Citation Nr: 1753095 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-09 052A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial compensable disability rating for sinusitis. 2. Entitlement to an initial increased rating for dysthymic disorder, rated 30 percent disabling prior to April 11, 2017, and 70 percent disabling thereafter. 3. Entitlement to an initial increased rating for lumbar spine strain, rated 0 percent disabling prior to June 12, 2017, and 20 percent disabling thereafter. 4. Entitlement to an initial increased rating for left glenohumeral labrum with AC joint arthritis, rated 0 percent disabling prior to June 5, 2013, and 20 percent disabling thereafter. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from July 2007 to November 2010. These matters come to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2011 rating decision, the RO granted service connection for sinusitis, assigning a noncompensable rating, dysthymic disorder, assigning a 30 percent rating, and lumbar spine strain, assigning a noncompensable rating, all effective November 15, 2010. In a June 2011 rating decision, the RO, in pertinent part, granted service connection for left glenohumeral labrum with AC joint arthritis, assigning a noncompensable rating, effective November 15, 2010. In a May 2014 rating decision, the RO assigned a 20 percent rating to left glenohumeral labrum with AC joint arthritis, effective June 5, 2013. In an August 2017 rating decision, a 70 percent rating was assigned to dysthymic disorder, effective April 11, 2017, and a 20 percent rating was assigned to lumbar spine strain, effective June 12, 2017. Although increased ratings have been granted, the issues remain in appellate status, as the maximum schedular ratings have not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a Board hearing in August 2016; the transcript is of record. These matters were remanded in December 2016. In the August 2017 rating decision, service connection was established for limitation of motion of the arm (right shoulder) with rotator cuff tendonitis (20 %); limitation of extension of the leg with patellofemoral pain syndrome, right knee (10%), limitation of extension of the leg with patellofemoral pain syndrome, left knee (10%), limitation of flexion of the leg with patellofemoral pain syndrome, left knee (10%), limitation of flexion of the leg with patellofemoral pain syndrome, right knee (10%), erectile dysfunction (0%), and special monthly compensation (SMC) based on loss of use of creative organ was granted, all effective November 15, 2010. The grant of service connection for these conditions constituted a full award of the benefits sought on appeal as to the claimed issues. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). To date, neither the Veteran nor his representative submitted a jurisdiction-conferring notice of disagreement as to the down-stream elements of effective date or compensation level within the applicable time period. Thus, these issues are not currently in appellate status. Id. FINDINGS OF FACT 1. Sinusitis is manifested by one or two incapacitating episodes per year requiring prolonged antibiotic treatment, without three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, without more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, and the Veteran has not undergone surgery. 2. For the period prior to July 7, 2013, the Veteran's dysthymic disorder has been manifested by symptoms resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but without occupational and social impairment with reduced reliability and productivity. 3. For the period from July 7, 2013, the Veteran's dysthymic disorder has been manifested by symptoms resulting in occupational and social impairment with deficiencies in most areas due to such symptoms as difficulty in adapting to stressful circumstances, but without total occupational and social impairment. 4. For the period prior to June 12, 2017, lumbar spine strain is not manifested by forward flexion less than 85 degrees, but is manifested by limitation of motion with pain and functional impairment, without incapacitating episodes or favorable ankylosis of the spine. 5. For the period from June 12, 2017, lumbar spine strain is manifested by flexion of 60 degrees, without incapacitating episodes or unfavorable ankylosis of the spine. 6. From August 4, 2016, the Veteran had radicular pain of the right lower extremity, including mild intermittent pain and mild paresthesias/dysesthesias 7. For the period prior to June 5, 2013, the Veteran's left shoulder disability is manifested by degenerative arthritis with limited external and internal rotation. 8. For the period from June 5, 2013, the Veteran's left shoulder disability is not manifested by limitation of motion at shoulder level, nor manifested by fibrous union of the humerus or ankylosis of the scapulohumeral articulation. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 10 percent, but no higher, for sinusitis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6510 (2017). 2. For the period prior to July 7, 2013, the criteria for a rating in excess of 30 percent for dysthymic disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9433 (2017). 3. For the period from July 7, 2013, the criteria for a 70 percent rating for dysthymic disorder have been met, but the criteria for a rating in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9433 (2017). 4. For the period prior to June 12, 2017, the schedular criteria for a rating of 10 percent for lumbar spine strain have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5242 (2017). 5. For the period from June 12, 2017, the schedular criteria for a rating in excess of 20 percent for lumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5242. 6. For the period from August 4, 2016, the criteria for a separate 10 percent rating for radiculopathy, right lower extremity, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 7. For the period prior to June 5, 2013, the criteria for entitlement to a rating of 10 percent, but no higher, for left glenohumeral labrum with AC joint arthritis have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.14, 4.71(a), Diagnostic Code 5201 (2017). 8. For the period from June 5, 2013, the criteria for entitlement to a rating in excess of 20 percent for left glenohumeral labrum with AC joint arthritis have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.14, 4.71(a), Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2010, the Veteran was provided notice with regard to his service connection claims, and thereafter service connection was established. When a claim has been granted and there is disagreement as to "downstream" questions, such as increased ratings, the claim has been substantiated and there is no need to provide additional notice and the Court will not presume that a notice error is prejudicial. See Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). That burden has not been met in this case as the Veteran has not alleged such prejudice. Regarding the duty to assist, the evidence of record contains VA treatment records and lay statements and testimony from the Veteran. There is otherwise no indication of relevant, outstanding records which would support the increased rating claims. The Veteran was afforded VA examinations with regard to his claims which will be discussed in detail below. The Veteran failed to appear for a June 2011 VA examination pertaining to the left shoulder. Such was discussed in the May 2014 rating decision. He also failed to report for examinations in May 2014 pertaining to his sinusitis, dysthymic disorder, left shoulder, and lumbar spine strain. Such was discussed in the June 2014 Supplemental Statements of the Case. The consequence in this case of the Veteran's failure without good cause to report for the VA lumbar spine examination is that his disability must be rated on the basis of the other relevant evidence of record which includes November 2010 and June 2017 VA examinations. 38 C.F.R. § 3.655(b). Initial increased ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The appeal arises from the original assignment of disability evaluations following an award of service connection, thus the severity of the disabilities at issue are to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. With regard to the lumbar spine and left shoulder, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Also, functional loss due to pain must be supported by pathology and shown through objective observation. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (citing 38 C.F.R. § 4.40); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (relying on DeLuca for proposition that an adequate joint examination report must comply with § 4.40 and include an "opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time"). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals for Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The Board has reviewed all the evidence in the Virtual folders, which includes: his contentions, service treatment records, post-service treatment reports, and VA examination reports. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Sinusitis The Veteran's sinusitis is rated as noncompensable pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6510 (sinusitis, pansinusitis, chronic) which provides for a zero percent rating when detected by x-ray only; a 10 percent rating on evidence of one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; a 30 percent rating is assigned on evidence of three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; and, a maximum rating of 50 percent is warranted following radical surgery with chronic osteomyelitis, or when there is near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6510. In November 2010, the Veteran underwent a VA examination to assess the severity of his sinusitis. The Veteran reported sinus infections twice a year requiring antibiotics. 11/26/2010 Legacy Content Manager Documents (LCMD), VA Examination at 49. Unfortunately, the examination report does not adequately address the length of his antibiotic treatment, nor whether his sinusitis is manifested by headaches, pain, purulent discharge or crusting. The Veteran sought treatment for sinusitis in April 2011, August 2012, October 2012, and January 2013. 03/15/2013, LCMD, CAPRI at 4-5, 30, 36, 129. At the Board hearing, the Veteran testified that he will get a serious sinus infection and sometimes it will take two or three rounds of antibiotics to get rid of it. 08/04/2016 Hearing Testimony at 9. In April 2017, the Veteran underwent a VA examination. The VA examiner summarized the Veteran's prior treatment for sinusitis, noting treatment for left sided facial pain, stuffy nose, and headache in April 2011; acute sinusitis in August 2012; and, pneumonia treated with antibiotics in November 2015. The Veteran reported to the examiner repeated sinus infections (approximately two times per year) requiring antibiotics. Episodes are associated with pain in the face, jaw, and head as well as stuffiness and occasionally cough. He responds well to antibiotics. The examiner noted chronic sinusitis detected only by imaging studies, headaches, and pain of affected sinus, to include discharge, mucosal redness and tenderness. The examiner checked the 'No' boxes with regard to whether the Veteran has had incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months; and, whether the Veteran had non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. It was noted that the Veteran claims nasal mucosal discharge and reproducible pain/tenderness over maxillary bone indicate sinusitis. Notwithstanding the fact that the April 2017 VA examiner indicated that the Veteran does not suffer from incapacitating episodes requiring prolonged antibiotic treatment, the Board finds that the treatment records and Veteran's testimony supports a 10 percent rating due to his documented 1 to 2 documented bouts of sinusitis which require antibiotic treatment, to include, at times, several rounds of antibiotic treatment. A 30 percent rating is not warranted as the VA examination reports and treatment records do not reflect three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, nor more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. It is also noted that the Veteran has not undergone surgery for his sinusitis. See, e.g., April 2017 VA examination report, at 6. Thus, there is no basis for the assignment of a 30 percent rating for sinusitis. In sum, while the evidence supports a disability rating of 10 percent for sinusitis, the preponderance of the evidence is against a disability rating in excess of 10 percent. The benefit of the doubt has been resolved in the Veteran's favor, as appropriate. Dysthymic disorder With regard to the rating criteria for dysthymic disorder (Diagnostic Codes 9433), the Board first observes that the symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Indeed, "VA must engage in a holistic analysis" that assess the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Pursuant to 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, an evaluation of 30 percent is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). An evaluation of 50 percent is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to symptoms such as the following: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.1994) (DSM-IV). VA implemented DSM-V, effective August 4, 2014. The Secretary, VA, has determined, however, that DSM-V does not apply to claims certified to the Board prior to August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The Veteran's appeal was initially certified to the Board on August 6, 2014, thus consideration will be given to the both the DSM-IV and DSM-V criteria. The scores assigned under the Global Assessment of Functioning (GAF) scale are an important consideration. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996). They reflect the psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness. GAF scores between 61 and 70 reflect either some mild symptoms (e.g., depressed mood and mild insomnia); or some difficulty in social, occupational or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. By comparison, GAF scores between 51 and 60 reflect either moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks); or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with co-workers), and GAF scores between 41 and 50 reflect either serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting); or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores between 31 and 40 reflect either some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). On examination in October 2010, there was no impairment of thought process or communication; no delusions, hallucinations; no suicidal/homicidal thoughts, ideation, plans or intent; with orientation to person, place, and time and appropriate behavior. His speech was normal. He has depression, depressed mood and anxiety, with sleep impairment and memory impairment, with no panic attacks or impaired impulse control. The Veteran's longest period of employment was 6 years from 2001 to 2007 and his longest period of unemployment was 2 weeks. He had regular contact with his father and 2 of his sibling, but had very few friends with only occasional contact. He noted that he had "trust issues" and he was "somewhat" satisfied with his relationships. The examiner opined that his symptoms were mild to moderate. The examiner diagnosed dysthymic disorder and assigned a GAF score of 63. In August 2012, while the Veteran reported a depressed mood, he denied any thoughts of suicide. 03/15/2013 LCMD, CAPRI at 68. A July 2013 treatment record reflects that the Veteran poses no to low risk for self-harm and poses no risk to others. He has supportive family and/or friends. He reported no energy, headaches, disrupted sleep, and irritability. The Veteran reported feelings of desperation but no suicidal ideation, attempt or history. He was emotionally flat and denied lability but endorsed irritability. The examiner stated that he may have some attachment issues and challenges secondary to depression, chronic pain, and family of origin. On mental status examination, he was detached at first, not highly verbal, depressed almost disengaged, with limited judgment and insight with rationale thought process. There were no cognitive deficits/memory impairment, and no suicidal/homicidal ideation/intent/plan. The examiner assigned a GAF score of 60. 05/23/2014 LCMD, CAPRI at 9-14. An October 2014 treatment record reflects that the Veteran is dealing with depression and alcoholism. He reported work as a solar installer. He reported chronic pain and poor sleep. He is marginally committed to his own wellbeing but motivated to improve for the sake of his child. On mental status examination, he was tired, did not smile and was almost anhedonic. His demeanor was serious, lethargic but motivated to improve for his daughter. His speech was slow but normal. His mood/affect was depressed. His thought process was rationale, somewhat concrete. He had no psychotic symptoms/thought content. His insight/judgment was limited. 12/27/2016 Medical Treatment Record-Government Facility at 55. A December 2014 treatment record reflects that the Veteran continues to display a poverty of emotion and passion. He is isolated and in a lull in terms of work. He does pool and solar work, so this is a boring season. He is serious in appearance but not as impaired as last visit. He is thinking about business options. He watches television, is sober and depressed but challenged with doing laundry in a given day. He wants to meet more people and stay sober and safe options were discussed such as gym, learning, and yoga. He was pleasant but remained uninspired. On mental status examination, his appearance and behavior was tired, he did not smile, and he was almost anhedonic. His demeanor was serious, lethargic but motivated to improve for his daughter. His speech was slow but normal. His mood was depressed. He denied any suicidal/homicidal idea/intent/plan. His thought process was rationale, somewhat concrete. He had no psychotic symptoms. His insight/judgment was limited. The examiner diagnosed depressive disorder, chronic pain, and alcoholism in partial remission. Id. at 53. At the Board hearing, the Veteran testified that he has minor memory problems and he denied panic attacks. 08/04/2016 Hearing Testimony at 16. The April 2017 VA examination reflects the examiner's finding of occupational and social impairment with reduced reliability and productivity. The following symptoms were reflected: depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran presented alert and generally cooperative at interview. Hygiene was adequate. Sleep was poor. Appetite was unremarkable. Mood was depressed with a full range of affect displayed. Eye contact was unremarkable. Speech was clear and fluent with normal pace, cadence and prosody. Insight and judgment were generally intact. There was no evidence of a thought disorder. Thought process was linear and future-goal oriented. No psychotic symptoms were endorsed. The Veteran denied any current suicidal or homicidal ideation, intent or plan. The Veteran's occupational and social functional impairment is caused by or a result of the effects of the following mental health symptoms, which are attributable to his mental health condition - persistent depressive disorder: Depressive moods, irritability, chronic sleep impairment, disturbances in mood and mood swings, low energy and being easily fatigued and difficulties with concentration. The Veteran continued to experience persistent reduced reliability and productivity in his work due to depressive moods, irritability and fatigue. The Veteran continued to experience persistent difficulties with maintaining concentration and stamina throughout the eight hour workday due to being easily fatigued, low energy and mood swings. The Veteran continued to have difficulties with remaining emotionally stable all throughout his eight hour work day, his 40 hour workweek and in his social environment due to depressive moods, being easily fatigued and irritability. For the period prior to July 7, 2013, the evidence of record does not support a finding of reduced reliability and productivity and difficulty in establishing and maintain effective work and social relationships so as to warrant the next higher rating of 50 percent. 38 C.F.R. § 4.130, Diagnostic Code 9411. The October 2010 VA examination reflects a GAF score of 63 indicative of mild symptoms with normal speech, no panic attacks, no impaired impulse control, with no impairment of thought process or communication, no delusions/hallucinations, and no suicidal/homicidal thoughts, with full orientation. This is consistent with the VA treatment records of the same time period. So, while the Veteran's service-connected dysthymia was manifested by depression and anxiety with sleep and memory impairment, the objective evidence does not reflect flattened affect, abnormal speech, panic attacks, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, nor difficulty in establishing or maintaining effective work and social relationships. However, the Board has determined that a 70 percent is warranted from July 7, 2013 corresponding to the date the Veteran sought VA treatment for his dysthymic disorder and the date the Veteran's disability manifested in some of the symptomatology contemplating a 70 percent rating. These included deficiencies in many areas, such as work, mood, and judgment. For example, at the July 2013 visit, the Veteran reported no energy, problems with sleep, and irritability. Objective examination showed that his affect was flat, he was irritable, detached, depressed almost disengaged, with limitations in judgment and insight. Subsequent VA treatment reflects similar symptomatology including anhedonia, lethargy, and lack of emotion. The findings of the VA providers and based on the Veteran's subjective complaints, his dysthymia was manifested by near continuous depression, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. While the objective and subjective evidence does not reflect suicidal ideation, obsessional rituals, nor speech intermittently illogical, obscure or irrelevant, his speech was flattened. It is not necessary that all of the criteria for a 70 percent rating be shown. The Board finds that based on the Veteran's overall disability picture and resolving doubt for the Veteran, the criteria for a 70 percent evaluation have been met since July 7, 2013. While a 70 percent evaluation is found to be warranted from July 7, 2013, an evaluation in excess of this amount is not supported by the evidence of record. Indeed, the objective findings do not reflect a persistent danger of hurting self or others, nor any of the other symptomatology contemplated by a 100 percent rating. The evidence of record does not reflect that he is suicidal. Thus, the evidence does not show a persistent danger of harm to herself. Moreover, there have been no objective findings of gross impairment in thought processes or communications; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The 2017 VA examination report does not reflect that the Veteran had an inability to establish and maintain effective relationships and it does reflect that he is currently employed. At the Board hearing, the Veteran testified that he had to start his own business cleaning swimming pools and that he can work half days, if needed. Additionally, the subjective and objective evidence reflects mild memory loss. There is no indication that he is unable to perform activities of daily living, including maintenance of personal hygiene. Moreover, the April 2017 examination indicates that he maintains a relationship with his children and siblings. Based on the foregoing medical and lay evidence, the Board finds that total social and occupational impairment have not been more nearly approximated. Lumbar spine disability The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis of the lumbar spine or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome. Lumbosacral strain is Diagnostic Code 5237. Intervertebral disc syndrome is Diagnostic Code 5243. The general rating formula provides for the following disability ratings for diseases or injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For purposes of this case, the Board notes that under the general rating formula for diseases and injuries of the spine, ratings are assigned, in pertinent part, as follows: 10 percent - Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; 20 percent - 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; 40 percent - Forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 50 percent - Unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent- Unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for disability with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In this case, service connection has been established for lumbar spine strain, rated 0 percent disabling, effective November 15, 2010, and 20 percent disabling, effective June 12, 2017. In order to obtain a compensable rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran's disability would have to manifest in forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; and, in order to obtain a disability rating in excess of 20 percent the Veteran's disability would have to manifest in forward flexion 30 degrees or less or favorable ankylosis of the thoracolumbar spine. There is no indication that the Veteran's spine is ankylosed. Ankylosis is defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. STEDMAN'S MEDICAL DICTIONARY 90 (27th Ed. 2000). The Veteran is able to flex his spine. The treatment records on file do not otherwise reflect that the Veteran's spine is ankylosed or comparable therewith. The November 2010 VA examination report reflects flexion 0 to 100 degrees and extension to 30 degrees. There was no objective evidence of pain following repetitive motion. The Veteran complained of spasms and severe, pinching pain but there were no objective findings of spasms. The Veteran reported severe flare-ups every 1 to 2 months lasting 3 to 7 days. The examiner commented that the extent of additional limitation of motion or other functional impairment during flare-ups was somewhat limiting. An x-ray report of the low back was normal. 11/26/2010 LCMD, VA Examination at 21-23, 63. While such objective findings do not support a compensable disability rating under the General Rating Formula for Diseases and Injuries of the Spine as forward flexion 85 degrees or less is not shown, due to the Veteran's report of suffering from severe flare-ups every 1 to 2 months and the examiner's notation that motion and functional impairment during flare-ups was somewhat limiting, the Board finds that a 10 percent rating is warranted per DeLuca and Mitchell in contemplation of functional impairment associated with his lumbar spine disability, to include as due to pain and spasm. As detailed, the Veteran did not appear for a May 2014 VA examination to assess his lumbar spine disability, and there is otherwise no objective medical evidence nor subjective complaints of record which would support a rating in excess of 10 percent prior to June 12, 2017. While acknowledging that the Veteran testified in August 2016 that he experiences spasms in his back two or three times per week, the evidence of record does not support a finding that such spasms result in an abnormal gait or abnormal spinal contour. 08/04/2016 Hearing Testimony at 13-14. With regard to the period from June 12, 2017, a disability rating in excess of 20 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. The June 2017 VA examination reflects flexion 0 to 60 degrees with pain limiting full range of motion; there was no change on repetitive motion testing. There is additionally no indication in the record of incapacitating episodes for any period for the period prior to June 12, 2017, or for the period from June 12, 2017. The June 2017 VA examiner checked the 'No' box with regard to whether the Veteran has had any episodes of acute signs and symptoms that required bedrest prescribed by a physician and treatment by a physician in the past 12 months. While the Board acknowledges the Veteran's reports of flare-ups associated with his lumbar spine disability, the evidence does not show that he has been prescribed bedrest by a physician to treat this disability amounting to at least 2 weeks for the period prior to June 12, 2017, nor 4 weeks for the period from June 12, 2017. Thus, the Board finds that the preponderance of the evidence is against a finding that the Veteran's disability warrants respective higher ratings than the 10 percent and 20 percent ratings. As already discussed hereinabove, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca and Mitchell. A 10 percent rating has been assigned for the period prior to June 12, 2017 in contemplation of his functional limitations, to include as due to pain. With regard to the period from June 12, 2017, the VA examiner stated that pain, fatigue, and lack of endurance result in functional impairment without any specific findings of additional limitation of motion. His functional impairments limit his ability to carry/lift heavy items, sit for more than 20 minutes, walk, drive for more than 20 minutes, stand, jog/run, household chores, yard work, and bending, and affects sleeping and laying during flare-ups. The examiner stated that the Veteran has functional impairment in the form of less movement than normal, and interference with sitting and standing. The Board notes that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. Mitchell, 25 Vet. App. at 38. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; 38 C.F.R. § 4.40. Here, the findings reflected in the VA examination report do not support a rating in excess of 20 percent for the period from June 12, 2017. Despite the Veteran's painful motion, this does not result in a separate and/or higher rating unless it actually results in additional functional loss. DeLuca, 8 Vet. App. at 204-07. In consideration of the DeLuca factors, while it is clear that the Veteran experiences pain and limitations due to his lumbar spine disability, the 20 percent disability rating takes into consideration the Veteran's functional loss associated with his lumbar spine. The Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for an increased rating. The Board finds that a separate rating is warranted for radiculopathy affecting the right lower extremity manifested by mild incomplete paralysis pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 pursuant to Note (1) to the General Rating Formula for Diseases and Injuries of the Spine. Specifically, the June 2017 evaluation reflects that the Veteran had radiculopathy, to include objective findings of radicular pain of the right lower extremity, including mild intermittent pain and mild paresthesias/dysesthesias. The examiner characterized the Veteran's radiculopathy as mild. At the Board hearing the Veteran testified that he experiences sciatica down the right leg due to his lumbar spine disability. 08/04/2016 Hearing Testimony at 13-14. Based on these subjective complaints, the Board finds that a 10 percent disability rating is warranted from August 4, 2016. A higher rating is not warranted as his radiculopathy is sensory in nature and there is no indication that his radiculopathy is moderate in nature. The only manifestation the Veteran has reported is radiating pain. Thus, while the Veteran experiences impaired function associated with his radiculopathy, such does not result in complete paralysis of the right lower extremity and its frequency is not constant and is not moderate in nature per the Veteran and the objective findings noted above on VA examination. A separate rating is not warranted for radiculopathy for the period prior to August 4, 2016. For example, in June 2013, the Veteran denied any sciatica. 05/23/2014 LCMD, CAPRI at 26. Otherwise there is no basis for assigning separate ratings for neurological manifestations due to the Veteran's service-connected back disability, to include bowel or bladder problems. Left shoulder disability The Veteran's left shoulder disability is rated noncompensably disabling prior to June 5, 2013, and 20 percent disabling thereafter, pursuant to Diagnostic Code 5201, limitation of motion of the arm. The evidence of record reflects that the Veteran is right-handed. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Codes 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203). Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Diagnostic Code 5200 rates ankylosis of the scapulohumeral joint. Where arm limitation of motion is limited to 25 degrees from the side, a 40 percent evaluation is assigned for the major side, under Diagnostic Code 5201. Limitation of motion midway between the side and shoulder level contemplates a 30 percent evaluation for the major side, and limitation of motion at shoulder level contemplates a 20 percent evaluation for the major side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Additionally, under Diagnostic Code 5202, for impairment of the humerus, a 20 percent rating is granted when there is malunion, with moderate deformity, for the major arm; a 30 percent rating is warranted when there is marked deformity of the major arm. Also under Diagnostic Code 5202, for recurrent dislocations of the major arm at the scapulohumeral joint, a 20 percent rating is granted with infrequent episodes, and guarding of movement only at shoulder level; a 30 percent rating is granted for the major arm when there are frequent episodes and guarding of all arm movements. For fibrous union of the major arm a 50 percent rating is assigned for the major arm. A 60 percent rating is warranted for nonunion (false flail joint) of the major arm. A 80 percent rating is warranted for loss of head of (flail shoulder) for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Further, under Diagnostic Code 5203, for impairment of the clavicle or scapula in the major arm, a 10 percent rating is granted for malunion or nonunion without loose movement and a 20 percent rating is granted for nonunion with loose movement or for dislocation. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A March 2010 x-ray of the left shoulder reflects degenerative change seen and decreased subacromial space was present. The impression was grade II AC joint injury, and decreased subacromial space present suggestive of a chronic rotator cuff tear. 11/26/2010 LCMD, VA Examination at 71. A May 2010 MRI of the left shoulder showed mild degenerative changes of the acromioclavicular joint with no fracture or dislocation; with avulsion of the anterior labrum without underlying osseous abnormality. Id. at 70. An August 2010 x-ray examination reflects no fracture or evidence for dislocation with limited range of motion from internal to external rotation is noted. Id. at 69. A November 2010 x-ray examination of the left shoulder was normal. Id. at 27. A November 2010 VA examination does not contain range of motion findings and the Veteran failed to appear for a June 2011 VA examination pertaining to the left shoulder. 06/10/2011 LCMD, VA Examination. The Board has determined that a 10 percent rating is warranted for the Veteran's left shoulder disability for the period prior to June 5, 2013, in light of the objective findings of mild degenerative changes of the acromioclavicular joint and limited range of motion from internal to external rotation reflected in the August 2010 x-ray examination. Per Diagnostic Code 5003, arthritis established by x-ray findings will be rated based on the basis of limitation of motion, and when the limitation of motion of the specific joint is noncompensable, a rating of 10 percent is for application for each such major joint affected by limitation of motion. As there are no range of motion of findings due to the Veteran's failure to appear for the examination, the Board will assign a 10 percent rating in contemplation of the degenerative arthritis and limited range of motion from internal to external rotation reflected in the x-ray examination reports. There are no other records which could support a higher rating for the period prior to June 5, 2013. For the period from June 5, 2013, a disability rating in excess of 20 percent is not warranted. A 30 percent rating is not warranted as limitation of motion to 25 degrees from side is not shown. The June 2017 VA examination reflects normal flexion, normal abduction, external rotation to 80 degrees, and internal rotation to 60 degrees. The examiner noted limited range of motion with external and internal rotation. While acknowledging that after repetitive motion, flexion was to 170 degrees and abduction was to 160 degrees, such does still not amount to limitation to 25 degrees from side. It was noted that the Veteran had functional loss due to pain, fatigue, and lack of endurance. This functional loss resulted in difficulty with many things, to include carrying/lifting, grooming/dressing, exercising, and performing household chores. With regard to Diagnostic Code 5202, fibrous union of the humerus is not shown. Ankylosis has not been shown, thus a rating is not warranted per Diagnostic Code 5200. Impairment of the clavicle or scapula is not shown, thus a rating per Diagnostic Code 5203 is not warranted. Considering the DeLuca and Mitchell factors and the evidence of record, the Board finds that the current 10 percent and 20 percent ratings adequately compensate the Veteran for any functional loss due to pain affecting the left shoulder. DeLuca, 8 Vet. App. at 204-07. Such ratings compensate him for pain experienced, to include the pain he experiences when he lifts overhead. The Veteran denied any flare-ups of the left shoulder at the June 2017 VA examination. 06/16/2017 C&P Exam at 4. An increase due to functional impairment would not be appropriate under the criteria of 38 C.F.R. §§ 4.40 and 4.45. (CONTINUED ON NEXT PAGE) ORDER An initial disability rating of 10 percent for sinusitis is granted. For the period prior to July 7, 2013, an initial a disability rating in excess of 30 percent for dysthymic disorder is denied. For the period from July 7, 2013, a disability rating of 70 percent for dysthymic disorder is granted, but a rating in excess of 70 percent is denied. For the period prior to June 12, 2017, an initial 10 percent, but no higher, disability rating for lumbar spine strain is granted. For the period from June 12, 2017, a disability rating in excess of 20 percent for lumbar spine strain is denied. For the period from August 4, 2016, a separate disability rating of 10 percent, but no higher, for radiculopathy, right lower extremity, associated with lumbar spine strain, is granted. For the period prior to June 5, 2013, an initial disability rating of 10 percent, but no higher, for left glenohumeral labrum with AC joint arthritis is granted. For the period from June 5, 2013, a disability rating in excess of 20 percent for left glenohumeral labrum with AC joint arthritis is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs