Citation Nr: 21039754 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-13 230 DATE: July 1, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to May 23, 2016 and in excess of 20 percent thereafter for a right shoulder disability is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. Prior to May 23, 2016, the Veteran's right shoulder disability did not manifest in flexion and/or abduction limited to 90 degrees or less. 2. Since May 23, 2016, the Veteran's right shoulder disability has not manifested in flexion and/or abduction limited to 45 degrees or less. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent prior to May 23, 2016 and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5201, 5299. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 2009 to May 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matter in May 2019 for further development. The Board notes that both issues were remanded in May 2019 and that the Veteran was ultimately granted compensable ratings for the entire appeal period for his right shoulder disability, dating back to the day after his separation from active duty. See Aug. 2020 Rating Decision Narrative. In the August 2020 decision granting compensable ratings, the RO noted that the decision constituted a full grant of the benefits sought on appeal. However, higher ratings are available for both periods for the Veteran's right shoulder disability. The Veteran is presumed to seek the maximum available benefit for a disability. As such, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to a rating in excess of 10 percent prior to May 23, 2016 and in excess of 20 percent thereafter for a right shoulder disability The Veteran's right shoulder condition is evaluated pursuant to 38 C.F.R. § 4.71a, DC 5299-5201. 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 rating assigned. The additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27. Disabilities of the shoulder and arm are rated under DCs 5200 through 5203. The Veteran's right shoulder condition is evaluated pursuant to 38 C.F.R. §4.71a, DC 5201. The right upper extremity is the dominant extremity. DC 5201 distinguishes between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. DC 5201 provides a 20 percent evaluation for limitation of motion of the major arm if it is limited to shoulder level (flexion and/or abduction limited to 90 degrees) and a 30 percent rating if it is limited midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees). A maximum 40 percent rating is warranted if motion is limited to 25 degrees from the side. See 38 C.F.R. § 4.71a, DC 5201. In January 2013, the Veteran underwent a VA shoulder and arm conditions examination. See VA Examination, p. 19. The examiner diagnosed the Veteran with a right rotator cuff tear and noted that the Veteran's right hand was his dominant hand. Id. at 20. The Veteran stated that he experienced flare-ups of the condition with severe nightly pain when laying on his right side. He further complained of constant pain aggravated by raising overhead. Id. The examiner noted that the Veteran's right shoulder flexion ended at 170 degrees and abduction ended at 175 degrees. Id. at 21-22. The Veteran showed the same measurements upon repetitive use testing. Id. at 23-24. In January 2020, the Veteran underwent another VA shoulder and arm conditions examination in which the examiner also diagnosed him with a right rotator cuff tear. The Veteran reported chronic right shoulder pain located in the superior/lateral aspect of the shoulder joint. He noted that the pain was intermittent and a deep pain in the bone that is worse with push-ups, pull-ups, heavy lifting, and overhead reaching. The examiner noted that the Veteran's right hand is his dominant hand. The examiner noted right shoulder flexion and abduction of 0 to 180 degrees. The examiner further noted mild tenderness palpation over the supraspinatus tendon insertion. There was no additional functional loss or range of motion upon observed repetitive use. Strength of forward flexion and abduction of the right shoulder were rated a 5 out of 5. Additional treatment records do not show any evidence that would warrant higher ratings for the Veteran's right shoulder disability. Thus, the Board finds that the evidence of record fails to support the Veteran's claim for an increased rating for the entire appeal period. The evidence does not support a finding that the Veteran's right arm limitation of flexion and/or abduction was limited to 90 degrees or more prior to May 23, 2016, as noted in the January 2013 VA examination outlined above. Further, the evidence does not reflect that the Veteran's arm limitation of flexion and/or abduction was limited to 45 degrees or less since May 23, 2016. The Board has considered whether other Diagnostic Codes would provide higher ratings; however, there was no evidence of ankylosis, impairment of humerus or malunion, or impairment of clavicle or scapula; therefore, Diagnostic Codes 5200, 5202, and 5203 are not for application. The Board notes that the Veteran has offered his own opinion on the severity of his right shoulder disability. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board affords more probative weight to the medical opinions and evidence than the Veteran's own contentions. In the absence of such evidence, the Board is unable to grant higher ratings at any point during the appeal period, dating back to the day after the Veteran's separation from service. Accordingly, an increased rating for the Veteran's right shoulder disability is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to service connection for a right ankle disability is remanded. In January 2020, the Veteran underwent a VA ankle conditions examination in which the examiner did not diagnose him with a right ankle disability. Regarding rationale, the examiner noted that the Veteran's February 2012 separation examination was silent for complaints of a chronic right ankle condition and that there no post-service treatment records indicating a chronic right ankle condition. However, the examiner failed to explain several of the Veteran's in-service right ankle issues, rendering the January 2020 examination inadequate. In August 2009, the Veteran was diagnosed with a right ankle sprain. See Jul. 2010 Medical Treatment Record Government Facility #1. Later in August 2009, the Veteran complained of twisting his right ankle. See Jul. 2010 Medical Treatment Record Government Facility #2. In September 2009, a service treatment record shows that the Veteran experienced a chronic ankle sprain with residual mild degenerative joint disease of the right ankle. See May 2012 STR Medical, p. 14. The next day, the Veteran presented with lateral right ankle joint pain that worsened with weightbearing and foot movement. Id. at 11. Later in September 2009, a provider noted that the Veteran's x-ray of the right ankle showed lateral soft tissue swelling and joint effusion with no acute osseous abnormalities. Id. at 20. In a February 2012 Report of Medical History, the Veteran noted that he experienced foot trouble, swollen and painful joints, and impaired use of the arms, legs, hands, or feet. Id. at 38. The Veteran further explained that his ankle and foot pain is due to an injury that occurred during initial training. Id. at 39. He also stated that the condition causes periodic swelling and discomfort with arthritis and pain in the foot. Id. In October 2012, after the Veteran's separation from active service, a VA provider noted a right ankle ligamentous injury. See Jan. 2020 CAPRI, p. 84. The Board also notes that the examiner failed to explain why the Veteran's reports of pain did not cause functional loss as contemplated by Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Due to the above inadequacies, the Board finds that the January 2020 VA examination is inadequate for adjudication purposes. Accordingly, the claim must be remanded in order to obtain an adequate examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his right ankle disability. Any indicated evaluations, studies, or tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion and the examination report should include a discussion of the Veteran's documented medical history and assertions. The examiner should address the following: (a.) Identify all disorders of the right ankle found on examination, as well as those that have been diagnosed during the appeals period. (b.) Elicit a detailed history of the Veteran's in-service injuries to the right ankle. (c.) For each diagnosed ankle disorder, opine as to whether it is at least likely as not (a 50 percent or greater probability) related to the Veteran's active duty service. In responding to the above, the examiner must address the Veteran's in-service injury and treatment for right ankle issues and whether his right ankle pain constitutes functional loss. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.