Citation Nr: 18140853 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-30 093 DATE: October 9, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to an initial compensable disability rating for a lumbosacral spine disability is denied. Entitlement to an initial disability rating exceeding 10 percent for radiculopathy in the right lower extremity is denied. Entitlement to an initial compensable disability rating for a left shoulder disability is denied. Entitlement to an initial compensable disability rating for a right shoulder disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current acquired psychiatric disorder related to his military service. 2. The preponderance of the evidence is against a finding that the Veteran has a current left knee disability related to his military service. 3. The preponderance of the evidence is against a finding that the Veteran has a current right knee disability related to his military service. 4. The preponderance of the evidence is against a finding that the Veteran has a current left ankle disability related to his military service. 5. The preponderance of the evidence is against a finding that the Veteran has a current right ankle disability related to his military service. 6. The preponderance of the evidence is against a finding that the Veteran’s service-connected lumbosacral spine disability is manifested by a reduction in range of motion of the lumbar spine or incapacitating episodes to include as due to pain, weakness, fatigability, incoordination, or other symptoms during flare-ups. 7. The preponderance of the evidence is against a finding that the Veteran’s service-connected lumbosacral spine disability is manifested by muscle spasms, guarding, localized tenderness, vertebral body fracture with loss of 50 percent or more of the height, or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 8. The preponderance of the evidence shows that the Veteran’s disability picture for his service-connected radiculopathy of the right lower extremity more nearly approximates mild, incomplete paralysis of the quadriceps extensor muscles to include neuralgia. 9. The preponderance of the evidence is against a finding that the Veteran’s service-connected left shoulder disability is manifested by a reduction in range of motion or other compensable loss of function to include as due to pain, weakness, fatigability, incoordination, or other symptoms during flare-ups. 10. The preponderance of the evidence is against a finding that the Veteran’s service-connected right shoulder disability is manifested by a reduction in range of motion or other compensable loss of function to include as due to pain, weakness, fatigability, incoordination, or other symptoms during flare-ups. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for entitlement to an initial compensable disability rating for a lumbsacral spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1113 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2017). 7. The criteria for entitlement to an initial disability rating exceeding 10 percent for radiculopathy in the right lower extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1113 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, DCs 8526-8726 (2017). 8. The criteria for entitlement to an initial compensable disability rating for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1113 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DCs 5200-5203 (2017). 9. The criteria for entitlement to an initial compensable disability rating for a right shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1113 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DCs 5200-5203 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2009 to December 2014. This appeal comes to the Board of Veterans’ Appeals (Board) from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist in regard to the Veteran’s claims. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria: Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for an acquired psychiatric disorder The Board finds that the preponderance of the evidence is against a finding that the Veteran has a current mental disability. The Board notes that the Veteran’s service treatment records show reports of mental health complaints including depression, anxiety, and difficulty sleeping. The service treatment records show a provisional diagnosis of an adjustment disorder with anxiety. See, e.g. August 2014 treatment notes in the Veteran’s service treatment records. However, the treatment notes indicate the Veteran’s relevant symptoms during service were associated with unusual life stressors including a separation from his wife at the time, and the provisional diagnosis was not confirmed by later records pertaining to the period at issue. See id. VA afforded the Veteran a VA examination of his mental health in September 2015 to assess whether the Veteran had an acquired psychiatric disorder that persisted through the period at issue or is otherwise related to his military service. However, while the VA examiner noted the Veteran’s treatment history including his reports of relevant symptoms, the examiner ultimately opined that the Veteran’s symptoms have not met the diagnostic criteria for a mental disability during the period at issue. The mental status evaluation on examination and in the treatment records from the period at issue have revealed generally normal findings. While the Veteran’s VA treatment records show the Veteran pursued treatment for symptoms including difficulty sleeping, dizziness, and shortness of breath, his treatment providers have not diagnosed him with a current disability under applicable diagnostic criteria. In the absence of credible and competent evidence of a current mental disability, the Veteran’s claim must be denied. 2. Entitlement to service connection for bilateral knee and ankle disabilities The Board finds that the preponderance of the evidence is against a finding that the Veteran has a current disability of the knees or ankles. The Board notes the Veteran’s service treatment records show he reported knee and ankle pain during his military service, and treatment providers initially indicated there was evidence of chondromalacia. See March 2012 treatment notes in the Veteran’s service treatment records. While the service treatment records include patellofemoral syndrome among the Veteran’s listed problems, the Board finds that records pertaining to the period at issue do not support a current diagnosis of patellofemoral syndrome. The service treatment records and VA examinations conducted in September 2015 show that multiple X-rays and functional evaluations of the Veteran’s knees and ankles revealed generally normal findings. Subsequent treatment records from Ann Arbor VA Medical Center contain some speculation about tendonitis associated with the Veteran’s long runs based on the Veteran’s description of his symptoms, but the Board finds they do not clearly associate a current disability with an incident of the Veteran’s military service. The VA examinations and treatment providers considered Veteran’s reports of pain and other relevant symptoms but ultimately did not diagnose a current disability of the knees or ankles during the period at issue. While the Board considered the Veteran’s reports of knee and ankle pain, the Board ultimately finds that the Veteran has not demonstrated such pain reaches the level of functional impairment of earning capacity. For example, neither the treatment records nor VA examinations revealed demonstrable functional loss, swelling, or other compelling evidence of functional loss on examination over may years. Even assuming the Veteran does experience substantial pain and swelling associated with increased use of his knees or ankles including during running, the Board finds no compelling statement from a medical professional linking a current disability to an incident of service rather than strain on the joints during activities post-service. Therefore, in the absence of compelling evidence of functional impairment of earning capacity due to a current knee or ankle disability resulting from an incident of service, the Veteran’s claims must be denied. Legal Criteria: Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). 3. Entitlement to an initial compensable disability rating for a lumbar spine disability In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Effective September 26, 2003 through the present, the spine is rated under 38 C.F.R. § 4.71a, DCs 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes (IVDS Formula). For purposes of evaluations under the IVDS formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. In pertinent part, schedular disability ratings are assigned for the spine according to the formulas as follows: Under the General Formula, a 10 percent rating contemplates 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. Under the General Formula, a 20 percent rating contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the 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. Alternatively, under the IVDS Formula, a 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Under the General Formula, a 40 percent rating contemplates unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Under the General Formula, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. There is no equivalent rating under the IVDS Formula. Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no equivalent rating under the General Formula. Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. There is no equivalent rating under the IVDS Formula. Note (1) to DCs 5235-5243 indicates that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. See, e.g., 38 C.F.R. § 4.124a. The Veteran was afforded a VA examination of his lumbosacral spine in September 2015. The examiner acknowledged the Veterans history of back pain and subjective complaints. The examiner also noted that the service treatment record revealed some evidence of localized tenderness or muscle spasms after a reported back injury. However, the current examination and relevant diagnostic imaging revealed no persistent functional limitations such as limitation of range of motion due to include as due to pain during flare-ups. The Board finds that a review of the Veteran’s service treatment records and VA treatment records also reveals no compelling evidence of functional loss of range of motion or incapacitating episodes during the period at issue. The Board finds that neither the VA examination nor pertinent treatment records revealed compelling evidence that the Veteran’s lumbar spine disability has been manifested by compensable symptoms including muscle spasm, guarding, localized tenderness, vertebral body fracture with loss of 50 percent or more of the height, or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. On appeal, neither the Veteran nor his attorney have cited evidence in support of such findings. Ultimately, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture for the lumbar spine more nearly approximates the criteria for a compensable rating under DCs 5235-5243. Therefore, the Veteran’s claim for higher disability ratings under DCs 5235-5243 must be denied. However, as the Veteran is service-connected for compensable right-sided radiculopathy of the lower extremity secondary to his back disability, the Board will also consider whether a higher rating is warranted under applicable rating criteria for radiculopathy. 4. Entitlement to an initial disability rating exceeding 10 percent for radiculopathy in the right lower extremity The Veteran’s radiculopathy of the right lower extremity is currently rated at 10 percent under 38 C.F.R. § 4.124a, DC 8726. Under DC 8526, a 40 percent rating contemplates complete paralysis of quadriceps extensor muscles. A 30 percent rating contemplates severe, incomplete paralysis. A 20 percent rating contemplates moderate, incomplete paralysis. A 10 percent rating contemplates mild, incomplete paralysis. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. See 38 C.F.R. § 4.123; 38 C.F.R. § 4.124a, DCs 8526, 8626. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See 38 C.F.R. § 4.124; 38 C.F.R. § 4.124a, DCs 8526, 8726. In this case, the Veteran has been assigned a 10 percent rating based primarily on evidence of some mild symptoms including neuralgia (mild intermittent pain). The September 2015 VA lumbosacral spine examination revealed no symptoms of a moderate or more severe degree, and neither the Veteran nor his representative have cited evidence in support of such a finding on appeal. Therefore, the Board finds the Veteran’s claim for a higher disability rating must be denied as the preponderance of the evidence is against the claim. 5. Entitlement to an initial compensable disability rating for left and right shoulder disabilities In general, disabilities of the clavicle, shoulder, and arm are rated under 38 C.F.R. § 4.71a, DCs 5200 through 5203. In this case, the Veteran’s right and left shoulder disabilities are service-connected and rated as noncompensable under DC 5201. When rating based on impairment of the shoulder joints, a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. 38 C.F.R. § 4.69. Under VA rating criteria, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level; normal shoulder internal and external rotation is 0 degrees to 90 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. The Veteran’s dominant extremity is the right extremity. See, e.g., September 2015 VA shoulders examination. Moderate to severe impairment of the muscles of the shoulder is also compensable under 38 C.F.R. § 4.73, DCs 5301-5306. However, the Veteran in this case has not stated a claim for service connection for a disability of the muscles, and the VA examinations and treatment providers have not revealed that the Veteran had a compensable shoulder muscle disability during the period at issue. Under DC 5201, limitation of motion at shoulder level (e.g., flexion to 90 degrees) in the major or minor extremity warrants a 20 percent rating. Limitation of motion to midway between side and shoulder level (e.g., flexion between 25 to 90 degrees) warrants a 20 percent rating in the minor extremity and a 30 percent rating in the major extremity. Limitation of motion to 25 degrees from the side warrants a 30 percent rating in the minor extremity and a 40 percent rating in the major extremity. 38 C.F.R. § 4.71a, DC 5201. Traumatic arthritis will be rated as degenerative arthritis. 38 C.F.R. § 4.71a, DCs 5003, 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DC for the specific joint or joints involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a compensable rating of 10 percent requires x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating contemplates occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The Veteran was afforded a VA examination of his shoulders in September 2015. The examiner acknowledged the Veterans history of a shoulder strain, pain, and other subjective complaints, but the examination and diagnostic imaging revealed no compensable functional limitations such as limitation of range of motion due to include as due to pain during flare-ups. A review of the Veteran’s service treatment records and VA treatment records also reveals no compelling evidence of functional loss of range of motion or other objective findings demonstrating lasting functional impairment during the period at issue. On appeal, neither the Veteran nor his attorney have cited evidence in support of such a finding. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture for the shoulders more nearly approximates compensable ratings under the applicable rating criteria. Therefore, the Veteran’s claim must be denied. Referred The issues of entitlement to service connection for left and right foot disabilities were raised in the Veteran’s January 2016 Notice of Disagreement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel