Citation Nr: 1804784 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-07 200A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Evaluation of the service connected right lower extremity radiculopathy, currently rated as 10 percent disabling. 2. Evaluation of the service-connected left lower extremity radiculopathy, currently rated as 10 percent disabling. 3. Evaluation of the service-connected cervical spine spondylosis, currently rated as noncompensable. 4. Evaluation of the service-connected gastroesophageal reflux disease (GERD), currently rated as noncompensable. 5. Evaluation of the service-connected right shoulder strain with osteoarthritis of the acromioclavicular joint, currently rated as noncompensable. 6. Evaluation of status post left knee meniscectomy and medial femoral arthroplasty with degenerative arthritis and chondromalacia, currently rated as 10 percent disabling. 7. Evaluation of the service-connected right knee degenerative arthritis and chondromalacia, currently rated as noncompensable. 8. Entitlement to service connection for right hand finger numbness 9. Entitlement to service connection for left hand finger numbness 10. Entitlement to service connection for right hip condition. 11. Entitlement to service connection for left hip condition. REPRESENTATION Appellant represented by: Jan D. Dils, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to March 2011. This matter comes before the Board of Veterans' Appeal (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In the April 2014 VA Form 9, the Veteran indicated that he was no longer appealing the propriety of the initial evaluations for status post left thumb flexor tendon repair, thoracolumbar spine degenerative disease, bilateral pes planus, benign prostatic hypertrophy, hypertension, erectile dysfunction, primary insomnia, and service connection for left shoulder condition, and blood in stool, issues included in the December 2013 statement of the case (SOC). Consequently, these matters are no longer before the Board. The Veteran testified before the Board in May 2017. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran in this case served on active duty from September 1982 to March 2011. 2. During the May 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the issues of the propriety of the initial evaluations for service-connected right shoulder strain, status post left knee meniscectomy, and right knee degenerative arthritis, and service connection for right hand finger numbness, left hand finger numbness, right hip condition, and left hip condition is requested. 3. Throughout the appeal period, the Veteran's right lower extremity has been productive of moderate incomplete paralysis. 4. Throughout the appeal period, the Veteran's left lower extremity has been productive of moderate incomplete paralysis. 5. Throughout the appeal period, the Veteran's cervical spine spondylosis was productive of full range of motion without objective evidence of pain, muscle spasm, guarding, localized tenderness, or vertebral body fracture with loss of 50 percent or more of the height. 6. Throughout the appeal period, the Veteran's GERD has been productive of mild nausea and requires medication for control; there has been no evidence of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of the propriety of the initial evaluations for service-connected right shoulder strain, status post left knee meniscectomy, and right knee degenerative arthritis, and service connection for right hand finger numbness, left hand finger numbness, right hip condition, and left hip condition by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for an initial 20 percent evaluation, and no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8720 (2017). 3. The criteria for an initial 20 percent evaluation, and no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8720 (2017). 4. The criteria for an initial compensable evaluation for service-connected cervical spine spondylosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5243 (2017). 5. The criteria for an initial compensable rating for GERD have not been met for any period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Dismissals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the May 2017 Board hearing, the Veteran, through his attorney, withdrew the issues of the propriety of the initial evaluations for service-connected right shoulder strain, status post left knee meniscectomy, and right knee degenerative arthritis, as well as service connection for right hand finger numbness, left hand finger numbness, right hip condition, and left hip condition. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. Duties to Notify and Assist With respect to the issues on appeal, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). During the May 2017 Board hearing, the Veteran waived initial RO review of medical records added to the electronic record after the December 2013 and March 2016 statements of the case (SOC) were issued. As such, a remand for issuance of a supplemental state of the case is not necessary. 38 C.F.R. § 20.1304(c). The Board is cognizant of the Court's recent decision in Correia v. McDonald, 28 Vet. App. 158 (2016), which found that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. During the May 2017 Board hearing, the Veteran testified that his disabilities had worsened in severity. The Veteran was informed that the undersigned was contemplating a remand for current examinations, which might produce different findings or support entitlement to higher ratings. However, the Veteran declined remand for new VA examinations, as well as remand to obtain updated medical records. Specifically, the Veteran indicated that he was not concerned about any evidence dated after November 2015 when his combined rating for all his service-connected disabilities became 100 percent. Consequently, the Board will proceed with adjudication of the issues based on the evidence of record. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court has held that VA adjudicators must analyze the evidence of pain, weakened movement, premature or excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (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 during flare-ups. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath, 1 Vet. App. at 592. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Indeed, when § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id., at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id., at 36. Moreover, where the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85. Right and Left Lower Extremity Radiculopathy The Veteran contends that initial ratings in excess of 10 percent are warranted for his radiculopathy of the right and left lower extremities as a result of moderate symptomatology, to include shooting type pains, numbness, and tingling. BVA Transcript pages 4-13. Peripheral nerve disorders affecting the sciatic nerve are evaluated under the criteria when there is evidence of paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8720. Incomplete paralysis of the sciatic nerve is rated as a 10 percent for "mild," 20 percent for "moderate," 40 percent for "moderately severe," and 60 percent for severe, with marked muscular atrophy. Id. Complete paralysis, the foot dangles and drops, is rated as 80 percent disabling. Id. Based on a longitudinal review of the record, the Board finds that the Veteran's right and left lower extremity symptomatology and disability picture is more appropriately compensated by no more than an initial 20 percent evaluation. The 2014 VA examiner found evidence of moderate pain, paresthesia and/or dysesthesias, and numbness in the bilateral lower extremities. The examiner characterized the severity of radiculopathy as moderate in each lower extremity. Private medical records contain treatment for complaints of tingling, numbness, and paresthesia of the bilateral legs. He was repeatedly diagnosed with radicular symptoms of the lower limbs and treated with epidural steroid injections on multiple occasions. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected right and left lower extremity radiculopathy disabilities, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected disabilities varied to such an extent that ratings greater or less than those awarded in the instant decision would be warranted. See Fenderson, 12 Vet. App. at 125-126 (1999); Hart, 21 Vet. App. at 507. The Board has also considered other potentially applicable diagnostic codes that provide for the assignment of higher evaluations for the Veteran's left and right lower extremity radiculopathy. After review, however, the Board observes that no other code provisions can be applied for a higher rating based on the evidence of record. As noted above, the Veteran is entitled to a separate 20 percent rating, and no higher, for right and left lower extremity radiculopathy. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. Cervical Spine The Veteran seeks entitlement to an initial compensable evaluation for his cervical spine disability symptomatology, to include daily neck pain. BVA Transcript at 17. If there is evidence of Intervertebral Disc Syndrome (IVDS), VA is directed to evaluate a cervical spine disorder under either the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 (2016). See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the Formula for Rating IVDS, a 10 percent evaluation is assigned with the incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months. Id. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. Id. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. Id. A maximum 60 percent evaluation is warranted and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. For the purposes of evaluating disabilities under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note 1. At the outset, the Board finds that while there has been radiographic evidence of IVDS, i.e. disc space narrowing of C5-6, on magnetic resonance imaging taken in 2012, the Veteran has not meet the requisite number of incapacitating episodes as defined by statute at any time throughout the appeal period and the General Rating Formula, particularly Diagnostic Code 5242, affords the Veteran the higher evaluations when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 5242 for degenerative arthritis of the cervical 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, a 10 percent rating is for disability manifested by forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; the combined range of motion of cervical spine greater than 170 degrees but to 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A 20 percent rating is assigned when forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of cervical spine not greater than 170 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. Id. A 30 percent rating is assigned when forward flexion of the cervical spine is 15 degrees or less or favorable ankylosis of the entire cervical spine. Id. A 40 percent is assigned for unfavorable ankylosis of the entire cervical spine. Id. A higher 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. And an even higher 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. A zero percent evaluation is assigned when the schedule does not provide a zero percent evaluation for a diagnostic code and the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 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. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees and the combined range of motion of the cervical spine is 340 degrees. The normal ranges of motions 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. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71a, Plate V (2017). Furthermore, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (4). Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Note (5) in Diagnostic Codes 5235-5242 additionally explains that unfavorable ankylosis is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension." Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. For the reasons discussed below, the Board finds that the Veteran's symptomatology and disability picture for his service-connected cervical spine disability is appropriately compensated by the currently assigned percentage and that an evaluation in excess of that currently assigned is not warranted at any time during the course of the appeal. See Fenderson, 12 Vet. App. at 125-126; 21 Vet. App. at 507. In this regard, on VA examination in December 2010, there was no evidence of radiation pain on movement, weakness, muscle spasm, tenderness, guarding, atrophy of limbs, or changes in muscle tone. No fixed position was identified. Range of motion was within normal limits. Flexion, extension, right lateral flexion, and left lateral flexion were all zero to 45 degrees. Right and left rotations were each zero to 80 degrees. There was no pain on any range of motion, weakness, lack of endurance, fatigue, or incoordination. There was no additional degree of limitation after repetitive use. A March 2014 MRI showed possible spasm, but was not objectively confirmed. Treatment records are negative for treatment of the cervical spine and simply note a past medical history of neck arthritis. The Board has considered the Veteran's complaints of daily neck pain; however, these complaints are clearly accounted for in the noncompensable rating given that range of motion of the cervical spine has been shown to be full and no objective painful motion has been shown. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7; Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011) (holding that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable under the applicable Diagnostic Code); Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (finding that when read together with Diagnostic Code 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable Diagnostic Code pertaining to range of motion simply because pain is present throughout the range of motion). Degenerative arthritis established by x-ray finding will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint. When limitation of motion is noncompensable under the appropriate diagnostic code, a 10 percent is for application when the joint is affected by limitation of motion, which is not the case in the instant matter. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Notably, limitation of motion of the cervical spine has not been objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In sum, an initial compensable rating is not warranted. There was no evidence of forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, the combined range of motion of cervical spine greater than 170 degrees but to greater than 335 degrees, or the functional equivalent thereof. There was also no objective evidence of 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. GERD The Veteran contends that his service-connected GERD warrants an initial compensable rating because of symptoms, to include chest pain and the required use of daily medication. BVA Transcript at 19. The Veteran's GERD has been rated by analogy as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7346, which provides a 10 percent rating for hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114. A 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health. Id. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's service-connected GERD has for the entire period of the initial rating more closely approximated the criteria for the currently assigned noncompensable rating. 38 C.F.R. §§ 4.3, 4.7. In this regard, on VA examination in December 2010, the Veteran was not undergoing any treatment for GERD and took no medications. Diagnostic studies showed no evidence of GERD, peptic ulcer disease, or hiatal hernia. The examiner found the current physical examination did not reveal any sign of active, acute or chronic disease. Private medical records dated in May 2011 show the Veteran was taking medication for esophagitis reflux, resulting in stable conditions A December 2014 upper gastrointestinal endoscopy revealed a normal esophagus and erythematous mucous in the gastric body and antrum. Upon VA examination in December 2015, the Veteran reported that his stomach burned. He was taking Omeprazole. He informed the examiner that he was unsure, if to date, the condition had been formally diagnosed. The examiner found evidence of mild nausea occurring four or more times per year and lasting one to nine days. He did not have an esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. In sum, based on the evidence delineated above, the Veteran's GERD most nearly approximates the criteria for a noncompensable rating. "Staged" ratings, are not warranted for any period of initial rating because the evidence does not show symptomatology consistent with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation. 38 C.F.R. § 4.114. There has been no objective evidence of substernal, arm, or shoulder pain related to GERD. Id. The Board considered rating the Veteran's disability under another diagnostic code, but found none that would avail the Veteran of a higher rating. 38 C.F.R. § 4.114, Diagnostic Codes 7200-7354. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. ORDER The claim of entitlement to an initial compensable evaluation for service-connected right shoulder strain with osteoarthritis of the acromioclavicular joint is dismissed. The claim of entitlement to an initial evaluation in excess of 10 percent for status post left knee meniscectomy and medial femoral arthroplasty with degenerative arthritis and chondromalacia is dismissed. The claim of entitlement to an initial compensable evaluation for service-connected right knee degenerative arthritis and chondromalacia is dismissed. The claim of entitlement to service connection for right hand finger numbness is dismissed. The claim of entitlement to service connection for left hand finger numbness is dismissed. The claim of entitlement to service connection for right hip condition is dismissed. The claim of entitlement to service connection for left hip condition is dismissed. An initial 20 percent evaluation for service-connected right lower extremity radiculopathy is granted subject to the controlling regulations governing monetary awards. An initial 20 percent evaluation for service-connected left lower extremity radiculopathy is granted subject to the controlling regulations governing monetary awards. The claim of entitlement to an initial compensable evaluation for service-connected cervical spine spondylosis is denied. The claim of entitlement to an initial compensable evaluation for service-connected GERD is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs