Citation Nr: 1736566	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  08-30 629	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for a left shoulder disability, to include as secondary to the service-connected neck disability.

2.  Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the cervical spine (neck disability).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from June 1978 to June 1981 and from September 1985 to August 2005.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified in January 2011 before a Veterans Law Judge (VLJ) at a hearing in Washington, D.C.  The VLJ who conducted the January 2011 hearing is no longer employed by the Board.  In August 2017, the Veteran indicated in writing that he does not wish to appear at another hearing.

This claim was previously before the Board in March 2014, April 2015 and March 2016, at which time the Board remanded it for additional development.  The requested development has been completed, and the claim is properly before the Board for appellate consideration.


FINDINGS OF FACT

1.  The Veteran's left shoulder arthritis had its onset in service.

2.  The neck disability is characterized by forward flexion of the cervical spine to 45 degrees and a combined range of motion of the cervical spine of 275 degrees.



CONCLUSIONS OF LAW

1.  Arthritis of the left shoulder was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).

2.  The criteria for an evaluation in excess of 10 percent prior for degenerative joint disease of the cervical spine (neck disability) have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.7, 4.71a, Diagnostic Codes 5242 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016).  Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The duty to notify has been met.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187.

With respect to the duty to assist in this case, the Veteran's service treatment records (STRs), VA treatment records, post-service military treatment records, and private treatment records have been obtained and associated with the claims file.  The Veteran was also provided with VA examinations in conjunction with his claims.  Overall, the examiners provided well-reasoned rationales for the opinions.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Veteran was afforded a hearing before a VLJ in which he presented oral argument in support of his claims.

Under the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59 (2016).  The Board finds no basis under that case for remanding for a new examination for the neck disability.  The Board notes that the Correia case involved a claim for an increased rating for knee disorders, as opposed to the current case which involves a cervical spine disability.  The September 2016 examination report states that there was no evidence of pain on weight bearing, and therefore it appears that the testing was with weight bearing.  There is no indication from the record that the results for the cervical spine would have been different without weight bearing or if the testing was passive instead of active. 

II.  Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016).  Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.  38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

To establish service connection for a disability, there must be competent evidence of the following:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  In addition, service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service.  See 38 C.F.R. §§ 3.307, 3.309 (2016).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54. 

The STRs show that in April 1999 the Veteran had abrasions of his shoulders after a motorcycle accident.  In June 2002 the Veteran complained of persistent left shoulder pain that had not been relieved with medication or physical therapy.  The Veteran complained of intermittent left shoulder pain in February 2003 and was diagnosed with probable nerve irritation.  In August 2003 the Veteran complained of a constant ache in the left shoulder blade.  He was diagnosed with myofascial pain with trigger point.  At a May 2005 examination it was noted that the Veteran had had physical therapy related to his left shoulder and that the symptoms were related to dislocated ribs.  

The Veteran filed this claim in April 2006, after serving more than 20 years on active duty.  He is diagnosed as having left shoulder arthritis and the Board finds both competent and credible his report of having left shoulder problems since service.  Thus, resolving all reasonable doubt in his favor, the Board finds that service connection for left shoulder arthritis is warranted.

III.  Higher Evaluation

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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016).  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 for that rating.  38 C.F.R. § 4.7 (2016).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2016).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).
Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection is most probative of the degree of disability existing at the time that the initial rating was assigned, and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.  In addition, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (diagnostic codes that provide ratings solely based on loss of range of motion must consider functional loss and factors of joint disability attributable to pain).

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based (IVDS) on Incapacitating Episodes).  Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent disability rating is assigned 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; 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  

Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The normal combined range of motion of the cervical spine is 340 degrees.  See also Plate V, 38 C.F.R. § 4.71a. 

The Veteran had an examination arranged through VA QTC Services in September 2006 at which the examiner diagnosed him with degenerative joint disease of the cervical spine based on x-rays and noted that the Veteran had pain and reduced range of motion.  On examination there was no evidence of tenderness or ankylosis.  Range of motion was flexion to 45 degrees, extension to 45 degrees, left and right lateral flexion to 45 degrees, and left and right rotation to 80 degrees.  Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.

At December 2010 treatment the Veteran complained of stiffness of the cervical spine that could benefit from manual therapy.  A January 2011 MRI showed multilevel cervical spondyloarthropathy with no significant thoracic spondyloarthropathy.  At January 2011 treatment the Veteran complained of neck pain that he rated as 5 out of ten.  Range of motion of the neck was limited by 50 percent.  He had difficulty performing some activities of daily living.  The Veteran had chiropractic treatment for his neck in January 2011.  The Veteran complained of right side neck pain at February 2011 treatment.

The Veteran had a VA examination in March 2011 at which he reported pain on a weekly basis depending on factors such as posture or sudden movements.  The episodes were not incapacitating.  Flare-ups lasted for a day and were treated with anti-inflammatory medication.  Range of motion was active motion to 45 degrees, extension to 35 degrees, left and right lateral flexion to 35 degrees, and left and right lateral rotation to 80 degrees.  There was no objective evidence of pain on active range of motion or after repetitive motion and not additional limitations after three repetitions of range of motion.  The diagnosis was moderate cervical spondyloarthropathy with mild stenosis at C5-C7 with normal clinical neurological examination.  The Veteran described mild impairment in the performance of recreational activities due to pain.  The examiner noted that there would be increased absenteeism from work due to pain.

The Veteran had a VA examination in May 2015 at which he was noted to have diagnoses of spondyloarthropathy of the cervical spine and degenerative disc disease of the cervical spine.  Range of motion was forward flexion to 40 degrees, extension to 40 degrees, left and right lateral flexion to 40 degrees, and left and right lateral rotation to 70 degrees.  There was no evidence of pain on weight bearing or evidence of localized tenderness or pain on palpation.  There was no additional loss of function or range of motion after three repetitions.  In addition, there was not ankylosis of the spine, and the Veteran did not have IVDS requiring bed rest.  

The Veteran had a VA examination in September 2016.  He said that his cervical spine condition caused him to be assigned different duties at work as well as increased tardiness, impaired mobility, and increased absenteeism.  He had problems with lifting and carrying and pain.  Range of motion was forward flexion to 45 degrees, extension to 30 degrees, right lateral flexion to 45 degrees, left lateral flexion to 35 degrees, right lateral rotation to 70 degrees, and left lateral rotation to 50 degrees.  There was no evidence of pain on weight bearing or localized tenderness or pain on palpation.  In addition, there was no loss of function or range of motion after three repetitions or ankylosis.

Reviewing the evidence of record, the Veteran does not qualify for an evaluation in excess of 10 percent for his neck disability because forward flexion of the cervical spine has been greater than 30 degrees, and the combined range of motion has been greater than 170 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242.  At the most recent VA examination in September 2016, forward flexion was to 45 degrees and the combined range of motion was 275 degrees.  There also was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour.  See id.  January 2011 treatment notes indicate that range of motion of the cervical spine was decreased by 50 percent. This would be sufficient to qualify the Veteran for an increased evaluation.  However, at the VA examination in March 2011 the range of motion was of a degree that would not qualify for an evaluation in excess of 10 percent.  Forward flexion was to 35 degrees and the combined range of motion was to 310 degrees.  See id.  The January 2011 finding appears to therefore have been due to an acute episode, and it is not consistent with the record as a whole in regards to range of motion.  Furthermore, the January 2011 treatment record does not indicate that range of motion was actually measured, and therefore it appears to be based on an estimate.  The record does not show IVDS, and therefore Diagnostic Code 5243 is not applicable.  See 38 C.F.R. § 4.71a.

The Board has also considered whether increased evaluations could be assigned on the basis of functional loss due to pain, along with limitation of motion.  38 C.F.R. §§ 4.40, 4.45.  The Veteran experiences pain in his neck.  However, any functional impairment in the feet has already been considered by the assigned evaluations.  Generally, the degrees of disability specified are considered adequate to compensate for loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.  Furthermore, at the VA examinations there was no loss of function or range of motion on repetitive testing.  The evidence does not establish functional loss not contemplated by the rating assigned by this decision for the aggravation of the Veteran's neck disability.  Therefore, increased evaluations are not justified under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca.  

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, although the record shows some impact on job related activities due to service-connected neck disability, the September 2016 VA examination report indicates that the Veteran is employed.  Therefore, the record does not show that he is unemployable as a result of his service-connected disabilities.  

Finally, in light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to staged or to additional staged ratings for his service-connected neck disability, as the Court indicated can be done in this type of case.  Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board.


ORDER

Service connection for left shoulder arthritis is granted.

An initial evaluation in excess of 10 percent for degenerative joint disease of the cervical spine (neck disability) is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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