Citation Nr: 18123994
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 15-25 858
DATE:	August 7, 2018
ORDER
Entitlement to service connection for a left shoulder rotator cuff disease is granted.
Entitlement to service connection for degenerative disc disease and arthritis of the thoracolumbar spine is granted.
Entitlement to service connection for right knee patellofemoral syndrome is granted.
A rating of 20 percent, but no higher, for left ankle tendon injury and fracture with internal fixation is granted.
FINDINGS OF FACT
1.  The evidence of record favors a finding that the Veteran’s left shoulder rotator cuff disease is related to his period of active duty service.  
2.  The evidence of record favors a finding that the Veteran’s degenerative disc disease and arthritis of the thoracolumbar spine is related to his period of active duty service.  
3. The evidence of record favors a finding that the Veteran’s right knee patellofemoral syndrome is related to his period of active duty service.  

4.  For the entire period on appeal, the Veteran’s left ankle disability was manifested by marked limitation of motion but did not manifest as ankylosis, malunion, or deformity; astragalectomy of the left ankle is not shown.
CONCLUSIONS OF LAW
1. The criteria for service connection for left shoulder rotator cuff disease are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
2. The criteria for service connection for degenerative disc disease and arthritis of the thoracolumbar spine are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
3. The criteria for service connection for right knee patellofemoral syndrome are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
4. The criteria for a 20 percent rating, but no higher, for left ankle tendon injury and fracture with internal fixation are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§3.321, 4.3, 4.7, 4.45, 4.59, 4.71, Plate II, 4.71a, Diagnostic Code 5271 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from May 1976 to May 1996.
The Board notes that although the Veteran’s June 2015 VA Form 9 limited his appeal to the issue of entitlement to service connection for a low back disability, VA continued to adjudicate the issues of service connection for left shoulder and right knee disabilities, as well as entitlement to an increased rating for a left ankle disability by providing the Veteran with an October 2016 VA examination for his left ankle disability and subsequently issuing a September 2017 supplemental statement of the case (SSOC), such that the Veteran has reason to believe that all issues remain on appeal.  See Percy v. Shinseki, 23 Vet. App. 37 (2009).
Service Connection
1-3. Entitlement to service connection for left shoulder rotator cuff disease, degenerative disc disease and arthritis of the thoracolumbar spine, and right knee patellofemoral syndrome.
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.
Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).
The Veteran asserts his current left shoulder, back and right knee disabilities are specifically related to injuries he sustained performing his duties with military police and in special operations during his twenty-year career in the Army.
With respect to current disability, the Veteran was diagnosed with “markedly severe discogenic degenerative disease at L1-2 and L5-S1” at a November 22, 2002 VA assessment, at the age of 45.  Subsequent VA examination reports note the presence of degenerative disc disease of the lumbar spine.  See April 2015 VA examination report.  He was noted to have left shoulder rotator cuff disease on August 27, 2013 by Dr. J.R.P.  At a VA knee examination dated in June 2012, a VA examiner diagnosed the Veteran with right knee patellofemoral syndrome, and testing showed functional impairment include limitation of motion and interference with sitting, standing and weight bearing.  Accordingly, current disabilities for the back, left shoulder, and right knee are identified in the record. 
The Veteran has contended that he tore his rotator cuff on at least three separate occasions in service, once in artillery while lifting a heavy ammunition can, once during the first Gulf War, and once while doing seated military presses while working out.  See October 2012 Correspondence.  The Veteran also contends that he injured his back on multiple occasions in service; first, while carrying two rounds of artillery weighing 98 pounds from the ammunition truck to the gun and falling, and second, on a night airdrop during training.  See October 2012 Correspondence.  With respect to his right knee, although the Veteran has at times argued his knee is aggravated by his service-connected ankle disability, he has also indicated that he sustained many injuries to his knee in service, through wear and tear as a parachutist, and in performing trainings and missions in his special operations teams.  The Veteran’s service treatment records do not document treatment for the shoulder, back or knee, but the Veteran has specifically addressed this fact, noting that he only received treatment for severe medical issues such as broken bones or ruptures, and did not report any other injuries, instead working through them to satisfy his duties.  The Veteran’s DD-214 confirms service as a military police officer and a cannon crewmember in service, and he is the recipient of the parachutist badge, drill sergeant badge, and the Bronze Star Medal.  The Board does not call into question that the Veteran sustained injuries to his shoulder, back or right knee during service that were unreported. 
The key question at issue is whether the current disabilities identified above are at least as likely as not to the injuries sustained during the Veteran’s military career.
The Board finds the medical opinion of Dr. M.P. most probative in answering this question.  In an October 2013 statement, Dr. M.P. indicated that he knew the Veteran for 17 years, and had been his personal physician for over five years.   Dr. M.P. attested to the fact that the Veteran does not report for treatment often, only reporting for care when it is absolutely necessary.  Dr. M.P. discussed the Veteran’s service, his claimed injuries sustained therein, and concluded that the constant wear and tear of activities such as parachute landing falls, rappelling, and the carrying of 50 to 60-pound ruck sacks as well as the rigors of Special Operations, resulted in the Veteran’s injuries to his back, shoulders, and lower extremities.
The Board finds this opinion to be probative, as it addresses the Veteran’s contentions, considers the Veteran’s competent report of history, and has some support in the record.  Indeed, with respect to the spine in particular, the Veteran was noted to have severe discogenic degenerative disease at L1-2 and L5-S1 at a November 22, 2002 VA assessment, at the age of 45, just six years following his retirement from service.  
There are no medical opinions of record contrary to Dr. M.P.’s opinion that the Veteran’s left shoulder disability was related to service.  While VA medical opinions of record do run contrary to Dr. M.P.’s findings, the Board places little to no probative value on them, as they are all largely based on an observation that the Veteran’s service treatment records were silent for complaints of shoulder, back or knee problems.  As noted above, the Veteran has competently and credibly reported that he simply did not seek treatment for such injuries in service, and continues to be reluctant to receive care.  
Based on the evidence currently of record, the Board finds that it is at least as likely as not that the Veteran’s left shoulder rotator cuff disease, degenerative disc disease and arthritis of the thoracolumbar spine, and patellofemoral syndrome of the right knee are all related to injuries sustained in performance of his duties during active duty service.  The benefits sought on appeal are granted.
4. Entitlement to a rating in excess of 10 percent for status post left ankle tendon injury and fracture with internal fixation.
Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. §§ 3.102, 4.3. 
The Veteran’s entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  
For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment.  38 C.F.R. §§ 4.40, 4.45.  The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determines whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.   These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995).
With the foot at a 90-degree angle to the ankle as the neutral or starting position, a normal (full) range of ankle motion is defined as follows: from 0 degrees to 20 degrees of dorsiflexion and from 0 degrees to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. 
Under 38 C.F.R. § 4.71a, Diagnostic Code 5271 limitation of motion of an ankle warrants a 10 percent rating when moderate and 20 percent when marked. Full dorsiflexion is to 20 degrees and full plantar flexion is to 45 degrees. 38 C.F.R. § 4.71, Plate II. 
The Board notes that the words “moderate” and “marked” are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.”    See 38 C.F.R. § 4.6.
Facts
In connection with his January 2012 increased rating claim, the Veteran underwent a VA ankle examination in June 2012.  He stated he had pain, stiffness, and loss of mobility, and sharp to dull intermittent pain with walking, running, and standing.  He denied experiencing flare-ups.  Range of motion testing showed left ankle plantar flexion to 30 degrees and left ankle plantar dorsiflexion to 5 degrees with pain.  The Veteran was able to perform repetitive-use testing with three repetitions without additional loss of range of motion.  There was no localized tenderness or pain on palpation of the joints or soft tissue.  There was no evidence of ankylosis, nor evidence of ankylosis of the subastragalar or tarsal joint; malunion of os calcis or astragalus, or astragalectomy.
He underwent another VA ankle examination in October 2012.  Range of motion testing showed left ankle plantar flexion to 30 degrees with painful motion beginning at 30 degrees, and left ankle plantar dorsiflexion to 5 degrees with painful motion beginning at 5 degrees.  He was able to perform repetitive-use testing with three repetitions without additional loss of range of motion.  There was no ankylosis of the left ankle.
He underwent a VA ankle examination in October 2016.  He did not report flare-ups of his ankle, but did report functional loss to include loss of dorsiflexion causing problems with walking up stairs or hills.  Left ankle range of motion testing showed dorsiflexion to 5 degrees and plantar flexion to 45 degrees.  Pain was noted on examination but did not cause functional loss.  There was evidence of pain with weight-bearing.  The Veteran could perform repetitive use testing with at least three repetitions without additional loss of function or range of motion.  There was no ankylosis noted.
Analysis
In light of the Veteran’s competent and credible reports of pain, difficulty with walking up stairs or hills, and pain with prolonged standing and walking, to which the Board has accorded significant probative value, and the fact that throughout the appeal period the Veteran’s dorsiflexion of the left ankle was consistently noted to be to 5 degrees (compared to a normal range of 0 to 20 degrees), the Board affords the Veteran the benefit of the doubt and finds that, for the entire appeal period, his overall disability picture more nearly approximates the criteria for a 20 percent rating for left ankle tendon injury and fracture, based on marked limitation of motion.  As mentioned above, “moderate” and “marked” are not defined by the Code.  However, “marked” is defined as “noticeable; obvious; appreciable; distinct; conspicuous.”  See Webster’s New World Dictionary, Third College Edition (1988) at 828.  “Moderate” is defined as “of average or medium quality, amount, scope, range, etc.”  Id. at 871.  
The Board has considered the Veteran’s symptoms and functional effects, including any functional limitation beyond the objective range of motion measurements, in accordance with DeLuca and Mitchell.  Indeed, the Veteran’s statements regarding functional effects of pain, including aching and pain with prolonged standing and walking, have been considered in the Board’s decision to increase the rating for the entire period on appeal.  However, 20 percent is the highest rating available for limitation of motion of the ankle.  As such, further consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca is not required.  See Johnston v. Brown, 10 Vet. App. 80, 85 (1997).
During the period in question, the Veteran has not shown any evidence of ankylosis of the left ankle, which would be required for an evaluation higher than 20 percent under the rating criteria.  Moreover, there has been no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy.  In any event, in light of the grant of a 20 percent rating herein, rating the Veteran’s left ankle disability under Diagnostic Codes 5272, 5273, or 5274 would not avail the Veteran.


For these reasons, the Board finds that the preponderance of the evidence supports an award of 20 percent, but no higher, for the Veteran’s left ankle disability for the period on appeal.

 
V. Chiappetta
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Polly Johnson, Associate Counsel 

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