Citation Nr: 22018510 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 15-02 278 DATE: March 29, 2022 ORDER Service connection for a right shoulder disability, including right trapezius pain, is granted. Since September 14, 2017, entitlement to an evaluation in excess of 40 percent for a lower back disability is denied. FINDINGS OF FACT 1. The Veteran's right shoulder disability, to include right trapezius pain, was incurred during active-duty military service. 2. Since September 14, 2017, the Veteran's lower back disability is manifested by limitation of motion to 30 degrees or less; there is no ankylosis or its functional equivalent. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability, to include right trapezius pain, have been met. 38 U.S.C. §§1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Since September 14, 2017, the criteria for a 40 percent rating and no higher, for a lower back disability, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1981 to June 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the agency of original jurisdiction (AOJ) which in pertinent part denied service connection for the right shoulder and continued a 10 percent rating for the low back. The Veteran provided testimony at a hearing before the undersigned Veteran's Law Judge in October 2018; a transcript of the hearing has been associated with the claims file. With regard to the low back, a November 2017 rating decision granted an increased 20 percent rating effective September 14, 2017. In April 2019, the Board granted an increased 20 percent rating for the period prior to September 14, 2017, and remanded the period since for further development. The Veteran appealed the decision on the earlier period to the Court of Appeals for Veterans Claims (CAVC or the Court), which in December 2019, on the basis of a Joint Motion for Partial Remand (JMPR), vacated the decision and remanded it to the Board for further proceedings. The Board in turn remanded the issue of evaluation in excess of 20 percent prior to September 14, 2017, in a May 2020 decision. Following the April 2019 remand, the AOJ in April 2020 implemented the Board's award of a 20 percent rating and assigned a 40 percent rating from November 7, 2019. In July 2021, the Board granted an increased 40 percent rating for the low back prior to September 14, 2017. An August 2021 rating decision implemented this decision, effectuating a 40 percent rating from May 10, 2013, the date of receipt of the original claim for increased rating. The Board decision regarding the evaluation prior to September 14, 2017, was not appealed, and there remains no question or controversy for consideration with regard to the low back for that period. 38 U.S.C. § 7105; AB v. Brown, 6 Vet. App. 35 (1993). With regard to the period since September 14, 2017, no final decision has been issued since the April 2019 Board remand. Such has been recertified to the Board, along with the issue of service connection for the right shoulder (also remanded in April 2019) for action after substantial compliance with the ordered development. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). During the pendency of this appeal, the Veteran has been granted service connection and rated for bilateral sciatica secondary to his service-connected lower back disability. At the hearing in October 2018, the Veteran clarified that the rating for his bilateral lower extremities was not being appealed. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans' Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. There is no indication in the record that the Veteran is unemployed, and he has not alleged unemployability. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claim for increased rating. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Pain that impairs function and earning capacity is sufficient to establish a current disability, even in the absence of a presently diagnosed condition. Saunders v. Wilkie 886 F.3d 1356, 1365-66 (Fed. Cir. 2018). Service connection may be awarded for a disability which is proximately due to or the result of a service-connected disease or disability. See 38 C.F.R. § 3.310. In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records show that the Veteran was involved in a motor vehicle accident in October 1985. The day after the accident, he sought treatment for right shoulder pain, stating that he thought he hit his shoulder on the door of the vehicle. He was treated with compresses, over the counter pain medication and a topical analgesic. Subsequent periodic examinations were within normal limits, and the Veteran subjectively denied shoulder pain in February 1999, March 2003, and April 2003. Treatment records from a Military Health System clinic show that the Veteran sought treatment in September 2009 for pain in his neck and shoulder. In October 2009, the Veteran complained of pain in his right trapezius that had begun approximately four months prior, and worsened throughout the day. He denied trauma. Physical examination documented an abnormal shoulder appearance, but the Veteran had full range of motion and normal muscle strength. The right trapezius muscle was tender to palpation. Medical imaging showed mild multilevel disc space narrowing, mild multilevel uncovertebral facet join hypertrophy, and minimal spondylosis at C7-T1. The Veteran was referred to physical therapy for his shoulder and neck, and by December 2009 reported that his right shoulder pain had improved. Shoulder pain continued to be included in the list of problems in the Veteran's treatment records, although X-rays in December 2011 and April 2013 showed no joint effusion, significant arthritic changes, or other acute osseous abnormalities. In May 2013, the Veteran again sought treatment for neck and right shoulder pain that had lasted for the past six weeks. The Veteran told the treatment provider that he believed the pain was related to his motor vehicle accident in 1986. Physical examination showed no redness, deformity or swelling in the Veteran's right shoulder, but his pain was aggravated by movement. His doctor ordered additional X-rays of the shoulder, noting that the Veteran had exacerbation of chronic right neck/shoulder pain and referred the Veteran to physical therapy. Subsequent VA treatment records show that the Veteran continued to seek treatment for episodes of recurring right shoulder pain, and completed multiple courses of physical therapy. He repeatedly related his right shoulder pain to his in-service motor vehicle accident. In May 2015, the Veteran stated that his constant right shoulder pain prevented him from exercising and doing yardwork. At the October 2018 hearing, the Veteran testified that prior to the in-service motor vehicle accident, he had not suffered shoulder pain but that since the accident, his right shoulder pain has progressively worsened. At a September 2020 VA examination, the Veteran described daily shoulder pain in his upper trapezius and stiffness at night and upon waking up. He stated that he "messed up" his shoulder in a 1985 Humvee accident. Physical examination of the Veteran's right shoulder was normal. The VA examiner noted that the examination was medically consistent with the Veteran's statements describing his functional loss with repetitive use over time, but also concluded that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with use over time. In her opinion, the examiner concluded that the Veteran's shoulder condition was less likely than not incurred in or caused by active service. She explained that the Veteran did not have a diagnosable shoulder disability, but that what he was calling his shoulder condition was right neck or upper trapezius pain. The examiner stated that service treatment records regarding the motor vehicle accident did not mention a shoulder injury or pain, and that there were no service treatment records showing chronic neck or shoulder complaints. As for the requirement of a current disability, the Veteran has consistently reported pain and stiffness in his upper right trapezius that causes functional impairment, including being unable to exercise or complete chores such as yard work. Physical examinations have documented tenderness to his right upper trapezius and an abnormal appearance of his right shoulder. These reports and findings satisfy the requirements of a current disability. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). Regarding the requirement of an in-service injury, the 1985 in-service motor vehicle accident has been established. Service treatment records show that the Veteran sought treatment for neck, right shoulder, and lower back pain the day after the accident. Additionally, the Board notes that the Veteran has been granted service connection for his lower back and neck as a result of this accident. The remaining question is whether there is a nexus between the 1985 in-service motor vehicle accident and the Veteran's current right shoulder/upper trapezius pain. The Board finds that the most probative and persuasive evidence of record supports a grant of service connection. First, the Board finds that the Veteran is competent to report the nature, onset, and location of his right shoulder symptoms, as well as the effect of this pain on his ability to function. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has consistently and repeatedly reported right shoulder pain located in his upper right trapezius muscle. The day after the in-service motor vehicle accident, he reported right shoulder pain and stated that he thought he hit his right shoulder on the door of the vehicle. Turning to the nexus opinion from the September 2020 VA examiner, the Board accords this opinion slight probative weight, as the examiner failed to account for the Veteran's statements describing the onset, nature, and functional impact of his right shoulder pain. In addition, the examiner incorrectly stated that the Veteran's service treatment records did not mention shoulder pain or injury related to the 1985 motor vehicle accident. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). These portions of her opinion are given no probative weight. The Board does accord some weight to the examiner's conclusion that the Veteran's trapezius pain is a manifestation of a neck condition. Although the examiner did not provide a robust rationale, this observation tends to support the Veteran's contention that his right shoulder/trapezius pain, like his already service-connected neck disability, was the result of the in-service motor vehicle accident. In sum, the Veteran's credible statements about the onset, nature and continuity of his right shoulder symptoms, service treatment records documenting the Veteran's contemporaneous report of injuring his right shoulder in an in-service motor vehicle accident, and the award of service connection for his neck and lower back disabilities resulting from this accident, the Board finds that service connection for a right shoulder disability is warranted. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If the evidence for and against a claim is in approximate equipoise, the claim will be granted. A claim will be denied only if the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. VA amended the criteria for rating back disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. With regard to the low back disability, the substance of the criteria is unchanged; the amendments addressed changes in terminology and diagnosis which have no impact in this case. Diagnostic Code 5242 applies to degenerative arthritis of the spine, and Diagnostic Code 5243 applied to Intervertebral Disc Syndrome (IVDS). The new regulations expanded the applicability of Diagnostic Code 5242 to include degenerative disc disease, which had been part of Diagnostic Code 5243 for IVDS. The new regulations define IVDS under Diagnostic Code 5243 more narrowly, instructing that Diagnostic Code 5243 should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. The rating criteria, which are based on incapacitating episodes, remain the same under the new regulations. There is no indication that the Veteran suffers, or has suffered for the pendency of this appeal, from incapacitating episodes. As such, the Board will not evaluate the Veteran's lumbar spine disability under the previous or current Diagnostic Code 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm or guarding or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. In addition, the General Rating Formula for Diseases and Injuries of the Spine provides, in pertinent part, the following: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In Correia v. McDonald, 28 Vet. App. 158 (2016), the 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. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Board finds that based on the evidence, staged increased ratings are not warranted. The Veteran contends that he is entitled to a higher rating for his lower back disability. The Veteran's lower back disability is currently rated 40 percent disabling since September 14, 2017. The Veteran attended VA examinations for his back in September 2014, November 2019, and October 2020. The Board notes that these examinations' range of motion findings are not adequate because they do not fully comply with Sharp, 29 Vet. App. 26. Therefore, the Board may not rely on the range of motion findings to deny the Veteran's claim. Even so, the Board will discuss the other findings of the examinations, other than range of motion, relevant to the Veteran's claim. At the September 2017 VA examination, the Veteran reported symptoms including persistent pain and stiffness that was not completely controlled by medication and a physical therapy program. During flare-ups, the Veteran reported that he could not squat, do physical exercise, or carry heavy items. He described having difficulty bending down to tie his shoes due to pain and stiffness in his lower back. Physical examination, which was not conducted during a flare up, showed the Veteran had 50 degrees of forward flexion. The examiner did not estimate the Veteran's range of motion after repetitive use over time, or during flare-ups, but noted that the medical examination was neither consistent nor inconsistent with the Veteran's descriptions of his symptoms in these circumstances. On physical examination, the Veteran had muscle spasm without guarding of the thoracolumbar spine, but the muscle spasms did not result in an abnormal gait or abnormal spine contour. The Veteran reported occasionally using a brace to help him walk. No ankylosis was noted. At the October 2018 hearing, the Veteran testified that his back had worsened, and was causing him constant pain that was incompletely controlled by medication. During flare-ups, the Veteran described having difficulty getting out of bed, and his wife would have to massage his back to loosen the tight muscles in his lower back. Even on a normal day, he reported difficulty going up and down stairs, and stated that he could not squat, do physical exercise or carry things weighting 25 pounds or more. The Veteran noted that he had begun wearing mostly slip-on shoes because he had difficulty bending over to tie his shoes. In addition, he said that he could not remain in one position for an extended period of time. The Veteran told the examiner that his back pain began with any motion forward or backwards. At the November 2019 VA examination, the Veteran related that his back pain was relieved by non-steroidal anti-inflammatory medications and exacerbated by immobility and work around the house. According to the examiner, the Veteran denied flare-ups and functional loss. Range of motion testing showed the Veteran had 20 degrees of forward flexion with pain noted on non-movement. No additional limitation of motion was observed after repetitive use testing, but the examiner noted the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner estimated that the Veteran's range of motion would be limited to 10 degrees of forward flexion after repeated use over time. Physical examination showed no guarding or muscle spasm of the thoracolumbar spine. The examiner did not evaluate the Veteran's range of motion during flare-ups. The Veteran attended another VA examination in October 2020. At that examination, he reported daily flare-ups of his back pain caused by exertion that were relieved by rest. He stated that his back disability left him unable to bend and twist like he used to. On physical examination, the Veteran had 74 degrees of forward flexion with pain causing functional loss noted on examination. There was evidence of pain with weightbearing. The Veteran's forward flexion was unchanged after repetitive use testing. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time, but that pain, weakness, fatigability, or incoordination did not significantly limit his functional ability. The examination was conducted during a flare-up and the Veteran's forward flexion was to 70 degrees, and the examiner noted that pain significantly limited the Veteran's functional ability during flare-ups, but did not indicate where the Veteran's pain began on range of motion testing. On physical examination, muscle spasm and guarding were observed, but they did not result in an abnormal gait or abnormal spine contour. No ankylosis was noted. Since September 14, 2017, the Board finds that a 40 percent rating is warranted for the Veteran's back disability, as his symptoms have most closely approximated a limitation of forward flexion to less than 30 degrees, but not ankylosis. While the Veteran's range of motion has repeatedly been measured in excess of 30 degrees of forward flexion at times, on one occasion, it was measured at less than 30 degrees outside of a flare-up and not after repeated use over time. Although the Veteran is often unable to bend over and tie his shoes, and has had episodic difficulty getting out of bed, physical examinations have consistently documented no ankylosis and measured at least some forward flexion. Accounting for the Veteran's reports of symptoms, including stiffness, pain and difficulty (but not inability) in bending over, his symptoms most closely approximate a limitation of flexion to 30 degrees or less, warranting a rating of 40 percent since September 14, 2017. The Veteran's symptoms do not more closely approximate unfavorable ankylosis of his entire thoracolumbar spine or unfavorable ankylosis of the entire spine required for the 50 percent and 100 percent ratings, respectively. The Veteran has been consistently observed without any ankylosis of the spine, and has been able to extend his spine at least 5 degrees past zero. In sum, the Board finds that the most persuasive evidence is against a rating in excess of 40 percent since September 14, 2017. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.