the Veteran's right ankle sprain at any time during the period on appeal. Based on the regulations prior to and since February 7, 2021, a 20 percent rating is not warranted. The record, including the VA examination reports, establishes that the Veteran's right ankle disability has not resulted in marked limitation of motion of the ankle, required for the next higher rating. The medical evidence of record does not show limitation of motion of his ankle of less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, as defined in the updated regulations listed above. Instead the evidence shows that the Veteran experiences limitation of motion of the ankle due to pain, contemplated by the current 10 percent rating. The Veteran is competent to report observable symptoms such as pain, swelling, and stiffness; however, the competent medical evidence does not show that the Veteran's reports of pain result in marked limitation of motion of the ankle required for a 20 percent disability rating under DC 5271 prior to or since the February 7, 2021 regulation update. As such, the Veteran's overall disability picture regarding his right ankle disability is contemplated by the currently assigned 10 percent rating under DC 5271. DC 5270, which evaluates ankylosis of the ankle, provides a rating in excess of 20 percent. However, the competent medical evidence of record does not indicate that the Veteran has ankylosis of the right ankle, and the Veteran has not submitted any evidence to show otherwise. Therefore, a disability rating under DC 5270 for the Veteran's right ankle is not available. In sum, the Board finds the preponderance of the evidence weighs against a finding that the Veteran's right ankle disabilty more closely approximates marked limitation of motion of the ankle, required for a rating in excess of 10 percent under DC 5271. As such, a rating in excess of 10 percent is not warranted. The benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for cervical spine disability, to include as secondary to service-connected residuals of right acromioclavicular separation is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that there is substantial compliance with the Board's prior remand directives and to obtain an adequate VA medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998); see Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has contended both that he injured his neck during service in Vietnam, and that his current neck disability is secondary to/aggravated by his service-connected right shoulder disability. The service treatment records note in November 1968 and again in July 1969 that the Veteran complained of neck stiffness with right shoulder spasm. The Board's October 2017 remand specifically directed a VA examiner to comment on the reported neck stiffness in the service treatment records. In the VA opinions obtained in September 2020 and November 2020, the examiners do not specifically note the neck stiffness entries in the service treatment records. Rather, the September 2020 examiner notes "11/1968 rt shoulder spasm" and states that: STRs and medical records did not sufficiently demonstrate that current cervical strain was caused by veteran's SC conditions. Veteran sated that he was in combat and had fall incident during military service. STRs are lacking to show frequent physician encounters due to the claimed condition. No continuity of symptoms established. STR also documented shrapnel wound injury and right shoulder spasm. No evidence that these caused the cervical strain. Report of Medical exams in 1965 and 1967 were negative for complaints of back problems. Spine exam normal. Veteran stated that back pain started in 1972. Nexus has not been established. Since the examiner did not mention the two references to neck stiffness associated with right shoulder spasm in the service treatment records, an addendum is needed. The matters are REMANDED for the following action: Have the record reviewed by an appropriate VA medical provider who will address the etiology of the Veteran's cervical spine disability. The claims file and remand must be made available to the provider. With respect to the Veteran's diagnosed cervical spine disability, the provider should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the disability: (a) had its onset in service or is otherwise medically-related to service; or, if not, (b) was caused, OR is, or has been, aggravated (worsened beyond the natural progression) by the Veteran's service-connected right shoulder disability. (Continued on the next page) In rendering each requested opinion, the provider must specifically consider the Veteran's description of combat and shrapnel injuries and whether those injuries are claimed to have resulted in the current cervical spine disability. The provider must specifically consider the November 1968 and July 1969 service treatment records reflecting the Veteran's complaints of neck stiffness in the context to treatment for right shoulder spasm. A rationale for the conclusions reached must be provided. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.