Citation Nr: 1805685 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-13 990A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for thoracic and lumbar spine degenerative arthritis with thoracic spine dextrorotoscoliosis. 2. Entitlement to an initial rating in excess of 10 percent for left ankle sprain and left Achilles calcaneal spur. 3. Entitlement to a compensable rating for restless leg syndrome. 4. Entitlement to a disability evaluation in excess of 20 percent for a right shoulder strain, on appeal from an initial grant of service connection. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1986 to December 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2009 and May 2011 rating decisions of the Department of Veterans Affairs (VA), Winston-Salem, North Carolina Regional Office (RO). In May 2015, the Veteran presented sworn testimony during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. This claim was previously before the Board in June 2016, at which time it was remanded for additional development. FINDINGS OF FACT 1. The Veteran's thoracic and lumbar spine degenerative arthritis is characterized by forward flexion of the thoracolumbar spine to 80 degrees and pain. 2. The Veteran has additional loss of motion with functional use of his thoracolumbar spine due to pain beginning June 8, 2017. 3. The Veteran's left ankle disability has been characterized by some limitation of motion and painful motion. 4. The Veteran's restless leg syndrome is not productive of a moderate or severe tic prior to June 8, 2017. 5. The Veteran's restless leg syndrome is productive of a moderate tic beginning June 8, 2017. 6. The Veteran is right hand dominant. 7. The Veteran's right shoulder disability is manifested by normal range of motion with pain. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for thoracic and lumbar spine degenerative arthritis with thoracic spine dextrorotoscoliosis have not been met prior to June 8, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for a 20 percent, but not higher, evaluation for thoracic and lumbar spine degenerative arthritis with thoracic spine dextrorotoscoliosis beginning June 8, 2017, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2017). 3. The criteria for a disability rating in excess of 10 percent left ankle sprain and left Achilles calcaneal spur are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2016). 4. The criteria for a compensable evaluation for restless leg syndrome prior to June 8, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2017). 5. The criteria for a 10 percent, but not higher, evaluation for restless leg syndrome beginning June 8, 2017, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2017). 6. The criteria for a disability rating in excess of 20 percent for a right shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication. Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in October 2008. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the June 2017 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. Finally it is noted that this appeal was remanded by the Board in June 2016 in order to afford the Veteran new VA examinations and to obtain any outstanding medical records. The Board is now satisfied that there was substantial compliance with this remand. See Stegall v. West, 11 Vet. Ap. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was afforded a VA examination in June 2017, which the Board finds adequate for adjudication purposes. Accordingly, the Board finds that the remand directives were substantially complied with, and, thus, there is no Stegall violation in this case. II. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2015). A. Disabilities of the Spine Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for 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. A 20 percent disability rating is assigned for 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. i. Evaluation in Excess of 10 Percent for Thoracic and Lumbar Spine Degenerative Arthritis Prior to June 8, 2017 The Veteran is seeking an initial evaluation in excess of 10 percent for his thoracic and lumbar spine degenerative arthritis. The Veteran received a physical examination in May 2008 and indicated that his back pain had existed since January 1990. He reported aching, oppressing and sharp pain, and stiffness. On a scale of 1 to 10 (10 being the worst pain), the Veteran stated his pain level was at 5. Upon examination, the examiner found no evidence of radiating pain on movement. Forward flexion was 90 degrees, and the combined range of motion of the thoracolumbar spine was 240 degrees. The examiner found that pain occurred at 75 degrees on forward flexion. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. At the May 2011 VA examination, the Veteran indicated that he had spine pain and stiffness. However, he stated that there was no decreased motion. The severity of his pain was moderate, and it lasted three to seven days. The frequency of the pain was weekly to monthly. Gait was normal, and there was no ankylosis noted. Forward flexion was 85 degrees on both active and passive range of motion, and the combined range of motion of the thoracolumbar spine was 235 degrees. There was no pain on active motion, passive motion, or after repetitive use. There was also no additional loss of motion on repetitive use. At the May 2015 Board hearing, the Veteran stated that, although he does not have any incapacitating episodes with his spine condition, he does have pain. He believed that he had a limited range of motion due to his condition, and stated that he lives in pain. However, the Veteran never missed work or received reasonable accommodations at his work, used assistive devices, or received any treatment. The Veteran received another VA examination in September 2015, and the examiner noted that, since the May 2011 VA examination, there were no new back issues. The Veteran indicated he still had the same aches and pains, but he tried to stay active, and there were no flare-ups. Upon examination, the Veteran's range of motion was found to be normal: forward flexion was 0 to 90 degrees, and the combined range of motion of the thoracolumbar spine was 240 degrees. The examiner noted guarding, but found that it did not result in abnormal gait or abnormal spinal contour. There were no muscle spasms or localized tenderness noted. The examiner further noted that there was no functional impact on the Veteran's ability to work. The Board finds these examinations highly probative of the Veteran's thoracic and lumbar spine degenerative arthritis and concludes that an initial evaluation higher than 10 percent is not warranted from the date of claim to June 7, 2017. The Veteran's symptoms are consistent with the 10 percent rating that he is currently assigned. There is no evidence of forward flexion of the thoracolumbar spine less than 60 degrees, combined range of motion of the thoracolumbar spine less than 120 degrees, muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, or ankylosis. For these reasons, a rating in excess of 10 percent is not justified. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. While the Veteran has been diagnosed with degenerative arthritis of the lumbar spine, a higher rating under Diagnostic Code 5003 would not appropriate because this diagnostic code is also based on limitation of motion. A higher rating under Diagnostic Code 5243 is not warranted because the Veteran has not been diagnosed with intervertebral disc syndrome. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation of motion determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 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). The Board notes that pain, by itself, does not constitute functional loss. Mitchell, 25 Vet. App. at 32. Evidence weighing against an increased rating is the lack of limitation in range of motion after repetitive use and an essentially normal flexion and combined range of motion for the thoracolumbar spine. There is also no additional uncompensated limitation of motion that can form the basis for a higher rating under DeLuca. The evidence as a whole prior to June 8, 2017, weighs against an additional increased rating under DeLuca. b. Evaluation in Excess of 10 Percent for Thoracic and Lumbar Spine Degenerative Arthritis From June 8, 2017 The Veteran received a VA examination on June 8, 2017, and indicated that his pain was constant. On a scale of 1 to 10, he stated that his pain was from four to eight. It also affected him every day; the range of activities affected included sitting for more than 10 minutes, standing from a sitting position, standing for more than 10 minutes, walking for more than 15 minutes, and lifting, bending, or twisting. The Veteran, however, was employed full time as an engineering technician. The examiner indicated that the Veteran's symptoms had been chronic, and there was no report of recent change or progression of symptoms since 2008. Upon examination, the Veteran's range of motion was found to be abnormal: forward flexion was 0 to 80 degrees, and the combined range of motion of the thoracolumbar spine was 220 degrees. Pain was noted on examination, and caused functional loss on forward flexion and extension, but there were no flare ups, and the Veteran did not have guarding or muscle spasms. The examiner indicated there was no ankylosis of the spine. The Board finds these examinations highly probative of the Veteran's claims and concludes that an initial evaluation higher than 10 percent is warranted. The Board notes that the June 2017 VA examination did not estimate any additional range of motion loss due to pain, weakness, fatigability or incoordination, and is therefore not compliant with the Court's recent decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, at 80 degrees of flexion, the Board finds that the Veteran exhibits some limitation of motion beyond that minimum required for a 10 percent rating that can form the basis for higher rating under DeLuca. Therefore, although the examiner could not specify what the limitation was due to pain, the Board will give the Veteran the benefit of the doubt and find additional uncompensated limitation due to pain. As such, the decisions in DeLuca and Mitchell support an additional 10 percent evaluation and a 20 percent evaluation is warranted, beginning June 8, 2017. B. Disabilities of the Ankle The Veteran's left ankle disability is currently rated pursuant to Diagnostic Code 5271 for limitation of motion for the ankle, which provides a 10 percent rating for moderate limitation of motion, and a 20 percent rating for marked limitation of motion. 38 C.F.R. §§ 4.71a. The descriptive words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. §§ 4.6. Normal range motion of the ankle, for VA compensation purposes, is from zero degrees ankle dorsiflexion to 20 degrees ankle dorsiflexion and from zero degrees ankle plantar flexion to 45 degrees ankle plantar flexion. 38 C.F.R. §§ 4.71a, Plate II. i. Initial Rating in Excess of 10 Percent for Left Ankle Sprain and Left Achilles Calcaneal Spur The Veteran received treatment for his left ankle in November 2008 and reported symptoms of stiffness, lack of endurance and lack of mobility. He did not have weakness, swelling, heat, redness, giving way, lock, fatigability, or dislocation. However, he said he was in constant pain and it was localized. On a scale of 1 to 10, with 10 being the worst pain, the Veteran indicated that his pain level was at three. The pain could be elicited with physical activity, but it was relieved spontaneously and he could function without medication. Upon examination, dorsiflexion was 10 degrees, and plantar flexion was 45 degrees. The examiner also indicated that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. At the May 2011 VA examination, the Veteran indicated that he had pain in his ankle and heel. There was no pain on touch, but there was sometimes pain when he moved and he stated that he had limited range of motion, but that his ankle never "locked up" or swelled. The Veteran then testified at the May 2015 Board hearing that he had pain in his ankle and heel, but it was only pain on motion. He had a limited range of motion in his ankle, but it never "locked up" on him or swelled. The Veteran received a VA examination in September 2015 and reported there was no new injury and he never had ankle surgery. Upon examination, dorsiflexion was 0 to 15 degrees and plantar flexion was 0 to 50 degrees. The examiner found that this was most consistent with a bilateral shortening of the Achilles tendon, which was a developmental/congenital condition and not a disease or injury. There was no pain noted on examination, and no objective evidence of localized tenderness or crepitus. There was also no ankylosis noted. The Veteran received a VA examination in June 2017 for his ankle condition, and stated "[i]t doesn't hurt. It doesn't limit me." He indicated that he currently worked in construction, and liked to run and lift weights. He also averaged 50 to 60 miles running per month. Upon examination, the examiner indicated that there was no evidence of fracture or dislocation. The ankle joint space was normal, and there was no plantar calcaneal spur noted. Upon examination, dorsiflexion was 0 to 15 degrees and plantar flexion was 0 to 50 degrees. The examiner found that the range of motion was normal; any slight limitation in dorsiflexion was still most likely due to having a shorter/tighter Achilles tendon. There was no pain noted on examination, and no objective evidence of localized tenderness or crepitus. There was also no ankylosis noted. Based on the findings above, the Veteran's left ankle disability is characterized by normal limitation of motion, some painful motion, and instability of the left ankle, which closely approximates a moderate ankle disability. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202, 204-207 (1995). The Veteran also competently indicated that his ankle does not hurt nor is it limiting. As such, his symptoms are consistent with the 10 percent rating currently assigned. However, a disability rating of 20 percent is not warranted because the evidence does not support a showing of marked limitation of motion of the left ankle (Diagnostic Code 5271), does not show malunion of the tibia and fibula (Diagnostic Code 5262), ankylosis of the ankle, subastragalar or tarsal joint (Diagnostic Code 5270 and 5272), malunion of the Os calcis or astragalus (Diagnostic Code 5273), or astragalectomy (Diagnostic Code 5274). In assessing the severity of the left ankle disability, the Board has considered the Veteran's assertions regarding his symptoms, to include pain, which he is considered competent to provide. See e.g. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran's statements as to history and symptom reports have also been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability ratings that have been assigned. However, the Board finds that the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the Veteran's ankle disability. As such, while the Board accepts the Veteran's statements with regard to the matters he is competent to address, the Board has relied more on the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected left ankle disability. C. Restless Leg Syndrome i. Compensable Rating Prior to June 8, 2017 The Veteran's restless leg syndrome is rated by analogy as a compulsive tic under 38 C.F.R. § 4.124a, Diagnostic Code 8103. Depending on frequency, severity, and muscle groups involved, a mild tic is rated at zero percent, a moderate tic is rated 10 percent, and a severe tic is rated at 30 percent. The Veteran received an examination for his restless leg syndrome in November 2008 and indicated that there was tingling, numbness, and an abnormal sensation. However, there was no pain, anesthesia, weakness, or paralysis of the legs. At the May 2011 VA examination, the Veteran indicated that, when he tries to sleep, he has to move his legs so that "eventually they calm down and allow [him] to go to sleep." The examiner noted that there was no nerve dysfunction, and also no effect on the Veteran's occupation or usual daily activities. At the May 2015 Board hearing, the Veteran indicated that he had an uncontrollable urge to move his legs. He indicated that it was not painful, but rather more of a discomfort. There was no tingling or numbness, but the condition caused issues with sleeping. When he got the urge to move, he would go to the couch so he would not disturb his wife. The Veteran's restless leg syndrome did not affect his ability to walk or drive. He also indicated that his condition did not seem to be worsening, but it was ever-present. The frequency had been consistent since service, and the Veteran stated that he would not get a lot of sleep at night if he did not take his medication. The Veteran received a VA examination in September 2015 and indicated that he had an urge to move his legs when he was at rest, and the sensation came in spurts. Some nights, he was "unable to sleep well." If his legs felt uneasy at night, he stated that he would just get out of bed and sleep on the couch so not to disturb his wife. Upon examination, muscle strength and deep tendon reflexes were all noted as normal. There was no muscle weakness noted in the lower extremities that were attributable to restless leg syndrome. The examiner found that the Veteran's restless leg syndrome symptoms were mild based on the Veteran's report of discomfort in his legs and occasional night time/sleep disturbances. The Board finds that the evidence weighs against a compensable evaluation for the Veteran's restless leg syndrome prior to June 8, 2017. His current rating is warranted for a mild tic. Higher ratings are available for moderate and severe tics. The evidence weighs against findings of such severity. The Board finds that the Veteran's reports of tingling and numbness, and occasional sleep disturbances, indicative of a mild disability that does not impede his work or his daily activities. The Veteran was able to walk and drive, and there was no indication of any pain. As such, a rating in excess of zero percent for restless leg syndrome is not warranted. ii. Compensable Rating Beginning June 8, 2017 The Veteran received a VA examination for his restless leg syndrome on June 8, 2017 and indicated that he had an unpleasant/uncomfortable urge to move his legs while awake. The feeling was described as, amongst other things, painful and electric. However, it was relieved with movement, such as walking or stretching, and by rubbing or applying pressure to the legs. The Veteran stated that he noticed the urge to move his legs while awake, and during periods of activity, such as lying or sitting. It was especially noted in the evening. The Veteran denied functional limitations related to his restless leg syndrome. Upon examination, muscle strength and deep tendon reflexes were all noted as normal. The Board finds that the evidence supports a 10 percent evaluation for the Veteran's restless leg syndrome beginning June 8, 2017, as the evidence supports a finding of a moderate severity. The Veteran's symptoms worsened, and now included pain. In light of the Veteran's competent testimony at the May 2015 Board hearing that his condition was not painful, the Board finds that his conditioned worsened to a moderate severity beginning June 8, 2017. For these reasons, the Board finds that an evaluation of 10 percent for restless leg syndrome is warranted from this date. An evaluation of 30 percent for a severe tic is not warranted, as his condition does not substantially impede the Veteran's work or daily activities. D. Right Shoulder Strain The Veteran seeks an evaluation in excess of 20 percent for his service-connected right shoulder strain. As noted in the June 2017 VA examination, the Veteran's right hand is his dominant hand. The Veteran's right shoulder strain is rated under Diagnostic Code 5201 for right shoulder limitation of motion. Diagnostic Code 5201 applies to limitation of motion of the arm, and provides a 20 percent rating for arm motion limited at the shoulder level, major or minor, a 30 and 20 percent rating for arm motion limited midway between the side and shoulder level, major and minor respectively, and a 40 and 30 percent rating for arm motion limited to 25 degrees from the side, major and minor respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003). Although the Veteran's service-connected right shoulder disability is rated under Diagnostic Code 5201, the Board will consider all applicable diagnostic codes when evaluating the Veteran's disability. However, as there is no evidence of malunion, nonunion, loose motion, dislocation, ankylosis of the shoulder, or impairment of the humerus, the Diagnostic Codes pertaining to such impairments are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. The Veteran received a VA examination in November 2008 and reported symptoms of weakness, stiffness, and lack of endurance in his right shoulder. He reported pain in the right shoulder which occurred four times per week. The pain was localized, and was aching and sharp. It could be elicited by physical activity and stress, but was relieved with medication. At the time of pain, the Veteran indicated that he could function without medication, but could not do any physical activities. At the May 2015 Board hearing, the Veteran testified that he did not believe he had limited range of motion in his right shoulder. While there was pain, there was no swelling or problems reaching overhead. He stated that he had problems lifting with his right arm, but could carry anything. The Veteran indicated that there was fatigue, tiredness, and aching pain after doing chores in the yard, he could lift his arm to shoulder level if there was no repetitive activity. The Veteran received a VA examination in September 2015 and indicated he had intermittent aches and pains that were not an issue. Upon examination, the range of motion for the right shoulder was all normal. There was no additional functional loss or range of motion after three repetitions. The examiner indicated that the Veteran's right shoulder strain had resolved, but he had mild degenerative arthritis involving the acromioclavicular joint and the glenohumeral joint that was consistent with the natural aging process. The Veteran received a VA examination in June 2017 and indicated that his shoulder symptoms were intermittent. He stated that he would feel a "twinge" in his right shoulder about once or twice a month while lifting weights or doing something physical. Upon examination, the range of motion for the right shoulder was all normal. There was no additional functional loss or range of motion after three repetitions. The examiner indicated that activities which involve repeated lifting overhead were likely to result in discomfort. The Board finds that the evidence weighs against a rating in excess of 20 percent for the Veteran's right shoulder strain. At the outset, the Board notes that the Veteran's range of motion has consistently been normal. He was assigned compensable ratings throughout the appeal based on the provisions of 38 C.F.R. § 4.59, which allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Here, the evidence indicates that the Veteran still has normal range of motion for his shoulder, but he experiences pain. There is competent evidence that during flare-ups, the pain limited the Veteran's range of motion to shoulder level, which still warrants a 20 percent evaluation. As such, a rating in excess of 20 percent is not warranted. ORDER An initial evaluation in excess of 10 percent for thoracic and lumbar spine degenerative arthritis with thoracic spine dextrorotoscoliosis prior to June 8, 2017, is denied. A 20 percent, but not higher, evaluation for thoracic and lumbar spine degenerative arthritis with thoracic spine dextrorotoscoliosis for the period beginning June 8, 2017, is granted, subject to the law and regulations governing the payment of monetary benefits. An initial evaluation in excess of 10 percent for left ankle sprain and left Achilles calcaneal spur is denied. An initial compensable evaluation for restless leg syndrome prior to June 8, 2017, is denied. A 10 percent, but not higher, evaluation for restless leg syndrome for the period beginning June 8, 2017, is granted, subject to the law and regulations governing the payment of monetary benefits. An evaluation in excess of 20 percent for right shoulder strain is denied. ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs