Citation Nr: 22048752 Decision Date: 08/26/22 Archive Date: 08/26/22 DOCKET NO. 18-55 266A DATE: August 26, 2022 ORDER An initial rating in excess of 10 percent for a neck disorder is denied. REMANDED Service connection for a right elbow disorder. Service connection for a right shoulder disorder. Service connection for a right knee disorder. Service connection for a left knee disorder. Prior to January 21, 2020, an initial rating in excess of 30 percent for a psychiatric disorder, to include depression, and in excess of 50 percent thereafter. FINDING OF FACT The Veteran's neck disorder manifested limitation of motion to no worse than forward flexion to 45 degrees with pain during movement. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a neck disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2004 to April 2005, March 2008 to June 2008, December 2009 to June 2010, August 2011 to February 2012 and March 2012 to October 2012. He had additional periods of Reserve service. The case is on appeal from a February 2017 rating decision. In May 2020, the Veteran testified at a Board hearing. In a February 2022 decision, the Board dismissed three claims as withdrawn, and granted service connection for lumbar strain and scars of the neck. At that time, the Board also remanded the remaining five claims for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 10 percent for a neck disorder. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For the cervical disorder, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. The Board notes VA revised the rating criteria for evaluating spine disorders, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020, as amended). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. Here, the changes to the rating criteria evaluating disorders of the spine have no impact on the Veteran's cervical spine rating. Facts Following the July 2016 claim, the Veteran was afforded a January 2017 VA examination in which he was diagnosed with a cervical strain. No flare-ups were reported by the Veteran. The examination revealed normal forward flexion and extension. No further additional loss of function or range of motion was found after repetition. The examiner indicated the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. There was no evidence of pain with weight bearing. The examiner stated the Veteran has intervertebral disc syndrome (IVDS); however, he has not had any episodes of acute signs and symptoms due to IVDS which required bed rest prescribed by a physician. The Veteran submitted an October 2019 statement which indicated increasing neck symptoms, to include constant pain and stiffness, crepitus and the required use of medication to relieve his pain. Additionally, he was afforded a May 2020 Board hearing in which he stated his neck condition has become more severe since the last examination. He similarly noted pain, stiffness, crepitus, muscle spasms and flare-ups, along with difficulty moving. The Veteran stated his neck pain has increased to the point where he is forced to limit all neck movements. Pursuant to the Board's February 2022 remand, the Veteran was afforded a June 2022 VA examination in which he reported flare-ups, including spasms approximately 1 to 2 times per month and hand numbness daily. He stated such spasms are severe and can last around 8 hours. The Veteran reported his neck flare-ups are precipitated by turning his head quickly and sleeping in odd positions. He stated the flare-ups are relieved by taking Flexeril and Ibuprofen, along with use of a water pillow and traction. Upon examination, the examiner found normal range of motion. She indicated the Veteran experiences pain throughout testing. She reported during flare-ups and after repetition, the Veteran has no reduction in his range of motion. Moreover, the examiner indicated the Veteran has no pain with weight bearing, but has pain during nonweight-bearing, active and passive motion. She stated when the Veteran has prolonged sitting behind his desk during work or when traveling, this can aggravate his neck pain. An MRI of the cervical spine associated with the VA examination was obtained and revealed no abnormality in the cervical spine. Additionally, the Board notes the Veteran has received VA treatment for his neck disorder at the VA Medical Center (VAMC). A recent May 2021 VA record indicated the Veteran has normal neck flexion and extension with no paraspinal tenderness. Analysis The Board determines the Veteran's neck disorder does not show forward flexion of the cervical spine approximating 30 degrees or less. As such, a rating in excess of 10 percent is not supported during the appeal period. The Veteran consistently reported pain in his neck, including in an October 2019 statement and during the May 2020 Board hearing. Additionally, symptoms of stiffness, crepitus and muscle spasms were indicated. While the record supports that the Veteran experienced pain and other symptoms during the appeal period, his limitations are contemplated by the current 10 percent rating. In this regard, the medical evidence does not support a neck disorder which approximated forward flexion to 30 degrees, even when considering his pain, stiffness, muscle spasms and flare-ups. Further, the January 2017 VA examiner indicated the examination revealed normal forward flexion and extension with no additional loss of function or range of motion after repetition. Moreover, the June 2022 VA examiner reported the examination revealed normal range of motion with no reduction in motion during flare-ups and after repetitive testing. In sum, the Board finds an initial rating in excess of 10 percent for the Veteran's neck disorder is not warranted. The evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an initial rating in excess of 10 percent for the Veteran's neck disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding other claims for additional development, remand is not necessary for the issue decided herein, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Service connection for a right elbow disorder. The Veteran contends that his right elbow disorder is related to service, to include his in-service duties. The Veteran submitted a February 2018 notice of disagreement (NOD), in which he stated his right elbow condition had its onset during service and was related to working in construction which involved heavy labor, including block laying, cement finishing, construction of steel buildings and roofing. He reported he was required to perform repetitive actions, to include swinging a hammer, along with push-ups during bi-annual testing. During the May 2020 hearing, the Veteran similarly indicated his right elbow disorder is causally related to service, to include his required duties working as a builder. As noted above, the claim was remanded by the Board in February 2022 for further development, to include a VA examination to determine the etiology of the right elbow disorder. The Veteran was afforded a June 2022 VA examination in which the examiner opined the right elbow disorder is not causally related to service. She indicated she reviewed the service treatment records (STRs) and an active duty physical examination in 2006, along with a post-deployment examination in 2010, made no mention of any right elbow pain, condition or injury. The examiner further stated in 2014, the Veteran received treatment at the VAMC for an annual physical examination and was again seen in 2016 through the VA. She reported both such examinations were negative for any mention of right elbow pain or an elbow condition. She noted it is not until 2017 during the VA examination that the Veteran received treatment for a right elbow disorder and was diagnosed with a strain. While the June 2022 VA examiner reported that examinations in 2006, 2010 and 2014 made no mention of a right elbow disorder, the Board finds that an earlier VA treatment record from 2008 indicated consistent pain in the Veteran's right elbow. In this regard, a November 2008 VA treatment record showed the Veteran reported musculoskeletal aches and pains, to include in his right elbow, which were present since he was deployed. This record is shortly after his second active duty period which ended in June 2008. Further, the record was not addressed by the June 2022 examiner, and such provides strong support that the onset of the Veteran's right elbow condition was during service. Thus, the Board finds an additional VA opinion is warranted to determine whether the Veteran's right elbow disorder is related to service. 2. Service connection for a right shoulder disorder. The Veteran asserts that his right shoulder disorder is related to service, to include his in-service duties. The Veteran submitted a February 2018 NOD which indicated his right shoulder condition became noticeable to the point where it caused frequent pain while he was deployed to Afghanistan in 2010. He stated he was required to perform heavy lifting, frequently above shoulder level. He reported the workload, combined with the requirements of physical training in service, resulted in his right shoulder disorder. During the May 2020 hearing, the Veteran stated his right shoulder condition had its onset during service and subsequently worsened due to his active service duties. In February 2022, the Board determined a VA examination is required to determine the etiology of the Veteran's right shoulder disorder. The Veteran was afforded a June 2022 VA examination in which the examiner opined the right shoulder disorder is not causally related to service. She indicated she reviewed the STRs through his multiple active duty tours and a physical examination in 2006, along with a post-deployment examination in 2010 showed no mention of any shoulder pain, condition or treatment. The examiner noted the Veteran gave a history of a shoulder injury in 2012; however, the examiner reported the records show no mention of shoulder pain in 2010 and 2011 pre and post deployment. Further, the examiner indicated in 2012, the Veteran was cleared for flight duties and in 2013, he reported chronic neck pain with no mention of right shoulder pain. The examiner reported the Veteran's active service ended in 2012 and in 2014, he received treatment at the VA Medical Center for reported right shoulder pain. She noted the Veteran reported hurting his shoulder from lifting and that he has had shoulder pain for quite some time. However, she stated the record did not specify when the injury occurred or how long the Veteran's shoulder pain has been ongoing. The examiner further noted that the same VA record indicated the past medical history was negative for any shoulder pain or injury. As such, the June 2022 VA examiner concluded it is less likely than not that the Veteran's right shoulder disorder was incurred during service. The Board notes the June 2022 examiner indicated records from 2006, 2010 and 2011 showed no shoulder pain, condition or treatment and that in 2014, the Veteran received shoulder treatment at the VA Medical Center. However, an earlier December 2007 VA treatment record indicated the Veteran had pain in his shoulders at that time, including ongoing aches. Further, the January 2014 VA record noted by the examiner showed the Veteran sought treatment for right shoulder pain slightly over one year following his last active duty period. Moreover, the January 2014 VA record indicated the Veteran has had right shoulder pain for "quite some time" and the examiner reported his shoulder pain is in the anterior right shoulder area. Based on the supportive VA treatment records from December 2007 and January 2014, the Board finds an additional VA opinion is required to determine whether the Veteran's right shoulder disorder is related to service. 3. Service connection for a right knee disorder. 4. Service connection for a left knee disorder. The Veteran contends that his bilateral knee disorders are related to service. He asserts that the strain caused by his in-service duties led to the current knee conditions. In the October 2019 statement, the Veteran reported that his knee disorders are related to his length of service, as well as the demands placed on him during service. In the May 2020 hearing, the Veteran testified that his knee pain began while deployed to Iraq from 2004 to 2005. He stated while deployed, he completed approximately 10,000 miles while standing in the turret of a Hummer riding across rough terrain. He reported stress was placed on his knees throughout the deployment. In February 2022, the Board determined a VA examination is required to determine the etiology of the Veteran's bilateral knee disorders. The Veteran was afforded a June 2022 VA examination in which the examiner opined the knee conditions are not related to service. She stated the Veteran had examinations in 2006 and 2010 which made no mention of any knee pain, condition or treatment. She noted in 2014 and 2016, he received treatment through the VA Medical Center and such treatment was also silent for knee complaints. The Board finds the VA treatment records show a December 2007 record indicated the Veteran reported aches in his knees. A July 2010 record noted the Veteran had asymmetric reflexes in his knees. Further, a January 2014 VA treatment record slightly over a year after the Veteran's last active duty period indicated he had occasional knee pain. The Board finds the June 2022 VA examiner did not adequately address these reports of knee pain found in the VA treatment records and which were dated near the time of the Veteran's active duty periods. Based on such VA treatment records, the Board finds an additional VA opinion is necessary to determine whether the Veteran's bilateral knee disorders are related to service. 5. Prior to January 21, 2020, an initial rating in excess of 30 percent for a psychiatric disorder, to include depression, and in excess of 50 percent thereafter. The Veteran was most recently afforded a VA psychiatric examination in January 2020. The examiner indicated his psychiatric disorder causes occupational and social impairment with occasional decrease in work efficiency. She noted symptoms of depression, chronic sleep impairment, impaired judgment, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The examiner further indicated the Veteran has problems concentrating. The Veteran testified in the May 2020 Board hearing to worsening symptoms. In February 2022, the Board remanded the claim for an additional VA examination to determine the severity of the Veteran's psychiatric disorder. Thereafter, a VA psychiatric examination was scheduled for June 2022; however, the Veteran failed to attend the examination. The Board finds that remand is warranted to schedule the Veteran for an additional VA examination to assess the severity of his psychiatric disability. While the Veteran failed to attend the June 2022 psychiatric examination, the evidence shows he did attend a separate VA examination in June 2022 several days prior. Thus, in light of this evidence, and to fully fulfill VA's duty to assist with respect to obtaining examinations or opinions, the Veteran will be afforded another VA examination. The Board notes when a veteran fails to report for a scheduled examination, his claims may be rated based on the evidence of record. 38 C.F.R. § 3.655; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (finding that the duty to assist is not a one-way street and that Veterans should provide information or materials relevant to their claim to VA so that VA may assist in development of the claim). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate medical professional to determine the etiology of the Veteran's right elbow disorder. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's right elbow disorder had its onset during, or is otherwise related to, service. The examiner should address the November 2008 VA treatment record which supports that the Veteran had aches and pains in his right elbow since a deployment. 2. Obtain a VA medical opinion from an appropriate medical professional to determine the etiology of the Veteran's right shoulder disorder. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's right shoulder disorder had its onset during, or is otherwise related to, service. The examiner should address the December 2007 and January 2014 VA treatment records discussed above which support the Veteran's right shoulder claim. 3. Obtain a VA medical opinion from an appropriate medical professional to determine the etiology of the Veteran's bilateral knee disorders. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral knee disorders had their onset during, or are otherwise related to, service. The examiner should address the December 2007, July 2010 and January 2014 VA treatment records discussed above which support the bilateral knee claims. 4. Schedule the Veteran for a VA examination by an appropriate medical professional to assess the severity of his service-connected psychiatric disorder. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.