Citation Nr: 1311240 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 08-14 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for left shoulder bursitis prior to December 5, 2011. 2. Entitlement to a rating greater than 20 percent for left shoulder bursitis from December 5, 2011. 3. Entitlement to an initial compensable rating for a lumbar spine disorder prior to December 5, 2011. 4. Entitlement to a rating greater than 20 percent for lumbar strain from December 5, 2011. 5. Entitlement to a separate rating for right lower extremity radiculopathy associated with service-connected lumbar strain. 6. Entitlement to a separate rating for left lower extremity radiculopathy associated with service-connected lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which in pertinent part, denied service connection for a heart condition claimed as syncope, and awarded service connection for left shoulder bursitis and lumbar strain each with an initial noncompensable evaluation effective August 1, 2006. In an October 2008 rating decision, the RO granted an initial evaluation of 10 percent for the Veteran's left shoulder bursitis, effective August 1, 2006. In a January 2013 rating decision, the RO awarded an increased rating of 20 percent for the Veteran's lumbar strain and an increased rating of 20 percent for left shoulder bursitis. Both ratings were made effective December 5, 2011. These issues have remained on appeal, as the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, (1993). While the Veteran's appeal was in remand status, his claim for entitlement to service connection for syncope was granted in a January 2013 rating decision. This action constitutes a full grant of the benefit sought on appeal with respect to this issue, and it is no longer before the Board. FINDINGS OF FACT 1. From October 10, 2008, the Veteran's left shoulder bursitis was manifested by range of motion with flexion to 150 degrees and abduction to 170 degrees. Additional functional loss manifested by pain on range of motion additionally limited the left shoulder range of motion resulting in flexion to 90 degrees and abduction to 90 degrees. 2. From December 5, 2011, the Veteran's left shoulder bursitis was manifested by range of motion with flexion to 90 degrees and abduction to 80 degrees. 3. Prior to December 5, 2011, the Veteran's lumbar strain was manifested by painful limited motion; without clinical evidence of limited motion to less than 85 degrees of flexion, including on repetition; and without clinical evidence of muscle spasm or guarding severe enough to result in abnormal gait or spinal contour; ankylosis; or intervertebral disc syndrome. 4. From December 5, 2011, the Veteran's lumbar strain was manifested by flexion to 50 degrees including on repetition; with no evidence of ankylosis or intervertebral disc syndrome. 5. An EMG and nerve conduction study conducted on January 9, 2012, showed objective neurological manifestations in the lower extremities consistent with mild chronic S1 radiculopathy associated with the lumbar strain. CONCLUSIONS OF LAW 1. Since October 10, 2008, the criteria for an increased rating of 20 percent for left shoulder bursitis are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5019-5201 (2012). 2. From December 5, 2011, the criteria for a rating greater than 20 percent for left shoulder bursitis are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5019-5201 (2012). 3. Prior to December 5, 2011, the criteria for a 10 percent evaluation, and no greater, for lumbar strain are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 4. From December 5, 2011, the criteria for an increased rating greater than 20 percent for lumbar strain are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 5. Since January 9, 2012, the criteria for a separate rating of 10 percent, for S1 radiculopathy of the right lower extremity are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124, Diagnostic Code 8520 (2012). 6. Since January 9, 2012, the criteria for a separate rating 10 percent, for S1 radiculopathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Letters dated in February 2007, May 2008, and June 2008 satisfied the duty to notify provisions, to include notifying the Veteran of the regulations pertinent to the establishment of effective dates and disability ratings. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The Veteran was provided with VA examinations addressing the severity of his left shoulder and lumbar spine disorders in April 2007, October 2008, December 2011, and January 2013. Although the Veteran argued that the April 2007 VA examination was not adequate as the examiner tested passive range of motion instead of active range of motion, the examination report reflects that both active and passive range of motion were tested; thus, the Board does not find the April 2007 VA examination to be inadequate for rating purposes. Moreover, the record does not reflect that any of the subsequent examinations provided are inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Each examiner conducted a physical examination, recorded clinical findings to include range of motion and neurologic testing, and documented the Veteran's subjective complaints. No additional evidence, relevant to the issues adjudicated in this decision, appears to be available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, as in this case, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Burton v. Shinseki, 25 Vet. App. 1 (2011). Also, in claims for increased ratings for musculoskeletal disabilities where the Veteran has a noncompensable rating and complains of pain on motion, the Veteran 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. Burton, id. When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see DeLuca v. Brown, 8 Vet. App. 202 (1995). The lumbar spine is considered a group of minor joints. 38 C.F.R. § 4.45(f). I. Left Shoulder Bursitis Service connection for left shoulder bursitis was granted in May 2007, and a noncompensable evaluation was assigned, effective August 1, 2006, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5019. In an October 2008 rating decision, the RO granted an initial evaluation of 10 percent for the Veteran's left shoulder bursitis under 38 C.F.R. § 4.71a, Diagnostic Code 5019, effective August 1, 2006. In a January 2013 rating decision, the RO awarded an increased rating of 20 percent for left shoulder bursitis, effective December 5, 2011, under 38 C.F.R. § 4.71a, Diagnostic Codes 5019-5201. The hyphenated code under which the Veteran's left shoulder is evaluated is intended to show that the Veteran's left shoulder bursitis was rated analogously to limitation of motion of the left arm under Diagnostic Code 5201. See 38 C.F.R. §§ 4.20, 4.27 (2012). Diagnostic Code 5019 provides that bursitis will be rated based on limitation of motion of the affected part, as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5019 (2012). Diagnostic Code 5201, for limitation of the arm, provides for a 20 percent rating when limitation of the minor arm is at shoulder level or midway between the side and shoulder level and a maximum 30 percent evaluation when limitation of motion of the minor arm is to 25 degrees from the side. Diagnostic Code 5003 states that, for degenerative arthritis, when the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). In April 2007, the Veteran underwent a VA joints examination. He complained of left shoulder symptoms since December 2004, and indicated that he had a biceps reattachment. The Veteran reported that he was right-hand dominant. On examination, there were no constitutional symptoms of arthritis and no incapacitating episodes of arthritis. There was no deformity, giving way, instability, pain, stiffness, weakness, episodes of dislocation or subluxation, locking episodes, effusion, inflammation, or flare-ups of joint disease. Physical examination of the left shoulder showed active and passive flexion from 0 to 180 degrees with no pain. There was active and passive left shoulder abduction from 0 to 180 degrees, and active and passive internal and external rotation from 0 to 90 degrees. There was no additional limitation of motion on repetitive use. There was no loss of a bone or part of a bone, no recurrent dislocations, no inflammatory arthritis, and no joint ankylosis. X-rays of the left shoulder showed no significant degenerative disease. There were multiple metallic fragments from a prior shrapnel injury as well as a cortical defect in the lateral aspect of the humeral shaft which was either the result of an old projectile injury or operative intervention. The diagnosis was left shoulder bursitis. The examiner found that the Veteran's left shoulder disorder caused mild effects on his ability to perform chores, shopping, exercise, recreation, and traveling, and moderate effects on his ability to engage in sports. There were no effects on feeding, bathing, dressing, toileting, or grooming. A February 2008 private treatment record notes that the Veteran had a prior history of a left shoulder gunshot wound with resulting bursitis and impingement. Physical examination of the left arm showed that passive range of motion was intact, but active range of motion was decreased with 20 degrees lost from adduction and 35 degrees lost from abduction. The diagnosis was left shoulder pain. An April 2008 letter from S. Fogarty, M.D. indicates that the Veteran was recently seen for evaluation of left shoulder pain. On examination, he had an old surgical scar and limited range of motion of the left shoulder. In October 2008, the Veteran underwent another VA joints examination. He noted a history of several injuries to his left shoulder beginning in 1984 prior to entering service with a gunshot wound, a second injury during service in December 2004 when he slipped on stairs and nearly pulled his shoulder out (called bursitis), and a third injury in May 2005 when he pulled his shoulder, rupturing his biceps tendon. He reported symptoms of pain which came and went a couple of times per week. He noted that he underwent reattachment of the biceps tendon to the left shoulder in June 2005. The Veteran stated that he was right-hand dominant. There were no constitutional symptoms of arthritis and no incapacitating episodes of arthritis. The Veteran denied joint symptoms of deformity, giving way, instability, weakness, locking episodes, episodes of dislocation or subluxation, effusion, inflammation, and flare-up of joint disease, but reported pain and stiffness in the left shoulder. Physical examination revealed left shoulder range of motion with active and passive flexion to 150 degrees with pain at 90 degrees, active and passive abduction to 170 degrees with pain at 90 degrees, active and passive external rotation to 90 degrees with pain, and active and passive internal rotation to 90 degrees with pain. There was no additional limitation of motion on repetitive use. There was no loss of a bone or part of a bone, recurrent shoulder dislocations, inflammatory arthritis, or joint ankylosis. X-rays of the left shoulder showed no evidence of degenerative joint disease, and no change from the April 2007 X-rays with regard to the shrapnel fragments and cortical defect. The diagnosis was history of bursitis in the left shoulder with status post surgical repair of a ruptured bicep tendon. The examiner reported that the Veteran's left shoulder disorder caused moderate effects on his ability to perform chores, exercise, sports, and recreation, and no effects on his ability to shop, travel, feed himself, bathe, dress himself, toilet, or groom. The examiner also noted that the Veteran worked as an aircraft mechanic on a full-time basis. In October 2008, the Veteran also underwent a VA scars examination. The examiner indicated that the examination was not for head, neck, or face scarring, and the etiology of the scar was due to shoulder injury in June 2005 requiring surgical repair of a tear to the bicep tendon. Physical examination showed a scar on the anterior surface of the left upper extremity. The maximum width of the scar was 1/2 inch, and the maximum length was 1 inch. There was no tenderness to palpation, no adherence to underlying tissue, no resulting limitation of motion or loss of function, no underlying soft tissue damage, and no skin ulceration or breakdown over the scar. The diagnosis was status post surgical repair of a ruptured bicep tendon with well-healed scars. The examiner indicated that there was a second scar relating to the Veteran's left shoulder surgery, also located on the anterior surface of the left upper extremity. The maximum width of the scar was 1/2 inch, and the maximum length of the scar was 1 inch. There was no tenderness on palpation, no adherence to underlying tissue, no resulting limitation of motion or loss of function, no underlying soft tissue damage, and no skin ulceration or breakdown over the scar. The diagnosis was status post surgical repair of the left shoulder bicep tendon with two scars. In December 2011, the Veteran underwent another VA joints examination. The Veteran reported a gunshot wound to the left shoulder prior to service. He also noted that he injured his left shoulder during service when he caught a person falling on an escalator, tearing his left bicipital tendon. He stated that he is right hand dominant. He denied flare-ups impacting the function of his shoulder. Physical examination revealed range of motion of the left shoulder with flexion to 125 degrees with pain at 120 degrees and left shoulder abduction to 85 degrees with pain at 80 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. After repetitive use testing, the Veteran's left shoulder range of motion showed flexion to 120 degrees and abduction to 80 degrees. The examiner indicated that the Veteran did have additional limitation in range of motion of the shoulder and arm following repetitive-use testing, and that he also had functional loss or functional impairment of the shoulder and arm, including less movement than normal, weakened movement, excess fatigability, and pain on movement. The Veteran had localized tenderness or pain on palpation of the shoulder, and he demonstrated guarding of the left shoulder. Muscle strength was 4/5 in left shoulder abduction and forward flexion. There was no evidence of ankylosis. A Hawkins' impingement test was positive on the left, an empty-can test was positive on the left, and an external rotation/Infraspinatus strength test was positive on the left. A lift-off subscapularis test was negative. There was no history of mechanical symptoms or recurrent dislocation of the glenohumeral joint. A crank apprehension test was negative. The Veteran did not have an AC joint condition or any other impairment of the clavicle or scapula. There was no tenderness to palpation of the AC joint. A cross-body adduction test was negative. The examiner noted that the Veteran had left shoulder surgery to the bicipital tendon in August 2004, and noted that there was a 1.5 centimeter scar in the anteriomedial axillary area of the proximal left arm. The examiner stated that the Veteran's scars related to his left shoulder disorder were not painful or unstable and did not have a total area greater than 39 square centimeters. The examiner reported that the Veteran's left shoulder disorder did not cause functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner indicated that the Veteran's shoulder did not impact his ability to work. The diagnoses included gunshot wound to the left shoulder and left bicipital tendon rupture. A May 2012 VA treatment record notes a diagnosis of left shoulder bursitis with calcific tendonitis. A July 2012 VA treatment record reflects the Veteran's complaints of left shoulder pain. He described sharp, shooting pains up his left neck when reaching behind himself, cramping when lifting, and pinching down the left anterior arm with flexing the bicep. There was no swelling or redness. There was popping in the left shoulder. The Veteran denied numbness, tingling, and morning stiffness. The treatment record indicates that range of motion of the left shoulder was very limited. Physical examination revealed a well-healed scar at the proximal anterior arm and gunshot wound entrance with exit wound on the anterior and posterior shoulder. There was no atrophy or fasiculations and no gross deformity. The left shoulder was protracted. There was tenderness to palpation along the bicipital groove and corticoid process and the pectoralis major and minor. There was mild tenderness in the AC joint. The physician noted that scar tissue was freely mobile and not tethered to underlying tissue. Range of motion of the left shoulder showed active flexion to 90 degrees and full external and internal rotation. There was pain anteriorly with shoulder adduction. Strength was 4/4 with left shoulder abduction. Sensation was intact to light touch in the bilateral upper extremities. Deep tendon reflexes in the upper extremities were 2+ and symmetric. A Hawkins test was positive, a Neers test was equivocal, a Speeds test was positive, an O'Briens test was negative, and an Empty can test was positive. X-rays of the left shoulder showed no new fracture or dislocation and no subluxation of the humeral head. There were scattered metallic fragments overlying the left shoulder and well-demarcated linear lucency through the lateral cortex of the proximal humeral diaphysis was unchanged. There was a small calcific density projecting over the second left rib, which was new and of unknown clinical significance. The physician noted that there was no evidence of AC degenerative changes. The diagnoses were chronic left biceps tendonopathy, post-surgical restrictions, left infraspinatus impingement, and no significant osteoarthritis. The physician noted that there was no evidence of neurologic impairment, such as cervical radiculopathy. Prior to December 5, 2011, the evidence (e.g. the April 2007 VA examination or in the February 2008 private treatment record) reflects that the Veteran's left shoulder range of motion was not limited to shoulder level or midway between the side and shoulder level. However, the October 10, 2008, VA examination report reflects that the Veteran had functional loss in the left shoulder due to pain, which effectively limited the range of motion in his arm to no more than shoulder level. See DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45 (2012). Accordingly, the evidence of record supports a higher rating of 20 percent during the initial appeal period, but only from October 10, 2008. Fenderson, 12 Vet. App. at 126; Hart, 21 Vet. App. at 509. The Board further finds that the 20 percent rating adequately portrays the Veteran's functional loss due to pain in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59, and demonstrates that any such functional loss is contemplated. On and after December 5, 2011, the evidence shows range of motion of the left arm with flexion to 125 degrees with pain at 120 degrees, and abduction to 85 degrees with pain at 80 degrees. Another record reflects that left arm flexion was limited to 90 degrees. The evidence does not suggest that left arm range of motion was limited to 25 degrees from the side at any time on or after December 5, 2011; therefore, a rating greater than 20 percent is not warranted for left arm limitation of motion for any period of time on and after December 5, 2011. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Whether the Veteran's left shoulder disability resulted in a level of functional loss greater than that already contemplated by the assigned ratings for any part of the appeal period has been considered. DeLuca. There is evidence that the Veteran experienced pain during left shoulder range of motion testing during the December 2011 VA examination. The December 2011 VA examination also reflects reduced range of motion due to weakness and fatigability. Nonetheless, the reduced limitation of motion due to pain, weakness, and fatigability reported in the December 2011 VA examination is not sufficient to warrant a higher rating because even with consideration of the additional loss of motion, the evidence does not show that range of motion of the left arm was more nearly reduced to 25 degrees from the side. Otherwise, the evidence does not reflect functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 that is not already contemplated by the currently assigned rating. Other potentially applicable diagnostic codes have also been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). But the objective medical evidence of record does not reflect ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203 (2012). Accordingly, increased ratings for the Veteran's left shoulder disability are not warranted based on alternate diagnostic codes. The Board has also considered whether a separate evaluation is warranted for the Veteran's left shoulder scars. Such a separate evaluation may only be assigned if there are separate and distinct manifestations from the same injury. During the pendency of this appeal, VA revised the criteria for diagnosing and evaluating the skin, effective October 23, 2008. See 73 Fed. Reg. 54708-12 (Sept. 23, 2008). With regard to the revision made to the skin regulations effective October 23, 2008, the revised criteria apply to all applications for benefits received by VA on or after that date. As the Veteran's claim was received prior to October 23, 2008, the revised criteria are not for application in this case. The amendment allows for a Veteran to request a review of a scar disability under the revised criteria irrespective of whether the Veteran's disability has increased since the last review. Id. However, no such request has been made. Accordingly, the Veteran's left shoulder scars will not be considered under the revised criteria effective October 23, 2008. A separate rating for the Veteran's left shoulder scars is not warranted in this case, as there is no evidence that the Veteran's scars were deep, caused limited motion, exceeded 144 square inches (929 square centimeters), were unstable, were painful on examination, or caused limitation of function of the arm. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2008). Accordingly, a separate evaluation for left shoulder scars is not warranted. Based on the foregoing, an initial evaluation greater than 10 percent for left shoulder bursitis is not warranted. An increased rating of 20 percent is awarded, but only effective from October 10, 2008. An increased rating greater than 20 percent is not warranted on and after December 5, 2011. The preponderance of the evidence is against the assignment of ratings greater than those currently assigned, and there is no doubt to be resolved. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Lumbar Strain Service connection for lumbar strain was granted in May 2007, and a noncompensable evaluation was assigned, effective August 1, 2006, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237. In a January 2013 rating decision, the RO awarded an increased rating of 20 percent, effective December 5, 2011, under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237 is subsumed into the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, General Rating Formula (2012). Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height warrants a 10 percent rating. Id. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Id. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating; unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating; and unfavorable ankylosis of the entire spine warrants the maximum 100 percent rating. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In April 2007, the Veteran underwent a VA spine examination. He denied prior hospitalization or surgery for his spine disorder as well as urinary incontinence, urinary urgency, urinary retention requiring cathertization, urinary frequency, nocturia, fecal incontinence, constipation, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, unsteadiness, visual dysfunction, and dizziness. He also denied fatigue, decreased motion, stiffness, weakness, spasms, pain, and flare-ups of spinal conditions. He reported that he did not use any devices or aids and that there were no limitations on walking. Physical examination showed no spasm, atrophy, guarding, pain with motion, tenderness, or weakness in the lumbar spine. There was normal posture, head position, and gait, and symmetry in appearance. There was no gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, or reverse lordosis. There was full strength in all hip, knee, ankle and toe muscles and no evidence of muscle atrophy. A sensory examination was normal in the lower extremities. Reflexes were all normal and there was no evidence of thoracolumbar spine ankylosis. Range of motion of the thoracolumbar spine revealed active and passive flexion to 90 degrees, active and passive extension from 0 to 30 degrees, active and passive right and left lateral flexion from 0 to 30 degrees, and active and passive right and left lateral rotation from 0 to 30 degrees. There was no evidence of pain on range of motion, and no pain after repetitive use. There was also no additional loss of motion on repetitive use of any joint. Lasegue's sign was negative, and straight leg raising was to 90 degrees with both legs. X-rays of the lumbar spine were normal. The diagnosis was strain of the lumbar spine. The examiner reported that the Veteran's lumbar spine disorder had no significant effects on his usual occupation or usual daily activities. In April 2007, the Veteran also underwent a VA peripheral nerves examination. He reported that he had bilateral peripheral neuropathy related to the lumbar spine. However, the examiner noted that although the Veteran was claiming peripheral neuropathy, he did not describe true peripheral nerve pain. Physical examination revealed normal motor function and nerves in all upper and lower muscles. A sensory examination was completely normal and reflexes were also normal. There was no muscle atrophy; abnormal muscle tone or bulk; tremors, tics, or other abnormal movements; abnormal gait or balance; and there was no function of any joint affected by a nerve disorder. The examiner reported that no tests, such as electromyography or nerve conduction tests, were ordered because the Veteran did not describe peripheral neuropathy. The examiner concluded that a diagnosis of peripheral neuropathy was not indicated based on examination. Private medical treatment records from January 2007 to January 2009 note the Veteran's complaints of low back pain and reveal that he underwent physical therapy for his symptoms. The records show diagnoses of low back pain, L5-S1 entrapment, sciatic nerve pain. In January 2007, the Veteran reported that he hurt his back nine days before, and noted stiffness and lack of bowel movement since the injury. There was pain to palpation at the left S1 joint, which caused electric pain down the left leg. A March 2007 record notes that the Veteran's low back pain presented like a neuroentrapment at the L5-S1 region and/or an unstable vertebral segment at that level. In an April 2008 letter, S. Fogarty, M.D. reported that the Veteran was first seen in January 2007 for sciatica and ultimately sent to physical therapy with good results. An October 2008 private record notes that the Veteran injured his right lower back the day before while moving a gurney when working as a volunteer on an ambulance. He stated that he had problems with his back in the past, but nothing to this extent. He denied numbness and tingling in the lower extremities. Physical examination of the spine showed no obvious deformity. He was able to extend both lower legs without experiencing any pain in the low back. Deep tendon reflexes were equal, bilaterally. The physician was not able to test any muscle strength without flexing the hip due to the pain, but the Veteran could raise both toes and feet against resistance. The diagnosis was low back pain, lumbar strain. Another October 2008 record reflects that the Veteran reported that his back still hurt on the right side, more over the sacroiliac joint. The diagnosis was low back pain. X-rays of the lumbar spine were conducted in October 2008, which were normal. In October 2008, the Veteran's physical therapist noted that the Veteran was seen that month with a diagnosis of sacroiliac joint pain and dysfunction. The Veteran presented with severe low back pain and frequent muscle spasms which occurred with movement. He was very tender to palpation over the right sacroiliac joint with a positive Faber test, a functional leg length discrepancy, and an anterior rotation of the right inomminate. Side bending and rotation to the right were the most limited and painful motions. The physical therapist noted that, since that injury, the Veteran's pain level and inflammation were much improved. An early November 2008 record reflects that the Veteran reported that his back was getting better and was less stiff. He denied numbness or tingling in his lower legs with pain mainly in the right lower back. Examination of the spine showed flexion to almost 90 degrees but limited extension. The Veteran could lateral bend to the left but had difficulty bending to the right. He could walk on his tiptoes and heels. Deep tendon reflexes were 1+ and equal, bilaterally. Muscle strength was 5/5. The diagnosis was low back pain, strain. Another November 2008 record notes that the Veteran was being followed for an injury to his low back from lifting a gurney. Physical examination of the spine showed flexion to greater than 90 degrees without any discomfort. He could lateral bend with mild discomfort and extend with very little discomfort. He could ambulate without difficulty on his heels and tiptoes. The diagnosis was sacroiliitis, low back pain. A December 2008 record reflects that the Veteran reported constant ache in the low back. Range of motion showed flexion to 90 degrees without much difficulty. Lateral bending to the right caused some discomfort, but other range of motion was full. Muscle strength was 5/5 in the lower extremities and deep tendon reflexes were 1+ and equal, bilaterally, in the lower extremities. The diagnosis was sacroiliitis, low back pain. In January 2009, the Veteran said that he felt that he could go back to work. He had full range of motion of the spine with good flexion and extension and no discomfort. The diagnosis was low back pain/strain, resolving. In December 2008, the Veteran's physical therapist reported that the Veteran was 95 percent rehabilitated, but had come to a plateau in his recovery. He was recommended to be discharged from physical therapy. A January 2009 physical therapy report indicates that the Veteran returned to work full-duty. He noted that minimal symptoms remained, and was discharged from physical therapy. In December 2008, the Veteran underwent an independent medical examination. The Veteran reported that, while working as an EMT, he attempted to place a patient into the back of an ambulance by lifting the back portion of a gurney, and injured his lower back while doing so. He noted that he currently had pain, which he rated as a 2 on a 1 to 10 scale. He indicated that the pain was located in the right mid and low lumbar area and did not extend into the buttocks or lower extremities. He denied any numbness or tingling. The Veteran reported that he was released to return to his regular work as an aircraft mechanic, but noted that he had restrictions including a five pound lift restriction, allowing him to change positions frequently, and a four hour per day shift limitation. Physical examination showed normal reflexes in the knees but slightly diminished ankle reflexes. Lower extremity sensory testing showed no lateralizing dermatomal sensory loss or distal sensory loss. Motor testing revealed symmetrical strength of toe extension, ankle dorsiflexion, ankle plantar flexion, and knee flexion and extension. The Veteran exhibited no lower extremity atrophy or fasciculations. Calf circumference was symmetrical and straight leg raises were negative while seated and to 80 degrees, bilaterally, while supine. There was diffuse tenderness to palpation within the right paralumbars and mild tenderness within the midline of the low lumbar spine. There was minimal tenderness on the left and no sacroiliac tenderness or palpable spasm. There was normal lumbar lordotic curve with protuberant abdomen and no scoliosis. There was no leg length discrepancy. Hips and shoulders carried level. Range of motion showed forward flexion to 90 degrees, extension to 30 degrees, and lumbar lateral flexion to 30 degrees on the left and to 15 degrees on the right with pain on right lateral flexion. Waddell's testing was negative with no statements of increased low back pain with thoracic rotation to the left or right or with axial compression applied to the top of the head. The Veteran ambulated with a normal gait pattern and used no assistive devices. The examiner concluded that the Veteran sustained a lumbar strain on the date of his injury in October 2008. He noted that the Veteran did not exhibit features of lumbar disc herniation or lower extremity neurologic deficits or other factors. VA treatment records from April 2007 through September 2011 note sporadic complaints and diagnoses of low back pain. In August 2011, the Veteran indicated that he had some joint pain in the sacroiliac area for the prior two weeks with no radiation, groin numbness, or bowel or urinary changes. The diagnosis was low back pain. In December 2011, the Veteran underwent a VA spine examination. The Veteran reported that he injured his back while loading a truck during service in January 2005. He stated that he can no longer do dishes or sit through a movie due to low back pain. He noted that he reinjured his back in February 2009, and was out of work for six months as a firefighter. He reported that he had sciatica down the left leg at that time. Physical examination of the Veteran showed range of motion of the lumbosacral spine with forward flexion to 50 degrees with pain, extension to 20 degrees with pain, right and left lateral flexion to 30 degrees with no evidence of pain, and right and left lateral rotation to 30 degrees with no evidence of pain. The Veteran was able to perform repetitive-use testing with three repetitions. He did not have additional limitation in range of motion following repetitive-use testing. He did have functional loss in the thoracolumbar spine, including less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. There was no weakened movement, excess fatigability incoordination, swelling, deformity, atrophy, instability, or disturbance of locomotion. There was no localized tenderness or pain to palpation and there was no guarding or muscle spasm. Muscle strength was normal and equal and there was no muscle atrophy. Deep tendon reflexes were 2+ and equal, and a sensory examination was normal. Straight leg raising tests were negative and there was no radicular pain or any other signs or symptoms due to radiculopathy. The examiner noted that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine disorder, such as bowel or bladder problems. The examiner also indicated that the Veteran did not have intervertebral disc syndrome. The Veteran did not require the use of any assistive devices, and there was no functional impairment of any extremity. There was no evidence of scars and no other pertinent findings. X-rays were performed, which showed multilevel degenerative disc disease at L4-L5 and L5-S1. The examiner noted that the Veteran lost one day of work in the prior six months as a security guard as a result of his low back disorder. The diagnosis was degenerative joint disease of the lumbosacral spine. The Veteran also underwent a VA central nervous system and neuromuscular diseases examination in December 2011 with regard to his low back disability. The Veteran denied any muscle weakness in the upper and lower extremities; any pharynx, larynx, or swallowing condition; any respiratory condition; any sleep disturbances; any bowel functional impairment; any voiding dysfunction causing urine leakage, urinary frequency; obstructed voiding, or requiring the use of an appliance; any history of recurrent symptomatic urinary tract infections; and any erectile dysfunction. A neurologic examination revealed normal speech and gait with full strength in the upper and lower extremities. Deep tendon reflexes were 2+ and symmetric. There was no muscle atrophy, and no weakness in any extremity. There was no evidence of a benign or malignant neoplasm or metastases and there were no scars. The examiner indicated that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms. The examiner concluded that the Veteran did not have a central nervous system condition. In January 2012, electromyography (EMG) and nerve conduction studies were conducted to evaluate the Veteran for lumbar radiculopathy. The results were abnormal with some electrodiagnostic evidence consistent with a diagnosis of chronic S1 (and possibly L5) radiculopathy with no acute features or ongoing axon loss. A May 2012 VA treatment record notes a diagnosis of lumbar degenerative disc disease and chronic low back pain. The treatment record indicates that, in 2009, the Veteran had a flare-up and had radiculopathy in both legs, but it resolved. For the period that is prior to December 5, 2011, the Board finds that an initial rating of 10 percent is warranted. In doing so, the Board notes that VA must consider as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40. Thirty-eight C.F.R. § 4.59 states that 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; see Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds the Veteran's statements of having painful limited motion in his lumbar spine to be sufficient evidence to establish loss of function due to pain. A rating of 10 percent is warranted for his painful movement of his lumbar spine even though no compensable loss of motion is shown. See id. Accordingly, the criteria for the minimum compensable rating for his service-connected lumbar strain were met for the entire duration of his appeal that is prior to December 5, 2011. The 10 percent rating adequately portrays the Veteran's functional loss due to pain, weakened movement, and excess fatigability in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59, and demonstrates that any such functional loss is contemplated. The evidence of record does not support a rating greater than 10 percent for the entire period that is prior to December 5, 2011. The April 2007 VA examination showed the Veteran had flexion of the lumbosacral spine to 90 degrees with a combined range of motion of 240 degrees. A November 2008 private record notes that the Veteran had flexion to almost 90 degrees but with limited extension. The record does not state the actual ranges of motion found, and therefore does not indicate whether the combined range of motion of the thoracolumbar spine less than 170 degrees. However, flexion was greater than 60 degrees. Another November 2008 private record states that the Veteran had flexion greater than 90 degrees, although the combined range of motion of the thoracolumbar spine was not provided. A December 2008 private record also reported flexion to 90 degrees. A December 2008 independent medical examination showed forward flexion to 90 degrees. Although right lateral flexion was limited to 15 degrees, the physician did not provide the range of motion for right and left rotation; therefore, the combined range of motion cannot be calculated based on the information provided in the December 2008 examination. A January 2009 private record states that the Veteran had full range of motion of the thoracolumbar spine with good flexion and extension and no discomfort. Based on the foregoing, the evidence of record demonstrates forward flexion of the thoracolumbar spine was consistently greater than 60 degrees. The medical evidence prior to December 5, 2011 also does not show muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. Accordingly, an evaluation in excess of 10 percent for the prior to December 5, 2011, is not warranted under the General Rating Formula. Additionally, there is no evidence that the Veteran had intervertebral disc syndrome during this period. Accordingly, a higher rating under the Formula for Rating Intervertebral Disc Syndrome is not warranted for this period. The evidence of record does not support greater than a 20 percent rating beginning on December 5, 2011, under the General Rating Formula. The December 2011 VA examination shows that forward flexion of the thoracolumbar spine was limited to 50 degrees, and that the combined range of motion of the thoracolumbar spine was 190 degrees. The medical evidence does not show forward flexion of the thoracolumbar spine to 30 degrees or less or ankylosis of the entire thoracolumbar spine. The evidence of record also does not show that the Veteran's lumbar strain causes a level of functional loss greater than that already contemplated by the assigned evaluation. DeLuca, 8 Vet. App. at 205; 38 C.F.R. §§ 4.40, 4.45. Although the December 2011 VA examination showed functional loss including less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing, the extent to which the range of motion is additionally limited by these factors does not merit a rating greater than 20 percent on and after December 5, 2011. No additional limitation of motion after repetition or during flare-ups was recorded due to these factors such that the criteria for a 40 percent rating were more nearly approximated. The Veteran's reports of back pain have been considered, and are recognized, but the evidence does not reflect functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 beyond that contemplated in the currently assigned ratings. Accordingly, an evaluation greater than 20 percent for a lumbar spine disorder is not warranted on and after December 5, 2011, under the General Rating Formula even with consideration of the DeLuca precepts. Additionally, there is no evidence that the Veteran had intervertebral disc syndrome with during this period. Accordingly, a higher rating under the Formula for Rating Intervertebral Disc Syndrome is not warranted for this period. The rating criteria provide for separate ratings for neurologic and orthopedic manifestations. See Note (1) of the General Rating Formula of Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The record reflects that the Veteran has complained of sciatic-type pain at times throughout the appeal. However, there were no clinical findings of neurologic abnormalities related to his service-connected lumbar spine disorder until January 2012. The April 2007 VA peripheral nerves examiner noted that although the Veteran was claiming peripheral neuropathy, he did not describe true peripheral nerve pain and the physical examination was normal. Further, while some private treatment records indicated the Veteran reported sciatic nerve pain and electric pain down the left leg prior to January 2012, there were no objective neurologic abnormalities shown. The Veteran denied radicular pain at the December 2011 VA examination. The examiner stated that there were no other signs or symptoms due to radiculopathy and no other neurologic abnormalities or findings related to a thoracolumbar spine disorder, such as bowel or bladder problems. However, the January 9, 2012, EMG and nerve conduction studies were abnormal and showed evidence consistent with a diagnosis of chronic S1 (and possibly L5) radiculopathy. This report indicated that there were no motor or sensory changes in the lower extremities based on the current testing, and no active signs of denervation in the EMG study, but there were changes consistent with chronic denervation. In light of the Veteran's intermittent subjective complaints and the minimal objective findings at the 2012 EMG and nerve conduction studies, the Board finds that separate 10 percent ratings for mild incomplete paralysis of the sciatic nerve of the right and left lower extremities is warranted effective January 9, 2012. As no objective neurologic manifestations associated with the service-connected lumbar spine condition were shown prior to the January 9, 2012, EMG and nerve conduction studies; separate ratings are not warranted for the period prior to January 9, 2012. In addition, higher ratings are not warranted for this period as the objective clinical findings relative to his S1 radiculopathy do not reflect more serious neurologic impairment, such as atrophy, decreased or absent sensation, foot drop, or clinically significant muscle or motor weakness. No other neurological abnormalities have been shown by the evidence. III. Other Considerations The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The rating criteria adequately contemplate the manifestations of the Veteran's left shoulder bursitis, lumbar strain, and bilateral lower extremity radiculopathy. The disabilities are productive of pain, limited motion, and mild neurologic involvement. These manifestations are contemplated in the pertinent rating criteria and are adequate to evaluate the Veteran's disabilities. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's disabilities. Ratings in excess of those assigned are provided for certain manifestations of the service-connected disorders, but the medical evidence reflects that those symptoms are not present. Thus, referral for consideration of extraschedular rating is not warranted. Additionally, entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised by the record, which reflects that the Veteran is currently employed as a security guard. Therefore, the Board will not address entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER From October 10, 2008, entitlement to a rating of 20 percent, but no greater, for left shoulder bursitis is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating greater than 20 percent for left shoulder bursitis, from December 5, 2011, is denied. Entitlement to an initial 10 percent rating for lumbar strain, prior to December 5, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating greater than 20 percent for lumbar strain, from December 5, 2011, is denied. From January 9, 2012, a separate rating of 10 percent, but no greater, for right lower extremity radiculopathy is granted, subject to the laws and regulations governing the payment of monetary benefits. From January 9, 2012, a separate rating of 10 percent, but no greater, for left lower extremity radiculopathy is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs