Citation Nr: 22017330 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-23 235 DATE: March 24, 2022 ORDER Service connection for a right shoulder disability is granted. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Entitlement to a disability rating higher than 20 percent for a left shoulder disability is denied. FINDINGS OF FACT 1. The evidence is at least in approximate balance as to whether the Veteran's right shoulder disability is etiologically related to his active service. 2. The Veteran's right knee disability was not present in service or for many years thereafter and is not otherwise related to service. 3. The Veteran's left knee disability was not present in service or for many years thereafter and is not otherwise related to service. 4. The Veteran's left shoulder disability has not manifested as limitation of left arm flexion or abduction to 45 degrees from side. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a rating higher than 20 percent for a left shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty in the United States Marine Corps from February 1990 to May 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2019, the Board remanded this case for additional development. The case has now been returned to the Board for further appellate review. General Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. "[I]f the positive and negative evidence is in approximate balance ... the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Background and Analysis Service connection for a right shoulder disability The record shows that no right shoulder symptoms or conditions were noted during the Veteran's entry into service. The service treatment records (STRs) show that in September 1993, the Veteran injured his right shoulder while playing football. The Veteran continued to follow up with reports of right shoulder pain over the subsequent months, and he was variously diagnosed with instability, acromioclavicular (AC) joint subluxation, deltoid muscle strain, and chronic strain. In March 1994, six months after his injury, it was noted that the condition had worsened, and the Veteran had pain while flexing his arm behind his back. A May 1996 medical record noted "bilateral shoulder arthralgia." On his report of medical history in May 1998, the Veteran asserted that he had pain in his shoulders when holding his hands behind his back. Pursuant to an August 1998 VA examination, the Veteran reported pain in his right shoulder when raising his arm above his head, ever since his football injury. The Veteran has maintained in his written statements and hearing testimony that he has experienced right shoulder pain and limitations ever since service. In a February 2015 VA examination report, a diagnosis of right shoulder subluxation was provided, and it was noted the Veteran had AC joint subluxation in service. In April 2016, the examiner provided an opinion that the Veteran's right shoulder condition was unrelated to service on the basis that the condition was noted to have "resolved" in an April 1994 record. The examiner also stated the Veteran had a normal right shoulder on exam in August 1998. Pursuant to the Board's August 2019 remand, an additional VA examination and medical opinion were obtained in October 2019. The examiner diagnosed right shoulder strain. He ultimately opined that the Veteran's right shoulder disability was unrelated to service on the basis that the documented September 1993 injury was acute, and that no complaints were made of right shoulder pain at discharge. He further noted that the Veteran's right shoulder disability was likely related to his 20 years working in a warehouse following service. At this juncture, the Board observes that approximately one year after his in-service right shoulder injury, the Veteran injured his left shoulder, also while playing football. Like his right shoulder, the diagnosis for the left shoulder was muscle strain and subluxation. Although service connection was granted for the left shoulder in a January 1999 rating decision, that decision denied service connection for the right shoulder. Upon review, the Board observes that the Veteran's STRs show that he was diagnosed with AC joint subluxation and chronic strain following his September 1993 injury, and that symptoms included pain when holding his arm behind his back. Continued worsening of the condition is documented in the STRs for at least six months afterward. Then, on his report of medical history in May 1998, and at an August 1998 medical examination, approximately 5 years after the injury, the Veteran again reported continued right shoulder pain, to include, again, when placing his arm behind his back. The Board observes that the February 2015 and April 2016 VA medical opinions were based primarily on findings that the Veteran's in-service right shoulder injury was acute and quickly resolved. These findings are contradicted by the STRs detailed above, and by the Veteran's assertions of continuing pain since service, which the examiners did not address. For these reasons, the Board finds the VA examination reports of record are of limited probative value. In summary, the record shows the Veteran was diagnosed with chronic right shoulder strain and subluxation following a 1993 in-service injury. He continued to report symptoms stemming from this injury for the remaining 5 years of his service, and has asserted that the symptoms have been present ever since. The record also shows the Veteran's current right shoulder disability is diagnosed as a strain with subluxation. Again, the medical evidence weighing against the Veteran's claim fails to take account of these significant facts. After careful review of the foregoing, the Board finds the evidence is at least in approximate balance as to whether the Veteran's right shoulder disability is etiologically related to his active service. Accordingly, granting of service connection for a right shoulder disability is warranted. Service connection for right and left knee disabilities The record shows the Veteran has been diagnosed with right and left knee disabilities. The STRs show the Veteran reported right knee pain in 1993 following a motor vehicle accident. However, the STRs are devoid of any further complaints of right or left knee symptoms, to include at discharge. The record shows the Veteran first reported right knee pain following service in November 2008, at which time he stated his right knee was "giving out" at times over the previous several months. The next report of right knee pain is documented in May 2013, when the Veteran underwent an MRI after reporting that his right knee pain had started one month prior, following an injury while bowling, which was then exacerbated by an injury while playing basketball. Imaging discovered an MCL sprain and arthritis. The first post-service report of left knee pain appears in October 2016. The Veteran has maintained that he experienced bilateral knee pain during service, which he self-treated, and that these symptoms have persisted ever since. At this juncture, the Board observes that the Veteran worked in a warehouse for more than 20 years following service, and that his job was "very physical" and involved "constantly unloading trailers." See October 2016 VA treatment records. Pursuant to an April 2016 VA medical opinion, following an examination, a VA examiner ultimately determined that the Veteran's knee disabilities were unrelated to service. In support of his opinion, the examiner noted that following the 1993 motor vehicle accident, the Veteran's right knee was noted to be within normal limits, and that there were no further in-service reports of knee problems. He then noted that the May 2013 records referenced above attributed the Veteran's right knee disability to recent bowling and basketball injuries. Next, the examiner noted the Veteran was 43 years old and was obese. In this regard, the examiner cited medical literature supporting the proposition that advancing age and obesity were highly significant risk factors for osteoarthritis. Pursuant to the Board's remand, an additional VA examination and medical opinion were obtained in October 2019. Ultimately, the examiner concluded that the Veteran's knee disabilities were unrelated to service. In support of his opinion, the examiner again noted that the Veteran's STRs contained no documentation of knee problems following his 1993 motor vehicle accident and noted the attribution in 2013 of the Veteran's right knee disability to recent injuries. Finally, the examiner noted the Veteran's post-service career as a warehouse manager, and stated it was more likely that the Veteran's knee conditions were due to a combination of factors such as age, weight, and years of excessive strenuous physical activity working in a warehouse. Upon review, the Board finds the VA examiner's opinions to be highly probative, as they are based upon examinations and interviews of the Veteran, reviews of the medical evidence, and sound medical explanations. After careful consideration, the Board finds that the Veteran's statements regarding continuing symptoms since service, made many years later in connection with a claim for VA benefits, are outweighed by the medical evidence. The Board also observes that the Veteran has not submitted, and there is no probative medical evidence of record to contradict the VA medical opinions. For these reasons, the claims for service connection for right and left knee disabilities must be denied. Increased rating for left shoulder disability The Veteran is in receipt of a 20 percent rating for his left shoulder disability throughout the period of the claim under 38 C.F.R. § 4.71a, DC 5201. The record is inconsistent as to whether the Veteran is right- or left-handed. Resolving reasonable doubt in the Veteran's favor, the Board will apply the DC 5201 criteria applicable to the dominant arm, which provide for higher evaluations. The Board notes VA revised the rating criteria for evaluating shoulder disorders, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. Pursuant to DC 5201 prior to February 7, 2021, a 20 percent evaluation is warranted for motion of the major arm limited to shoulder level; a 30 percent rating is warranted for motion limited to midway between the side and shoulder level; and a maximum 40 percent rating is assignable for the major upper extremity, when motion is limited to within 25 degrees from the side. 38 C.F.R. § 4.71a , DC 5201. The revised regulations for DC 5201 clarify that limitation of motion of the arm includes either flexion or abduction. It also clarifies that "shoulder level" equates to flexion and/or abduction limited to 90 degrees, "midway between side and shoulder level" equates to flexion and/or abduction limited to 45 degrees, and "[t]o 25 degrees from side" equates to flexion and/or abduction limited to 25 degrees from side. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. The Veteran was afforded a VA shoulder examination in February 2015. Left arm flexion was to 135 degrees, and abduction was to 110 degrees. There was no additional loss of range of motion following repetitive use testing. The Veteran was afforded an additional VA examination in March 2018. Left arm flexion was to 110 degrees, while abduction was to 140 degrees. Pursuant to the Board's remand, the Veteran was afforded an additional examination in October 2019. Left arm flexion was to 130 degrees, and abduction was to 115 degrees. Repetitive use testing did not result in additional loss of motion. The examiner performed range of motion testing with both passive and active motion, and with and without weight-bearing. Regarding intermittent flare-ups of his condition reported by the Veteran, the examiner explained that after a review of the Veteran's records and reported history, and the physical examination, and with use of his own medical knowledge and expertise, he had no basis to estimate the additional loss of function during a flare-up. In this regard, the Board has thoroughly reviewed the record, and observes that the Veteran has not contended at any time that his left shoulder disability has limited his left arm flexion or abduction to 45 degrees or less from his side, to include during flare-ups. A February 2020 VA outpatient treatment record noted approximately 180 degrees of flexion, abduction with painful arc, external rotation to 50 and internal rotation to T7. Strength testing was 4/5 reflecting good strength with symptom reproduction. There was positive Hawkins, Speed and Neer. There was tenderness over the biceps tendon but not over the AC joint. Crossed arm test was negative. The Board has thoroughly reviewed the entire record, to include the examination reports discussed above, all outpatient treatment records, and the Veteran's statements and testimony. In summary, the record does not show the Veteran's left arm range of motion has been limited to 45 degrees or less from his left side at any time during the period of the claim. The Board acknowledges the severity of the Veteran's left shoulder symptoms, including pain, weakness, limitation mobility and strength and difficulty with overhead activities requiring pain medication and even injections. The Board is aware of the ongoing pain reported with lifting and during daily activities. Despite these symptoms, the severity of the left shoulder disorder is not great enough to approximate limitation midway between the side and shoulder, and limitation of flexion and abduction has not been shown to be reduced to 45 degrees or less. Moreover, based on the objective test results from the VA examinations, and even with consideration of the additional impairment indicated during repetitive testing and flare-ups, the Board finds the right shoulder disorder is no worse than limitation of motion to shoulder level and a 20 percent rating under DC 5201. Upon review of the record, there is no evidence of left shoulder ankylosis or impairment of the humerus. Therefore, higher ratings are not warranted under alternate diagnostic codes. See 38 C.F.R. § 4.71a, DCs 5200, 5202. Based on the foregoing, the Board finds ratings higher than 20 percent is not warranted for the Veteran's left shoulder disability. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hampton, 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.