Citation Nr: A25035697
Decision Date: 04/17/25	Archive Date: 04/17/25

DOCKET NO. 240212-416230
DATE: April 17, 2025

ORDER

An increased rating in excess of 10 percent for limitation of flexion of the left knee under Diagnostic Code (DC) 5260 is denied.

An increased rating in excess of 10 percent for limitation of flexion of the right knee under DC 5260 is denied.

An initial increased rating in excess of 10 percent for limitation of flexion of the left elbow under DC 5206 is denied.

An initial increased rating in excess of 10 percent for limitation of supination or pronation of the left elbow under DC 5213 is denied.

REMANDED

Entitlement to service connection for a left shoulder disability is remanded.

Entitlement to service connection for a right shoulder disability is remanded.

FINDINGS OF FACT

1. For the entire period on appeal, the Veteran's bilateral knee disability is manifested by pain and limited motion with flexion to, at worst, 130 degrees, and normal extension.

2. For the entire period on appeal, the Veteran has had painful limited motion of the left elbow, with flexion limited to 130 degrees, normal extension, and supination to greater than 30 degrees, and with no flail joint, false flail joint, malunion or nonunion of the radius or ulna.

3. For the entire period on appeal, the Veteran's left elbow disability was not manifested by pronation with motion lost beyond the last quarter of the arc, motion lost beyond the middle of the arc, or bone fusion with the left hand fixed near the middle of the arc or moderate pronation.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for limitation of flexion of the left knee are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260.

2. The criteria for a rating in excess of 10 percent for limitation of flexion of the right knee are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260.

3. The criteria for a rating in excess of 10 percent for limitation of flexion of the left elbow are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5206.

4. The criteria for a rating in excess of 10 percent for limitation of supination or pronation of the left elbow are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5213.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1998 to January 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2024 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran selected the Direct Review docket without a Board hearing in the AMA review system by submitting VA Forms 10182 (Decision Review Request: Board (Notice of Disagreement)) in February 2024. Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of January 27, 2024 - the date of the rating decision on appeal. See 38 C.F.R. § 20.301. If the Veteran submitted evidence that was added to the record after January 27, 2024, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

Finally, the January 2024 rating decision determined that the Veteran was diagnosed with bilateral shoulder pain and rotator cuff tear impingement/subacromial bursitis. The Board is bound by the above favorable finding and sees no reason to disturb it. 38 C.F.R. §§ 3.104(c).

1. An increased rating in excess of 10 percent for limitation of flexion of the left knee.

2. An increased rating in excess of 10 percent for limitation of flexion of the right knee.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007).

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disability is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

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 background factors listed in § 4.40 or 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. § 4.71(a) (musculoskeletal system) or § 4.73 (muscle injury); 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 § 4.71(a) [or 4.73] criteria.").

However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995).

The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. 

Under 38 C.F.R. § 4.71(a), DC 5257 for recurrent subluxation or instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (unrepaired, failed repair, or repaired) causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. 38 C.F.R. § 4.71a (2021).

Additionally, DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; this warrants a 20 percent rating. Finally, DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating.

Under DC 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71(a), DC 5260. 

Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71(a), DC 5261.

A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered.

Under DC 5262, a noncompensable rating is warranted for malunion with treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted for malunion requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted for malunion requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating is warranted for malunion requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A maximum 40 percent rating is warranted for nonunion with loose motion, requiring brace.

The Veteran seeks increased ratings in excess of 10 percent for limitation of flexion of the bilateral knees. Specifically, the Veteran reported experiencing "significantly decreased use and function." See 2/12/2024 VA Form 10182.

In this case, the record shows that the January 2004 rating decision granted service connection for the bilateral knee disability under DC 5260 for painful motion and rated it at 10 percent, effective May 12, 2003. Additionally, the Veteran is currently rated at 10 percent, effective January 17, 2001, and at 20 percent, effective May 12, 2003, under DC 5257 for the left and right knees. The question for the Board is whether higher or separate ratings are warranted during the period on appeal.

The Board notes the Veteran only expressed disagreement for the disability ratings under DC 5260; as such, the ratings under DC 5257 will not be discussed further.

After careful review of the competent and probative evidence, the Board finds that ratings in excess of 10 percent for limitation of flexion are not warranted.

Turning to the competent and relevant medical evidence, during the June 2023 VA examination, the Veteran was diagnosed with bilateral degenerative arthritis and patella tendonitis, and right knee status post meniscus repair. The Veteran reported daily moderate flare-ups that cause an inability to walk, bent, climb stairs, and stand for long periods. The objective examination showed normal bilateral knee flexion and extension. The Veteran had pain with flexion and extension, active motion, and non-weightbearing but did not result in functional loss. The examiner noted that passive range of motion testing was not performed as it would increase the risk of further injury. Additionally, the examiner noted no additional loss of function or range of motion after three repetitions. Further, the examiner noted that pain significantly limited the Veteran's functional ability with repeated use over a period of time and flare-ups; his flexion was limited to 130 degrees and normal extension. Moreover, the examiner noted no additional contributing factors to the Veteran's disability. The Veteran had tenderness and crepitus, and no joint instability, subluxation, effusion, locking, muscle atrophy, or ankylosis. The Veteran did not use assistive devices. Finally, as functional impact, the examiner opined that the Veteran cannot climb stairs, bend, walk, or stand for longer than five minutes without experiencing pain. See 6/16/2023 C&P Examination. The Board finds the June 2023 VA examination to be adequate for rating purposes, as it is based on an in-person examination of the Veteran, objective testing, and medical expertise.

VA treatment records for the period on appeal reference the Veteran's bilateral knee disability but are very general regarding treatment. As such, this evidence does not tend to show a factually ascertainable increase for the Veteran's bilateral knee disability.

After review of the competent and probative evidence, the Board finds that ratings in excess of 10 percent for limitation of flexion of the bilateral knees are not warranted. During the entire period on appeal, the Veteran has had at worst bilateral knee flexion limited to 130 degrees and normal extension. A compensable rating under Diagnostic Code 5260 requires limitation of flexion to 45 degrees. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board acknowledges the above-mentioned Veteran's contentions that he experiences "significantly decreased use and function." However, the weight of the evidence does not support a finding that the Veteran's disability picture due to functional loss/limitations is more nearly approximated by higher ratings. Moreover, considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent rating for limitation of flexion already compensate the Veteran for any functional loss due to pain affecting the bilateral knees. Deluca, 8 Vet. App. at 204-07. The Board finds that the Veteran's pain is contemplated and compensated by the current above-mentioned 10 percent rating for limitation of flexion, as under 38 C.F.R. § 4.59 the minimum compensable rating is to be assigned for the presence of pain only if there is no compensable limitation of motion in the joint.

Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). VA's General Counsel (GC) has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004 (Sept. 17, 2004). In that opinion, GC explained that 38 C.F.R. § 4.14, "[a]voidance of pyramiding," which provides that evaluation of the "same manifestation" under different diagnoses is to be avoided, did not preclude separate ratings for limitation of flexion and extension of the same knee joint, because such ratings are based on different symptomatology, i.e., a retrograde motion involving bending of the leg (limitation of flexion) and a forward motion to straighten the leg (limitation of extension). See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that painful motion warrants the assignment of the minimum compensable rating for limitation of motion of the affected joint).

The Board has considered whether a separate rating under DC 5258 is warranted; however, the June 2023 VA examination report weighs against a separate rating as it affirmatively indicated no history of effusion or frequent episodes of joint locking. Additionally, ratings under 5256, 5259, and 5263 are also not warranted as the Veteran, per the examination reports discussed above, does not have ankylosis, a history of semilunar cartilage disability, a meniscal disability, or genu recurvatum. Finally, as noted above, the June 2023 VA examination report noted painful extension. However, as discussed above, the evidence shows normal extension and a limitation of 10 degrees is required for the Veteran to be entitled to a 10 percent rating under Diagnostic Code 5261 for painful extension.

5. An initial increased rating in excess of 10 percent for limitation of flexion for a left elbow disability.

6. An initial increased rating in excess of 10 percent for limitation of supination or pronation for a left elbow disability.

VA regulations provide a standardized description of ankylosis and joint motion measurement under 38 C.F.R. § 4.71, Plates I and II. The anatomical position is considered as 0 degrees, with two exceptions, including that supination and pronation are with the arm next to the body, elbow flexed to 90 degrees, and the forearm in midposition 0 degrees between supination and pronation. Under Plate I, full elbow flexion is from 0 to 145 degrees; full forearm pronation is from 0 to 80 degrees; and full forearm supination is from 0 to 85 degrees. 38 C.F.R. § 4.71.

Under DC 5206, a noncompensable evaluation is assigned for flexion limited to 110 degrees. Limitation of flexion to 100 degrees is assigned a 10 percent rating. Limitation to 90 degrees is assigned a 20 percent rating. Limitation to 70 degrees is assigned a 20 percent rating for the minor side and 30 percent rating for the major side. Limitation to 55 degrees is assigned a 30 percent rating for the minor side and 40 percent rating for the major side. Limitation to 45 degrees is assigned a maximum 40 percent rating for the minor side and 50 percent rating for the major side. 38 C.F.R. § 4.71a.

Under DC 5207, limitation of extension to 45 degrees or 60 degrees is assigned a 10 percent rating. Limitation to 75 degrees is assigned a 20 percent rating. Limitation to 90 degrees is assigned a 20 percent rating for the minor side and a 30 percent rating for the major side. Limitation to 100 degrees is assigned a 30 percent rating for the minor side and a 40 percent rating for the major side. Limitation to 110 degrees is assigned a maximum 40 percent rating for the minor side and a 50 percent rating for the major side. Id.

Under 5208, a 20 percent rating is assigned for either side if forearm flexion is limited to 100 degrees and extension is also limited to 45 degrees. Id.

Under Diagnostic Code 5209, a 20 percent rating is assigned for a joint fracture with marked cubitus varus or cubitus valgus deformity or with ununited fracture of the head of the radius. A maximum 50 percent rating is assigned for other impairment of the flail joint of the minor side and 60 percent rating for the major side.

Under Diagnostic Code 5210, a 40 percent rating is assigned for nonunion of the radius and ulna with a flail false joint of the minor side and a 50 percent rating for the major side.

Diagnostic Code 5211 pertains to impairment of the ulna, and Diagnostic Code 5212 pertains to impairment of the radius.

Under DC 5213, impairment of supination or pronation may be rated based on loss of motion (bone fusion), limitation of pronation, or limitation of supination. Limitation of pronation is assigned a 20 percent rating where there is motion lost beyond last quarter of the arc so that the hand does not approach full pronation [or 60 out of 80 degrees]. Limitation of pronation is assigned a 20 percent rating for the minor side or 30 percent rating for the major side where pronation is lost beyond the middle of the arc [or 40 out of 80 degrees]. Limitation of supination is assigned a 10 percent rating for limitation to 30 degrees or less. Ratings of 20, 30, or 40 percent are available for loss of supination or pronation due to bone fusion, with fixation of the hand in certain specified positions. Id.; see also 38 C.F.R. § 4.71, Plate I.

In rating all forearm and wrist injuries, multiple impaired finger movements due to tendon tie-up, muscle or neve injury, are to be separately rated and combined, not to exceed the rating for loss of use of the hand. Id., at Note after DC 5213.

The Veteran contends entitlement to increased ratings in excess of 10 percent for his left elbow disabilities.

In this case, the record showed that the April 2003 rating decision granted service connection for a left elbow disability for painful limitation of flexion and assigned a 10 percent rating, effective January 17, 2001. Additionally, the August 2023 rating decision granted service connection for a left elbow disability, limitation of supination or pronation, and assigned a 10 percent rating, effective May 17, 2023.

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. In this case, the record clearly indicates that the Veteran is ambidextrous. See 6/16/2023 C&P Examination. As the left elbow is the most severely injured, the left elbow disability is rated as the major joint.

After careful review of the competent and probative evidence, the Board finds that ratings in excess of 10 percent for limitation of flexion and supination or pronation are not warranted.

Turning to the competent and relevant medical evidence, during the June 2023 VA examination, the Veteran reported worsening symptoms, such as pain, limited range of motion, and an inability to lift heavy objects for long periods. The Veteran reported daily moderate flare-ups that last for hours and cause an inability to lift heavy objects for long periods. The objective examination showed normal range of motion with pain with active flexion, extension, and forearm pronation, weightbearing, non-weightbearing, and on-rest, but it did not result in functional loss. The examiner stated passive range of motion was not performed as it would increase the risk of further injury. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function. The examiner stated that pain would significantly limit the Veteran's functional ability with repeated use over time and flare ups; flexion was limited to 135 degrees, normal extension, supination was limited to 75 degrees, and pronation was limited to 70 degrees. The Veteran had crepitus and no tenderness, muscle atrophy, or ankylosis. The Veteran did not use assistive devices. Finally, as functional impact, the examiner stated the Veteran would be unable to lift heavy objects for more than ten to fifteen minutes without experiencing pain. See 6/16/2023 C&P Examination. The Board finds the June 2023 VA examination to be adequate for rating purposes, as it is based on an in-person examination of the Veteran, objective testing, and medical expertise.

VA treatment records for the period on appeal reference the Veteran's left elbow disability but are very general regarding treatment. As such, this evidence does not tend to show a factually ascertainable increase for the Veteran's left elbow disability.

After review of the competent and probative evidence, the Board finds that ratings in excess of 10 percent for limitation of flexion (DC 5206) and supination or pronation (DC 5213) are not warranted. During the entire period on appeal, the Veteran has had at worst left elbow flexion limited to 135 degrees and normal extension. A compensable rating under Diagnostic Code 5206 requires limitation of flexion to 100 degrees. Additionally, regarding DC 5213, there is no suggestion that his pronation was limited to less than the quarter or middle of the arc as required for a 20 percent rating under DC 5213. In this regard, only one rating may be assigned under DC 5213, and he has been assigned a rating for painful motion of the forearm. Moreover, he has retained supination to well beyond 30 degrees. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

The Board acknowledges the above-mentioned Veteran's contentions that he experiences worsening symptoms, such as pain, limited range of motion, and an inability to lift heavy objects for long periods. However, the weight of the evidence does not support a finding that the Veteran's disability picture due to functional loss/limitations is more nearly approximated by higher ratings. Moreover, considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent ratings already compensate the Veteran for any functional loss due to pain affecting the left elbow. Deluca, 8 Vet. App. at 204-07. The Board finds that the Veteran's pain is contemplated and compensated by the current above-mentioned 10 percent ratings, as under 38 C.F.R. § 4.59 the minimum compensable rating is to be assigned for the presence of pain only if there is no compensable limitation of motion in the joint.

The Board has considered whether separate ratings are warranted. However, since the evidence of record does not demonstrate that the Veteran has ankylosis, impairment of the flail joint, marked cubitus varus or cubitus valgus deformity, ununited fracture of the head of the radius, nonunion of the radius and ulna, impairment of the ulna, or impairment of the radius, he is not entitled to higher evaluations under Diagnostic Codes 5205 (ankylosis), 5209 (impairment of the flail joint, marked cubitus varus or cubitus valgus deformity, or ununited fracture of the head of the radius), 5211 (impairment of the ulna), or 5212 (impairment of the radius). There is simply no evidence of such manifestations. In this regard, based on the aforementioned range of motion findings, the record shows that the Veteran's left elbow is not fixated or immobile. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Moreover, the June 2023 VA examiner specifically reported that the Veteran had no ankylosis, flail joint, joint fracture, ununited fracture, or malaligned fracture. Therefore, separate or higher evaluations are not warranted under Diagnostic Codes 5205, 5209, 5211, or 5212.

Finally, as noted above, the June 2023 VA examination report noted painful extension. However, as discussed above, the evidence shows normal extension and a limitation of 45 degrees is required for the Veteran to be entitled to a 10 percent rating under Diagnostic Code 5207 for painful extension.

REASONS FOR REMAND

1. Service connection for a left shoulder disability.

2. Service connection for a right shoulder disability.

In this matter, a remand is necessary to correct a duty to assist error that occurred prior to the January 2024 rating decision on appeal. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

The Veteran contends service connection for a bilateral shoulder disability. Specifically, the Veteran reported that his bilateral shoulder disability was caused by work parties and pushups, which required damaging, repetitive movement of weight that lead to shoulder pain and strain. See 1/26/2024 VA 21-526EZ.

Post service treatment records showed that the Veteran was diagnosed with bilateral shoulder pain and rotator cuff tear impingement/subacromial bursitis. See 1/26/2024 CAPRI, at page 2.

As noted above, the Veteran was diagnosed with bilateral shoulder pain and rotator cuff tear impingement/subacromial bursitis, and the evidence, to include the Veteran's lay statements, has suggested that his bilateral shoulder disability had its onset during military service. The Board finds that the Veteran's description of his physical activities during service, to include work parties and pushups, is consistent with the places, types, and circumstances of his military duties during service. 38 U.S.C. § 1154(a).

The AOJ did not obtain a VA examination and/or opinion regarding whether the Veteran's bilateral shoulder disability is due to service. However, based on the evidence of record, to include the Veteran's lay statements, the Board finds that a VA examination is required to make a decision regarding nature and etiology of the Veteran's bilateral shoulder disability.

As such, on remand, the AOJ should obtain an in-person VA examination regarding the claim for service connection for a bilateral shoulder disability to establish whether the Veteran's disability is related to service.

These matters are REMANDED for the following action:

Schedule the Veteran for a VA examination with an appropriate clinician regarding the Veteran's bilateral shoulder disability. A copy of the clams file, to include this Remand, is to be reviewed to become familiar with the Veteran's pertinent medical history.

After review of the claims file, the examiner must address:

(a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current bilateral shoulder disability is related to an in-service injury, event, or disease.

**The examiner must provide specific evidence of record to support his/her conclusions, such as references from this Veteran's relevant medical history and/or medical literature. THE EXAMINER CANNOT RELY SOLELY ON THE ABSENCE OF DOCUMENTED TREATMENT.

In doing so, the examiner must address the Veteran's contentions that his bilateral shoulder disability was caused by work parties and pushups, which required damaging, repetitive movement of weight that lead to shoulder pain and strain. See 1/26/2024 VA 21-526EZ.

The examiner is reminded that the competent and probative evidence only needs to be in approximate balance (or nearly equal).**

A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical, should be considered. If medical literature is referenced, please provide a copy of it or a full citation that allows general access. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).

 

 

M. MILLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.F.

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.