SHOULDER IMPAIRMENT OF

J. N. MOATS · 2023 · Case ID: 23022263

MIXED

Summary

The veteran, who served from February 1979 to April 1982, appeals the denial of service connection for a left shoulder disorder and seeks an increased rating for his service-connected right foot disability. The Board denied service connection for the left shoulder, finding that while the veteran has a current diagnosis of arthritis, the condition was not noted as chronic in service, did not manifest to a compensable degree within a presumptive period, and lacked continuity of symptomatology. Service treatment records were silent regarding any shoulder complaints, and the separation examination showed normal upper extremities. The Board found the veteran's lay statements regarding an in-service injury or wear-and-tear to be internally inconsistent with service records and subsequent medical opinions. A VA examination in February 2021 opined that the shoulder disability was less likely than not related to service, attributing it to construction work after service. The Board found this opinion more probative than the lay evidence. For the right foot disability, the Board found the evidence in relative equipoise regarding entitlement to a 20 percent rating for moderately severe impairment. While some evidence suggested only mild to moderate disability, other evidence indicated significant degenerative changes and foot deformity. Applying the benefit of the doubt, the Board granted a 20 percent rating for the right foot disability, finding that the evidence did not clearly distinguish symptoms from other service-connected conditions, but denied entitlement to a higher rating.

Rationale

No in-service complaints or diagnoses for left shoulder; Separation exam showed normal upper extremities; Lay statements inconsistent with service records and medical opinions; VA opinion found disability less likely than not related to service

Special Benefit

NO SPECIAL BENEFIT

Docket No.

07-17 032A

Full Decision Text

Citation Nr: 23022263
Decision Date: 04/13/23 Archive Date: 04/13/23

DOCKET NO. 07-17 032A
DATE: April 13, 2023

ORDER

Entitlement to service connection for a left shoulder disorder is denied.

Entitlement to a 20 percent disability rating, but no higher, for right foot disability, capsulitis, right metatarsal articulation, stress reaction, right third metatarsal, is granted.

FINDINGS OF FACT

1. The Veteran's degenerative arthritis of the left shoulder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and a left shoulder disability is not otherwise etiologically related to an in-service injury or disease during active service.

2. When resolving the benefit of the doubt in favor of the Veteran, his right foot disability has more nearly approximated moderately severe during the appeal period.

CONCLUSIONS OF LAW

1. The criteria for service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1131, 1112, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for a 20 percent disability rating, but no higher, for right foot disability are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.71a.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1979 to April 1982.

In January 2010, the Veteran testified a Board video conference hearing before the undersigned Acting Veterans Law Judge. A transcript is included in the electronic claims file and has been reviewed.

Additional relevant medical evidence, including VA treatment records and VA examination reports, has been associated with record that has not been considered by the agency of original jurisdiction (AOJ). However, in April 2023, the Veteran's representative waived AOJ consideration of this evidence.

The case has been subject to multiple Board actions. Most recently, in February 2021, the remaining issues on appeal were remanded for addendum opinions. The case is again before the Board for appellate review. As discussed below, the Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998).

Service Connection

The Veteran claims that he incurred a left shoulder disorder during service.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303.

To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic disorders such as degenerative arthritis are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a).

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 will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To deny a claim, the evidence must clearly weigh against the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The relevant evidence consists of lay assertions, service treatment records (STRs), service personnel records (SPRs), private and VA treatment records, and VA compensation examination reports dated in December 2019, February 2021, and June 2021.

The evidence shows that the Veteran has a current left shoulder disorder. Most recently, the June 2021 VA report notes diagnoses of rotator cuff tear, acromioclavicular osteoarthritis, and degenerative arthritis.

The initial question for the
3.102. To deny a claim, the evidence must clearly weigh against the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The initial question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service.

The Board concludes that, while the Veteran has arthritis, which is a chronic disease under 38 U.S.C. § 1101 (3)/38 C.F.R. § 3.309 (a)] it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Board recognizes that in multiple statements of record, to include during the Board hearing, the Veteran described injuring his left shoulder as the result of wear-and-tear type injuries throughout service. During the Board hearing, he also described injuring his shoulder while falling.

However, service treatment records are silent with respect to any complaints, injuries or diagnoses pertaining to the left shoulder. Importantly, the March 1982 service examination prior to discharge showed that the upper extremities were clinically evaluated as normal. The Veteran indicated during the Board hearing that he did not seek medical treatment during service for a left shoulder problem, so this is not unexpected. Nevertheless, the absence of evidence in STRs dated over a several-year period of a shoulder problem is not helpful to his claims, particularly because he did seek medical care for complaints involving his hands, and for other musculoskeletal problems (e.g., knees, feet).

The earliest indication of a chronic left shoulder problem is dated over 20 years after service. The earliest medical evidence addressing such a disorder is found in VA treatment records dated in the early 2000s. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). Thus, the evidence does not indicate that during service or in the two decades following service the Veteran had the characteristic manifestations sufficient to identify a chronic disability involving the left shoulder. See 38 C.F.R. §§ 3.303, 3.307, 3.309.

Moreover, while the Veteran is competent to report experiencing pertinent symptomatology since service, the Board finds that such reports are not credible. The Veteran's reports are internally inconsistent with the service treatment records that showed no clinically diagnosed left shoulder disability. Moreover, again, the first evidence of any left shoulder disability is many years later, outside of the presumptive period. Further, when the Veteran first sought treatment for his left shoulder at the VA in August 2004, he did not report that his symptoms began in service and at that time, the examiner thought the symptoms were due to possible neuropathy from alcohol use. Further, the Veteran was not diagnosed with a left shoulder disability until approximately 2006. Given these inconsistencies, the Veteran is not credible as to onset of back pain. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).

Further, the Veteran is not competent to provide a diagnosis in this case or determine that any shoulder symptoms were manifestations of arthritis. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which indicates that the Veteran's left shoulder disability is due to prolonged use of heavy machinery after service.

In sum, there is no competent, credible lay or medical evidence documenting pertinent symptomatology since service. Thus, the service incurrence of arthritis may not be presumed.

Service connection for a left shoulder disability may still be granted on a direct basis; however, the evidence persuasively weighs against finding that a medical nexus exists between the Veteran's left shoulder disability and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 136
Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which indicates that the Veteran's left shoulder disability is due to prolonged use of heavy machinery after service.

In sum, there is no competent, credible lay or medical evidence documenting pertinent symptomatology since service. Thus, the service incurrence of arthritis may not be presumed.

In this regard, the only medical evidence of record addressing whether there is a nexus indicates that the left shoulder disability is unrelated to service. The probative February 2021 VA examination report, which was requested by the Board in its February 2021 remand, weighs the Veteran's claim. Moreover, the prior December 2019 VA examination report also contains an opinion countering the claim. However, the Board will not rely on this opinion because, as detailed in the prior remand, the opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that once VA undertakes an examination, an adequate one must be produced). In any event, the February 2021 opinion fully addresses the claim.

The February 2021 VA examiner found it less than likely that the current disorders related to the rigors of service described by the Veteran. The examiner noted the absence of medical evidence during service to support the lay evidence of a chronic disorder during service, noted the finding of normal upper extremities at discharge from service, and noted the absence of medical evidence dated in the years following service to support the lay evidence of chronic disability following service. The examiner stated that any shoulder problem today more likely relates to injury during construction work following service. The examiner cited the interview conducted with the Veteran, which indicated that use of a sledgehammer for prolonged periods while working construction is the most likely cause of chronic disability.

This medical opinion is probative because it is explained with citation to facts in the record, is based on a review of the claims file, and is based on the evidence in the claims file. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The opinion is more persuasive than the lay evidence, moreover. As noted earlier, a layperson is competent to report observable symptoms such as pain and limitation of motion. See Jandreau, supra. However, laypersons are not competent to determine matters such as diagnosis and etiology, particularly concerning an internal pathology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).

The question of whether the Veteran tore his rotator cuff during service or developed arthritic changes as the result of service are complex medical issues. For this reason, the probative VA opinion outweighs the lay statements in this matter. The VA opinion is more probative regarding the question of whether the left shoulder problem today is related to service that ended over 40 years ago. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder).

In conclusion, the evidence of record demonstrates that a left shoulder disorder is not related to service. As such, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Rating for Right Foot Disability

The Veteran experienced a stress fracture of the third metatarsal on the right foot during service. Right foot disability has been service connected and rated 10 percent disabling since July 2004. The Veteran seeks entitlement to an increased rating for the disability.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 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

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. Otherwise, the lower rating will be assigned. 38 C.F.R. §§ 4.3, 4.7.

"Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial or an increased rating claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to this rule exists under 38 C.F.R. § 3.400 (o)(2). Thereunder, VA may assign an effective date for increased rating up to one year prior to the date of increased rating claim where medical evidence indicates an increase in disability during that time period.

In rating disabilities, VA should not differentiate symptomatology attributed to nonservice-connected disability from symptomatology attributed to service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id.

The RO has rated the Veteran's right foot disability under DC 5299-5283 of 38 C.F.R. § 4.71a.

Disorders not listed in the rating schedule should be rated by analogy and coded with the first two numbers of the schedule provisions for the most closely related body part and then the numbers "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27.

Under DC 5283, ratings for malunion or nonunion of the tarsal, or metatarsal bones are provided. A 10 percent rating is warranted under this DC for moderate impairment, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. Loss of the foot warrants a 40 percent rating. The same ratings are warranted for the same degrees of impairment under DC 5284, which rates foot injuries. The words "moderate," "moderately severe," and "severe" are not defined in DCs 5283-5284. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6.

The relevant evidence pertaining to the claim consists of lay assertions, VA and private treatment records, and VA compensation examination reports dated in July 2008, March 2018, December 2019, February 2021, June 2021, and April 2022. However, the evidence is contradictory regarding the severity of right foot disability.

In this regard, the July 2008 report found no evidence of abnormal shoe wear, no use of an assistive device, no evidence of malunion or nonunion in the foot, and full range of motion in the ankle. However, the examiner found other evidence of abnormal weight bearing such as callosities and gait trouble. The examiner also noted painful motion, weakness, and tenderness in the right foot and noted x-ray evidence showing degenerative changes, which the examiner found restricted walking and standing.

The March 2018 report notes substantial range of motion and full muscle strength in the foot area without evidence of atrophy. However, the report also indicates pain radiating from the foot into the ankle and states that discomfort increases with walking and climbing stairs. The report
no evidence of abnormal shoe wear, no use of an assistive device, no evidence of malunion or nonunion in the foot, and full range of motion in the ankle. However, the examiner found other evidence of abnormal weight bearing such as callosities and gait trouble. The examiner also noted painful motion, weakness, and tenderness in the right foot and noted x-ray evidence showing degenerative changes, which the examiner found restricted walking and standing.

The March 2018 report notes substantial range of motion and full muscle strength in the foot area without evidence of atrophy. However, the report also indicates pain radiating from the foot into the ankle and states that discomfort increases with walking and climbing stairs. The report states that the Veteran could not run because of pain and experienced constant pain of 3/10. With certain weather and increased activity, the Veteran experienced flare ups with pain of 8/10. The examiner noted significant degenerative changes in the right ankle including irregular spurring at the malleoli, sclerosis and subcortical cyst formation of both components of the ankle mortise, and a scant ankle effusion. The examiner stated that the disability caused limited prolonged standing and limited prolonged walking, climbing, and stooping. The examiner found it plausible that the significant degenerative changes in the right ankle were due to gait changes caused by foot disability. Thus, the examiner found the ankle troubles likely secondary to the foot problem.

The December 2019 examiner noted degenerative arthritis in the foot but indicated that the stress fracture involving the metatarsal disorder had resolved without residuals. The examiner indicated that the Veteran complained of chronic sharp foot pain particularly after high impact activities but that it did not interfere with his functioning to include daily activities. The examiner noted normal gait without assistive device and noted only pain on palpation. The examiner also noted x-ray evidence showing mild to moderate degenerative changes in the foot. And the examiner found that the degenerative changes were due to age and not due to the foot injury, and that the changes caused the Veteran's disabling symptoms.

The February 2021 and June 2021 reports differ from the December 2019 report and indicate that right foot disability did cause functional loss. The reports note increased pain with prolonged standing, walking, and driving and indicated disturbance of locomotion and interference with standing. The reports state that the Veteran was limited in running, kneeling, jumping, crawling, squatting, prolonged standing, prolonged ambulation, climbing stairs and high impact activities, which affected his emotional well-being. The February 2021 examiner noted that the Veteran limps when he walks and had difficulty standing and walking. The examiners found the disability to be mildly to moderately disabling. The June 2021 report states that nonservice-connected degenerative changes caused disability as well.

The April 2022 report notes shooting pain that caused an antalgic gait. The examiner found no evidence of muscle atrophy related to the disability. This examiner noted a "very noticeable finding" regarding the alignment of the right ankle and foot, with a moderate inversion of the foot. The examiner indicated that this deformity caused a sensation of walking on the lateral side of the foot.

Lastly, the Veteran has provided lay evidence in the claims file describing significant disability in his right foot with painful motion, limitation of motion, and limitation of function due to the symptoms. See Jandreau, supra.

This evidence clearly shows that symptoms associated with the right foot disability have not caused severe impairment under either DC 5283 or DC 5284. 38 C.F.R. § 4.71a. The evidence shows that the Veteran has retained an ability to move around on his own without an assistive device and has retained basic functioning in his foot. Importantly, none of the VA examiners have characterized the Veteran's disability as severe.

Nevertheless, the evidence is in a state of relative equipoise regarding whether the 20 percent rating is warranted here for moderately severe disability. On the one hand, certain evidence indicates merely mild to moderate disability involving symptoms only after prolonged standing and walking or after high impact activities. However, on the other hand, certain other evidence indicates that the right foot and ankle area is deformed by an inversion of the foot and by the "significant" degenerative changes noted in the December 2019 x-ray report. The Veteran is not service connected for degenerative changes in the foot or for the inversion of the foot. Further, the Veteran is separately service connected for right ankle disability secondary to right foot disability. Nevertheless, the medical evidence has not clearly distinguished symptoms associated with these other disorders from symptoms associated with the right foot. In turn, all disabling symptoms involving the lower foot area have been considered here. See
mild to moderate disability involving symptoms only after prolonged standing and walking or after high impact activities. However, on the other hand, certain other evidence indicates that the right foot and ankle area is deformed by an inversion of the foot and by the "significant" degenerative changes noted in the December 2019 x-ray report. The Veteran is not service connected for degenerative changes in the foot or for the inversion of the foot. Further, the Veteran is separately service connected for right ankle disability secondary to right foot disability. Nevertheless, the medical evidence has not clearly distinguished symptoms associated with these other disorders from symptoms associated with the right foot. In turn, all disabling symptoms involving the lower foot area have been considered here. See Mittleider, supra.

Based on the foregoing, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 20 percent rating is warranted for the right foot disability. However, the evidence clearly demonstrates that the next-highest rating of 30 percent is not warranted. Thus, the reasonable doubt doctrine does not apply to any claim for a rating above 20 percent. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3.

J.N. MOATS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Christopher McEntee

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.

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