PLANTAR FASCIITIS

RAY BARTO SLABBEKORN, JR. · 2024 · Case ID: A24060358

DENIED

Summary

The Veteran, an Air Force Veteran who served from January 2009 to September 2015, appeals the denial of increased ratings for his service-connected right foot plantar fasciitis, left wrist sprain, and left shoulder strain, as well as the denial of service connection for a right shoulder disability, right knee disability, and back disability. The Board reviewed the evidence, including multiple VA examinations and the Veteran's lay statements. For the right foot plantar fasciitis, the Board found that while the Veteran experienced pain, the evidence did not meet the criteria for a rating higher than 10 percent, as there was no objective evidence of marked deformity, accentuated pain on manipulation, or characteristic callosities. The Board applied the benefit-of-the-doubt rule but found the evidence favored denial of a higher rating. For the left wrist sprain, the Board found the evidence did not support a rating higher than the existing 10 percent, as there was no evidence of ankylosis or symptoms approximating ankylosis. The Board also found the evidence persuasively against a higher rating for the left shoulder strain, noting the lack of evidence for significant functional limitation or ankylosis. For the right shoulder, right knee, and back disabilities, the Board found no current diagnosis or evidence of service connection, despite favorable findings of in-service complaints. The Board found the VA examiners' opinions, which noted symptom exaggeration and lack of objective findings, more probative than the Veteran's lay assertions. The benefit-of-the-doubt rule was considered but did not change the outcome as the evidence favored denial.

Rationale

Evidence did not meet criteria for higher rating (10% granted); No objective evidence of marked deformity, accentuated pain on use, or characteristic callosities; Symptoms considered moderate, not severe or moderately severe

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210715-172430

Full Decision Text

Citation Nr: A24060358
Decision Date: 09/24/24 Archive Date: 09/24/24

DOCKET NO. 210715-172430
DATE: September 24, 2024

ORDER

Entitlement to a disability rating in excess of 10 percent disabling for service-connected right foot plantar fasciitis is denied.

Entitlement to a disability rating in excess of 10 percent for a service-connected left wrist sprain is denied.

Entitlement to a disability rating in excess of 20 percent disabling for a service-connected left shoulder strain is denied.

Entitlement to service-connection for a right shoulder disability is denied.

Entitlement to service connection for a right knee disability is denied.

Entitlement to service connection for a back disability is denied.

FINDINGS OF FACT

1. The Veteran's service-connected right foot plantar fasciitis is manifested by pain without objective evidence of marked deformities, accentuated pain on manipulation, swelling on use, or characteristic callosities.

2. The Veteran's nondominant left wrist sprain has not been manifested by ankylosis or symptoms that more nearly approximate ankylosis.

3. The Veteran's service-connected left shoulder strain, the minor joint, is not manifested by range of motion of the arm limited to 25 degrees or less from the side, ankylosis of the scapulohumeral articulation, or impairment of the humerus joint.

4. The Veteran does not have a right shoulder disability that was incurred in or a result of his active duty service, or that is secondary to a service-connected disability.

5. The Veteran does not have a right knee disability that is a result of his active-duty service.

6. The Veteran does not have a right knee disability that is a result of his active-duty service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 10 percent disabling for service-connected right foot plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5269.

2. The criteria for entitlement to a disability rating in excess of 10 percent for a service-connected left wrist sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5215.

3. The criteria for Entitlement to a disability rating in excess of 20 percent disabling for a service-connected left shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201.

4. The criteria for entitlement to service-connection for a right shoulder disability, to include as secondary to a left shoulder disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

6. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from January 2009 to September 2014 and from November 2014 to September 2015.

These matters are on appeal from a June 2021 higher level review rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

On July 15, 2021, the Veteran filed a VA Form 10182 Notice of Disagreement identifying the June 2021 higher lever rating decision and selecting the direct docket.

As an appeal in which the appellant requested, on the Notice of Disagreement, direct review by the Board without submission of additional evidence and without a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the decision on the issues on appeal
2009 to September 2014 and from November 2014 to September 2015.

These matters are on appeal from a June 2021 higher level review rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

On July 15, 2021, the Veteran filed a VA Form 10182 Notice of Disagreement identifying the June 2021 higher lever rating decision and selecting the direct docket.

Procedural history

An April 2020 rating decision denied a rating in excess of 10 percent for service-connected right foot plantar fasciitis, denied a rating in excess of 10 percent for a service connected left wrist sprain, increased the Veteran's disability rating for service-connected left shoulder strain from 10 to 20 percent disabling effective July 15, 2019, and denied entitlement to service connection for a right shoulder disability, a right knee disability and a back disability.

On May 13, 2020, the Veteran filed a VA Form 20-0995 Supplemental Claim Application listing right foot condition, left wrist and hand condition, left shoulder condition, a right shoulder condition, right knee condition and a back condition.

A July 2020 rating decision denied a rating in excess of 10 percent for service-connected right foot plantar fasciitis, denied a rating in excess of 10 percent for a service connected left wrist sprain and a rating in excess of 20 percent for service-connected left shoulder strain.

An August 2020 rating decision denied entitlement to service connection for a right shoulder disability, a right knee disability and a back disability.

On September 1, 2020, VA received a VA Form 20-0995 Supplemental Claim Application for right shoulder pains, back pains, right knee pains, right wrist, and hand pains.

A January 2021 rating decision confirmed and continued the previous denials of entitlement to service connection for a right shoulder disability, a right knee disability and a back disability.

On March 1, 2021, VA received a VA Form 20-0995 Supplemental Claim Application seeking increased ratings for service connected left wrist and hand pain, right foot disability, left shoulder disability and seeking service connection for a right shoulder disability, a right knee disability and a back disability.

On April 1, 2021, the Veteran filed a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability.

An April 8, 2021 rating decision, notification of which was mailed to the Veteran on April 12, 2021, denied a rating in excess of 10 percent for service-connected right foot plantar fasciitis, denied a rating in excess of 10 percent for a service connected left wrist sprain and a rating in excess of 20 percent for service-connected left shoulder strain and confirmed and continued the previous denials of entitlement to service connection for a right shoulder disability, a right knee disability and a back disability.

On April 28, 2021, the Veteran filed a VA Form 20-0996 Request for Higher-Level Review of the April 2021 rating decision.

A May 2021 higher level review rating decision denied a disability rating in excess of 20 percent for the Veteran's left shoulder, denied a disability rating in excess of 10 percent for service-connected right foot plantar fasciitis, denied a disability rating in excess of 10 percent for a service connected left wrist sprain, as well as entitlement to unemployability. The RO acknowledged that the rating decision arose from an April 28, 2021, HLR form but did not address the Veteran's claims for entitlement to service connection for a right shoulder disability, a right knee disability and a back disability listed on that form.

On June 18, 2021, filed a VA Form 20-0996 Request for Higher-Level Review seeking request of the May 2021 rating decision pertaining to the increased rating claims and entitlement to a TDIU.

A June 2021 higher level review rating decision denied a disability rating in excess of 20 percent for the Veteran's left shoulder, denied a disability rating in excess of 10 percent for service-connected right foot plantar fasciitis, denied a disability rating in excess of 10 percent for a service connected left wrist sprain, and denied entitlement to service connection for a right shoulder disability, a right knee disability and a back disability.

Increased Ratings

Disability evaluations are determined by the application of the facts presented
18, 2021, filed a VA Form 20-0996 Request for Higher-Level Review seeking request of the May 2021 rating decision pertaining to the increased rating claims and entitlement to a TDIU.

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

When a disability rating is based on limitation of motion, additional functional loss due to pain, such as weakness, lack of endurance or fatigability, on use or during flare-ups, must be considered. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In DeLuca, the Court found that a medical examination that failed to determine whether any additional functional loss resulted from pain was inadequate and instructed that on remand the examiner should be asked to opine on whether pain could significantly limit functional ability during flare-ups or on repetitive use. 8 Vet. App. at 205-06.

The Court clarified and expounded upon this earlier case law in Mitchell v. Shinseki, emphasizing that it is the functional loss caused by pain that must be considered and that painful motion alone does not constitute limited motion. 25 Vet. App. 32, 38 (2011). As the Court explained, functional loss may be caused by pain if the pain limits the ability of the veteran to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id. at 37. It further emphasized that such functional loss need not be ever-present and can manifest during a flare up or only as a result of repetitive use and reaffirmed its instructions in DeLuca that when pain is associated with movement, an adequate medical examination must include an opinion on whether pain could cause significant functional limitations either during a flare-up or as a result of repetitive use. Id.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations should be applied, the higher rating is assigned when the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.

The "effective date for an increased rating, indeed, as well as for an initial rating or for staged ratings," depends on when the change in disability level can be "ascertained." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). An effective date should not be "assigned mechanically" as of the date of an examination. Id.

The Veteran filed the instant claim on February 6, 2020. The effective date of an award of benefits is generally the date on which the claim that resulted
the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.

The Veteran filed the instant claim on February 6, 2020. The effective date of an award of benefits is generally the date on which the claim that resulted in the award was filed. 38 U.S.C. § 5110(a). Nonetheless, section 3.400(o)(2) allows for an earlier effective date for an increased rating grant to the extent the worsened severity is factually ascertainable within the year preceding the filed claim. Dubbed the "one year look back" provision, it is essentially a one-year grace period for a veteran to file an increased rating claim following some incident of worsening. The Board's review of the increased rating claims will be limited to the period of February 6, 2019, onwards.

1. Entitlement to a disability rating in excess of 10 percent disabling for service-connected right foot plantar fasciitis.

The Veteran is in receipt of service connection for right foot plantar fasciitis from with a noncompensable disability from September 30, 2014, to July 15, 2019, under Diagnostic code 5284, a 10 percent rating from July 15, 2019, to March 1, 2021, under diagnostic code 5276 and a 10 percent rating from March 1, 2021, under Diagnostic Code 5269. The Veteran contends, generally, that he is entitled to a higher disability rating.

Factual Background

The Veteran underwent a VA foot examination of his feet in March 2020. The claims file was reviewed. The examiner diagnosed the Veteran with right foot plantar fasciitis. The Veteran reported plantar arch pain which was worse with standing or walking long distances. The Veteran had reported pain on use of the right foot, but no pain was noted on examination, to include with manipulation. There was no swelling on use and there were no calluses. Arch supports were tried and did not relieve symptoms. There were no other pertinent findings or symptoms. Amputation with prosthesis would not equally serve the Veteran.

The Veteran underwent another VA examination of his feet in April 2021. The examiner confirmed the Veteran's diagnosis with right foot plantar fasciitis. He reported that his condition worsened since the prior March 2020 examination. The Veteran had pain on use of his feet with pain accentuated on use. He had right foot pain on manipulation, but it was not accentuated with on manipulation. There were no characteristic callouses and there was no extreme tenderness on the plantar section of his right foot. The Veteran reported using arch supports, but otherwise not undergoing any non-surgical or surgical treatment.

Legal Criteria

Historically, plantar fasciitis was rated by analogy, usually under diagnostic code 5276 or diagnostic code 5284. Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, DC 5269, for plantar fasciitis, was added to the rating schedule. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under the DCs which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). However, the criteria for DC 5269 are not applicable prior to the date of the February 7, 2021, amendment.

Effective February 7, 2021, under DC 5269, a 10 percent rating is warranted for plantar fasciitis otherwise, unilateral, or bilateral; a 20 percent rating is warranted for unilateral plantar fasciitis that is not relieved by both non-surgical and surgical treatment; and a 30 percent rating is warranted for bilateral plantar fasciitis that is not relieved by both
.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). However, the criteria for DC 5269 are not applicable prior to the date of the February 7, 2021, amendment.

Effective February 7, 2021, under DC 5269, a 10 percent rating is warranted for plantar fasciitis otherwise, unilateral, or bilateral; a 20 percent rating is warranted for unilateral plantar fasciitis that is not relieved by both non-surgical and surgical treatment; and a 30 percent rating is warranted for bilateral plantar fasciitis that is not relieved by both non-surgical and surgical treatment. 38 C.F.R. § 4.71a, DC 5269. Note (2) to allows for evaluation under the applicable 20 or 30 percent criteria, "if a veteran has been recommended for surgical intervention, but is not a surgical candidate." See 38 C.F.R. § 4.71a, DC 5269, Note (2). Additionally, under 38 C.F.R. § 4.71a, DC 5269, Note (1), a 40 percent rating is warranted with actual loss of use of the foot.

Under DC 5276, a 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276.

Additionally, DC 5284 is used to rate "other foot injuries." Under DC 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to DC 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, DC 5284.

According to Merriam-Webster Dictionary, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe (last accessed September 2, 2024).

Within the context of DC 5284, "moderately severe" is a level that is more impaired than moderate, and less impaired than severe. In order to be characterized as moderately severe under DC 5284, there must be features of both moderate foot injury and severe foot injury, which considered together, establishes an intermediate level of impairment.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

The criteria in DC 5276 and DC 5269 are conjunctive. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive "or" requirement must be met for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable).

Analysis

The Veteran's claim was received on February 6, 2020, therefore the Board will consider the Veteran's claim under
. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive "or" requirement must be met for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable).

Analysis

The Veteran's claim was received on February 6, 2020, therefore the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021, and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Kuzma, 341 F.3d at 1328. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Reasonable doubt exists when there is an approximate balance of positive and negative evidence for and against the claim. 38 C.F.R. § 3.102.

Where a Veteran has a noncompensable rating for a musculoskeletal disability and experiences pain on motion, she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. Id.

Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements.

Considering the evidence of record and resolving reasonable doubt regarding degree of disability in the Veteran's favor, the Board finds that the Veteran's right foot plantar fasciitis was manifested by pain. As such, the Board finds that a 10 percent rating, but no higher, is warranted under DC 5276. See 38 C.F.R. § 4.59; Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (holding that 38 C.F.R. § 4.59 is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements).

The Board has considered whether the next higher (20 percent) rating may be warranted p. However, throughout the appeal period. it was not shown that the Veteran's right foot plantar fasciitis symptoms included objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Notably, upon the June 2015 VA foot conditions examination, while the Veteran reported pain on use of her right foot and pain accentuated on use, there was no pain on manipulation of the right foot. Accordingly, the evidence throughout the appeal period does not reflect that the Veteran's right foot plantar fasciitis symptoms more nearly approximated those of severe unilateral acquired flatfoot, as required for a 20 percent rating under DC 5276.

To warrant a 20 percent disability rating under the new DC 5269, the Veteran would have to show unilateral plantar fasciitis that is not relieved by both non-surgical and surgical treatment. There is no indication in the record of surgical treatment or a recommendation for the same. Therefore, entitlement to a higher, 20 percent disability rating for service-connected plantar fasciitis of the right foot under DC 5269 is not warranted.

Nevertheless, the Board has considered whether the Veteran's right foot disabilities may warrant ratings in excess of those currently assigned under other DCs pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin,
-surgical and surgical treatment. There is no indication in the record of surgical treatment or a recommendation for the same. Therefore, entitlement to a higher, 20 percent disability rating for service-connected plantar fasciitis of the right foot under DC 5269 is not warranted.

The Board has also considered the Veteran's right foot plantar fasciitis symptoms under DC 5284, for other foot injuries. However, the Veteran's plantar fasciitis exhibited no more than moderate symptoms. However, the Board finds that the Veteran's symptoms are more consistent with the "moderate" rating criteria rather than the "moderately severe" criteria, as no evidence of severe symptoms or functional impairment due to her service-connected right foot plantar fasciitis were noted throughout the claims file.

In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38?U.S.C. §?5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence is persuasively in favor of a finding that the criteria for entitlement to a disability rating in excess of 10 percent disabling for service-connected right foot plantar fasciitis have not been met.. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

2. Entitlement to a disability rating in excess of 10 percent for a service-connected left wrist sprain

The Veteran is in receipt of service connection for a left wrist sprain and is assigned a 10 percent disability rating from September 30, 2014. The Veteran contends, generally, that he is entitled to a higher disability rating.

The Veteran's right wrist sprain residuals has been rated under Diagnostic Code (DC) 5215. Under DC 5215, a 10 percent rating is warranted for limitation of motion of the wrist manifested by dorsiflexion limited to less than 15 degrees or by palmar flexion limited in line with the forearm. This is the maximum possible schedular rating under DC 5215. 38 C.F.R. § 4.71a, DC 5215. Therefore, a higher schedular rating under that Diagnostic Code cannot be awarded.

The Board notes that effective February 7, 2021, the criteria for the schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the Board notes that the February 7, 2021, musculoskeletal amendments presented no changes to the rating criteria for Diagnostic Code 5215.

Consequently, the sole criteria applicable in this case that would allow for an evaluation in excess of the assigned 10 percent evaluation is Diagnostic Code 5214, for ankylosis of the wrist. The Veteran is right-handed, and thus, his left wrist is the minor extremity. 38 C.F.R. § 4.69. Diagnostic Code 5214 provides different ratings based on whether the affected extremity is the minor or major extremity. Under Diagnostic Code 5214, a 20 percent rating is warranted for favorable ankylosis of the major wrist in 20 to 30 degrees of dorsiflexion; a 30 percent rating is warranted for ankylosis of the major wrist in any other position except favorable; and a 40 percent rating is warranted for unfavorable ankylosis of the major wrist, in any degree of palmar flexion, or with ulnar or radial deviation. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. A Note to Diagnostic Code
§ 4.69. Diagnostic Code 5214 provides different ratings based on whether the affected extremity is the minor or major extremity. Under Diagnostic Code 5214, a 20 percent rating is warranted for favorable ankylosis of the major wrist in 20 to 30 degrees of dorsiflexion; a 30 percent rating is warranted for ankylosis of the major wrist in any other position except favorable; and a 40 percent rating is warranted for unfavorable ankylosis of the major wrist, in any degree of palmar flexion, or with ulnar or radial deviation. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. A Note to Diagnostic Code 5214 indicates that extremely unfavorable ankylosis is rated as loss of use of hands under Diagnostic Code 5125. Diagnostic Code 5214 also was not revised by the February 7, 2021, regulatory changes.

Turning to the evidence, the record reflects that the Veteran underwent a VA wrist and hand conditions examination in March 2020. The examiner confirmed the Veteran's diagnosis of a chronic left wrist strain and noted that the condition had stayed the same since its 2009 onset. On examination, the Veteran denied flare-ups, had a full range of motion and there was no pain was noted on exam.

The Veteran underwent another VA examination of his wrists in April 2021. The examiner confirmed the Veteran's diagnosis of a left wrist strain. The examiner noted that the Veteran wears wrist braces at night as well as during work periods when he has to write. In terms of range of motion measurements, the examiner was unable to test. The examiner noted that the Veteran was barely able to move both wrists, but was subsequently able to grip and don clothing, shoes, and socks without any apparent difficulty. The examiner also noted inconsistencies between the Veteran's presentation on examination and March 2021 VA treatment notes showing reports that the Veteran uses exercise and working out to distract himself from his problems and with his presentation at the examination with a muscular physique.

After review of the evidence of record, the Board finds the evidence of record is persuasively against finding that the Veteran's symptoms meet or more nearly approximate the criteria for a rating in excess of 10 percent for his right wrist sprain residuals. The Board notes that the evidence does not demonstrate any ankylosis of the Veteran's right wrist or any symptoms causing functional impairment that more nearly approximate ankylosis at any time throughout the appeal period.

The Board acknowledges the Veteran's lay reports of symptoms and functional loss; however, even considering this evidence, the degree of additional limitation reflected by this evidence is not shown to result in symptoms more nearly approximating favorable ankylosis of the wrist in 20 to 30 degrees of dorsiflexion, any other position, except favorable, or unfavorable ankylosis. In reaching this finding, the Board has considered whether the evidence supports a finding that the Veteran's wrist disability amounts to the "functional equivalent of ankylosis" but concludes, for the reasons cited above, that it does not.

In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38?U.S.C. §?5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran's left wrist sprain has not been manifested by ankylosis or symptoms that more nearly approximate ankylosis. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

3. Entitlement to a disability rating in excess of 20 percent disabling for a service-connected left shoulder strain.

The Veteran is in receipt of service connection for a left shoulder strain with an assigned disability rating of 20 percent disabling under diagnostic code 5201 from July 15, 2019. The Veteran maintains, generally, that he is entitled to a higher disability rating.

Factual Background

3. Entitlement to a disability rating in excess of 20 percent disabling for a service-connected left shoulder strain.

Factual Background

The Veteran a VA examination of his shoulders in March 2020. While the examiner diagnosed the Veteran with a left shoulder strain, a diagnosis for the right shoulder was not found. On examination, the Veteran had a full range of motion of the right shoulder without any localized tenderness or crepitus. The Veteran was able to perform repetitive use testing without any loss of function. The examiner also found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during reported flare ups or with repeated use over time. The examiner opined that the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness.

The Veteran underwent another VA examination of his shoulders in December 2020. He reported that he was unsure when his right shoulder started to hurt but believes it was during his active service. He reported constant pain in his right shoulder. However, the examiner was not able to test range of motion of the Veteran's right shoulder. The examiner found that the Veteran's presentation on examination was not consistent with the Veteran's claims or with a review of the medical record. The examiner noted that the Veteran exhibited a full range of motion on examination in March 2020 and had a history of being very active with a very muscular physique. On examination, the Veteran reported that he was unable to flex his shoulders at all, complained of severe pain and asked the examiner to stop when the lightest pressure was applied to the right shoulder. Nevertheless, the Veteran was observed wearing a pullover hoodie which he was able to don.

The Veteran submitted a December 2020 independent medical evaluation which finds, generally, that his service-connected left shoulder condition has worsened and that the Veteran is entitled higher disability ratings. The provider does not appear to have personally examined the Veteran and no range of motion measurements or other criteria helpful in rating the disabilities was provided.

The Veteran underwent another VA examination of the shoulders in March 2021. The examiner confirmed the Veteran's left shoulder strain diagnosis. However, the examiner was unable to obtain range of motion measurements. the examiner noted that the Veteran moaned and was "extremely limited" in flexion, abduction, and rotation but after this was able to put on his hoodie, place his hands behind his back with no apparent difficulty. The examiner found that the Veteran's presentation was inconsistent with his presentation with a muscular physique or with records indicating he had an active lifestyle and engaged in physical exercise. The examiner did not find any evidence of muscle atrophy or ankylosis.

Legal Criteria

The rating criteria for evaluating disabilities of the shoulder distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. The Veteran is left hand dominant, and when rating the Veteran's right shoulder disability, the Board has considered ratings applied based on the minor extremity.

Diagnostic Code 5201 provides a 20 percent disability rating for limitation of motion of the minor arm at shoulder level; a 20 percent disability rating for limitation of motion of the minor arm midway between the side and shoulder level; and a maximum 30 percent rating for limitation of motion of the minor arm to 25 degrees from the side. 38 C.F.R. § 4.71a. Diagnostic Code 5201 was amended in February 2021 to clarify that "at shoulder level" equaled flexion and/or abduction limited to 90 degrees, and "midway between the side and shoulder level" equaled flexion and/or abduction limited to 45 degrees.

Under Diagnostic Code 5202, a 20 percent rating is warranted when there is malunion of the humerus with either moderate or marked deformity of the minor extremity. A 20 percent rating is warranted when there is marked deformity. For recurrent dislocations of the minor shoulder at the scapulohumeral joint, a 20 percent rating is warranted for infrequent episodes and guarding of movement only at shoulder level. A 20 percent rating is warranted for frequent episodes and guarding of all arm movements. For fibrous union, a 40 percent rating is warranted. A 50 percent rating is warranted for nonunion (false flail joint). A 70 percent rating is warranted for loss of head of (flail shoulder). 38 C.F.R. § 4.71a, Diagnostic
there is malunion of the humerus with either moderate or marked deformity of the minor extremity. A 20 percent rating is warranted when there is marked deformity. For recurrent dislocations of the minor shoulder at the scapulohumeral joint, a 20 percent rating is warranted for infrequent episodes and guarding of movement only at shoulder level. A 20 percent rating is warranted for frequent episodes and guarding of all arm movements. For fibrous union, a 40 percent rating is warranted. A 50 percent rating is warranted for nonunion (false flail joint). A 70 percent rating is warranted for loss of head of (flail shoulder). 38 C.F.R. § 4.71a, Diagnostic Code 5202. Diagnostic Code 5202 was amended in February 2021 to clarify that "at shoulder level" equaled flexion and/or abduction at 90 degrees.

Diagnostic Code 5203 provides for ratings for impairment of the clavicle or scapula. Dislocation and nonunion with loose movement warrant a 20 percent rating and without loose movement warrants a 10 percent rating. Malunion of the joint warrants a 10 percent rating or a rating on impairment of function of contiguous joint.

Analysis

Based on the above, evidence, the Board finds that an evaluation in excess of 20 percent for the Veteran's service connected left shoulder disability is not warranted. In this regard, there is no medical evidence that indicates range of motion is limited to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees), or that he was diagnosed with ankylosis of the scapulohumeral articulation, or impairment of the humerus joint. The Board observes that the Veteran's right shoulder disorder for this period warrants no more than a 20 percent rating under either the old or the new rating criteria.

The Board acknowledges the lay statements made by the Veteran in this claim but also finds that the Veteran is not competent to provide range of motion studies because this is a medical finding. Further, in light of the Veteran's apparent exaggeration of his symptoms in December 2020 and March 2021 examinations, the Board finds the VA examiners' opinions more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have medical training and examined the Veteran using diagnostic equipment.

Consequently, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's right shoulder disability under Diagnostic Code 5201.

As to higher and/or separate ratings under other diagnostic criteria, the record contains no evidence of an impairment of the humerus and does not document dislocation, nonunion, or malunion of the clavicle and scapula. Moreover, the Veteran has not described symptoms that are suggestive of an impairment of the humerus, clavicle, or scapula.

Consequently, the Board finds there is no higher or separate rating available for the Veteran's right shoulder disability under Diagnostic Code 5202 or Diagnostic Code 5203 at any time during the appeal.

In reaching these conclusions, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38?U.S.C. §?5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran's service-connected left shoulder strain, the minor joint, is not manifest by range of motion of the arm limited to 25 degrees or less from the side, ankylosis of the scapulohumeral articulation, or impairment of the humerus joint. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

Service Connection

Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and
from the side, ankylosis of the scapulohumeral articulation, or impairment of the humerus joint. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

Service Connection

Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (holding all that is needed is a "but for" causation or aggravation to show entitlement to secondary service connection).

In rendering this decision, the Board has reviewed all evidence of record whether discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). To the extent the evidence is found in "approximate balance," the Board will afford the benefit of the doubt in favor of the Veteran. Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021) (holding that exact equipoise is not required for the benefit of the doubt to be applied, but rather the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal").

1. Entitlement to service-connection for a right shoulder disability

The Veteran maintains that he suffers from a right shoulder disability that is a result of his active duty service. The Veteran also maintains that his right shoulder disability is secondary to his service-connected left shoulder disability.

The rating decision on appeal made favorable findings that the Veteran had an in-service occurrence of qualifying event, injury, or disease had its onset during active duty service. The Veteran's service treatment records show a September 24, 2014, complaint of right shoulder pain. The Board will not disturb this favorable finding. See 38 U.S.C. §§ 5104 (b)(4), 5104A; 38 C.F.R. § 20.801(a) (all favorable findings towards claimants are binding upon all subsequent adjudicators, unless clear and unmistakable evidence is shown to the contrary to rebut such favorable findings).

Therefore, the question for the Board is whether the Veteran has a right shoulder disability and if so whether there is a causal relationship between the current disability and the conceded in-service disease or injury.

Factual Background

The Veteran underwent a VA examination of his shoulders in April 2015. The Veteran was diagnosed with a right shoulder strain. He reported bilateral shoulder pain since approximately 2012 associated with push-ups during physical training. He reported treating the condition with motrin and denied any history of dislocations. At that time of the examination he reported no pain in his shoulders and indicated the pain is there with physical activities. On examination he had reduced motion of 80 degrees in internal rotation of the right knee. Pain was noted on exam during internal rotation and caused functional loss. There was evidence of crepitus but no objective evidence of tenderness to palpation.

As noted above, a March 2020 VA examination of the Veteran's shoulders found that the Veteran had full range of motion and did not exhibit any pain in his right shoulder. No diagnosis of a right shoulder condition was made.

The Veteran underwent another VA examination of the shoulders in December 2020. The examiner did not diagnose the Veteran with a right shoulder disability, finding that they were unable to test the Veteran due to exaggeration of symptoms.

The Veteran submitted a December 2020 independent medical evaluation which finds that the Veteran suffers from pain in his right shoulder which the examiner opines is secondary to his service-connected left shoulder disability. The provider does not appear to have personally examined or interviewed the Veteran and no range of motion measurements or other criteria helpful in rating the disabilities was provided. The opinion is accorded limited probative weight.

The Veteran underwent another examination of his shoulders in
pain in his right shoulder. No diagnosis of a right shoulder condition was made.

The Veteran underwent another examination of his shoulders in March 2021. The examiner again noted that the Veteran exaggerated his symptoms. The examiner was unable to obtain range of motion measurements. the examiner noted that the Veteran moaned and was "extremely limited" in flexion, abduction, and rotation but after this was able to put on his hoodie, place his hands behind his back with no apparent difficulty. The examiner found that the Veteran's presentation was inconsistent with his presentation with a muscular physique or with records indicating he had an active lifestyle and engaged in physical exercise.

Analysis

The Board finds the opinions of the March 2020, December 2020, and March 2021 examiners to be highly persuasive and probative in finding that the evidence does not support that the Veteran has a current right shoulder disability that was a result of service, to include as secondary to a left shoulder disability.

Although the Veteran sincerely believes that he acquired a back disability in service, and he is certainly competent to report as to the observable symptoms he experiences and their history, he cannot self-diagnose because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to any injuries incurred therein, is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").

The Board finds that the specific, reasoned opinions of the VA examiners of greater probative weight than the more general lay assertions in this regard. The examiners have training, knowledge, and expertise on which they relied to form the opinions, and the examiners provided rationale for the conclusions reached. As noted, there is no competent medical evidence that supports the claim.

In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38?U.S.C. §?5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran does not have right shoulder disability that was incurred in or a result of his active duty service, or that is secondary to a service-connected disability. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

2. Entitlement to service connection for a right knee disability

The Veteran maintains that he suffers from a right knee disability that is a result of his active-duty service.

The Board will not disturb this favorable finding. See
, the evidence persuasively favors a finding that the Veteran does not have right shoulder disability that was incurred in or a result of his active duty service, or that is secondary to a service-connected disability. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

2. Entitlement to service connection for a right knee disability

The Veteran maintains that he suffers from a right knee disability that is a result of his active-duty service.

The Board will not disturb this favorable finding. See 38 U.S.C. §§ 5104 (b)(4), 5104A; 38 C.F.R. § 20.801(a) (all favorable findings towards claimants are binding upon all subsequent adjudicators, unless clear and unmistakable evidence is shown to the contrary to rebut such favorable findings).

Therefore, the question for the Board is whether the Veteran has a current back disability and if so whether there is a causal relationship between the current disability and the conceded in-service disease or injury.

The Veteran underwent a VA examination of his knees in March 2020. The examiner found that the Veteran did not have a current diagnosis of a knee disability. The Veteran had a full range of motion of the right knee without evidence of pain.

The Veteran submitted a December 2020 independent medical evaluation which finds that the Veteran suffers from pain in his right knee which the examiner opines is a result of his service-. The provider does not appear to have personally examined or interviewed the Veteran and no range of motion measurements or other criteria helpful in rating the disabilities was provided. The opinion is accorded limited probative weight.

The Veteran underwent another VA examination of his knees in December 2020. The examiner also found that the Veteran did not have a current diagnosis of a right knee disability. The examiner was unable to obtain range of motion measurement due to symptom exaggeration on the part of the Veteran. The examiner found that while the Veteran claimed to have severe pain when the examiner placed the flat of her palm on his knee, performed range of motion with stuttering motions to flexion of 90 degrees, but was observed sitting comfortably in a chair with the right knee flexed. The examiner opined that the claimed right knee condition was less likely than not incurred in or caused by service. The December 2020 examiner explained that the only injury in the reported car accident during service was a right knee contusion which would not cause a long-term disability. The examiner found that no diagnosis of a right knee disability was made.

The Veteran was provided with another VA examination of his knees in April 2021. The examiner again opined that there was insufficient evidence for a right knee diagnosis and noted repeated symptom exaggeration.

The Board finds the opinion of the March 2020, December 2020, and April 2021 VA examiners to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran has a current right knee disability that was related to his in-service complaint of knee pain. The examiners' findings were based on a review of the evidence, including the service and post service treatment records, an interview of the Veteran and examination, which did not substantiate a finding that the Veteran incurred a right knee disability during active-duty service.

Although the Veteran sincerely believes that he acquired a right knee disability in service, and he is certainly competent to report as to the observable symptoms he experiences and their history, he cannot self-diagnose because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to any injuries incurred therein, is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").

The Board
, 1376-77 (Fed. Cir. 2007). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to any injuries incurred therein, is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").

In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38?U.S.C. §?5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran does not have a right knee disability that is a result of his active-duty service. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

3. Entitlement to service connection for a back disability

The Veteran maintains that he suffers from a back disability that is a result of his active duty service.

The rating decision on appeal made favorable findings that the Veteran has a qualifying event, injury, or disease that had its onset during your service. Service treatment records showed a complaint of lower back pain on December 20, 2012. The Board will not disturb this favorable finding. See 38 U.S.C. §§ 5104 (b)(4), 5104A; 38 C.F.R. § 20.801(a) (all favorable findings towards claimants are binding upon all subsequent adjudicators, unless clear and unmistakable evidence is shown to the contrary to rebut such favorable findings).

Factual Background

The Veteran underwent a general medical compensation examination in April 2015, which, notably, found musculoskeletal issues involving his shoulder, wrist, and feet. There is no indication of any reported back disorder or limitation.

Presbyterian health records from August 2016 show that the Veteran complained of back pain with the first episode starting approximately one month prior. X-ray imaging of the lumbosacral spine was obtained which showed normal appearance of the lumbar spine and the etiology of the Veteran's back pain was not identified.

The Veteran underwent a VA examination of his back in March 2020. He reported moving a piece of metal in approximately 2010 and feeling a crack in his back and has had back pain since. The Veteran had a full range of motion on examination, was observed performing repetitive motions without any loss of functional ability and no pain was noted on examination. The examiner found that the Veteran did not have a diagnosed thoracolumbar condition.

The Veteran underwent another examination of his back in December 2020. The examiner again found that the Veteran did not have a diagnosis of a thoracolumbar spine condition. The Veteran reported that he did some heavy lifting in approximately 2011 and began experiencing back pain. The Veteran reported that the pain never resolved, and he takes gabapentin, ibuprofen, and muscle relaxers for the condition. The examiner noted that she was unable to test the Veteran for range of motion measurements or limitations. The examiner found that the Veteran's presentation on the examination was not consistent with reality. The Veteran stated that he was entirely unable to flex, but was observed bending over and putting on his shoes after the exam. On extension the Veteran was able to extend 0 to 3 degrees, which the examiner also found to
examiner again found that the Veteran did not have a diagnosis of a thoracolumbar spine condition. The Veteran reported that he did some heavy lifting in approximately 2011 and began experiencing back pain. The Veteran reported that the pain never resolved, and he takes gabapentin, ibuprofen, and muscle relaxers for the condition. The examiner noted that she was unable to test the Veteran for range of motion measurements or limitations. The examiner found that the Veteran's presentation on the examination was not consistent with reality. The Veteran stated that he was entirely unable to flex, but was observed bending over and putting on his shoes after the exam. On extension the Veteran was able to extend 0 to 3 degrees, which the examiner also found to be unreliable. The examiner noted that he had a full range of motion at the March 2020 examination and has a clear history in his treatment records of being very active and was observed with a muscular physique which is inconsistent with his presentation. The examiner found that there was therefore insufficient evidence. The examiner opined that the claimed back condition was less likely than not incurred in or caused by service. The December 2020 examiner explained that the only injury in the reported car accident during service was a right knee contusion which would not cause a long-term disability. The examiner found that no diagnosis of a back disability was made.

Analysis

The Board finds the opinion of the March 2020 and December 2020 VA examiners to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran has a current back disability that was related to his in-service complaint of back pain. The examiners' findings were based on a review of the evidence, including the service and post service treatment records, an interview of the Veteran and examination, which did not substantiate a finding that the Veteran incurred a chronic back disability during active-duty service.

In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38?U.S.C. §?5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran does not have a right knee disability that is a result of his active-duty service. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Woehlke, V.

The Board's decision in

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