Citation Nr: 18151000 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-00 393 DATE: November 20, 2018 ORDER Entitlement to a rating in excess of 10 percent for a left shoulder sprain prior to May 4, 2013 is denied. Entitlement to a rating in excess of 10 percent for a right shoulder sprain prior to May 4, 2013 is denied. Entitlement to a rating in excess of 10 percent for thoracolumbar degenerative joint disease prior to May 4, 2013 is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for recurring right foot calluses is remanded. Entitlement to a rating in excess of 10 percent for a left shoulder sprain since May 4, 2013 is remanded. Entitlement to a rating in excess of 10 percent for a right shoulder sprain since May 4, 2013 is remanded. Entitlement to a rating in excess of 10 percent for thoracolumbar degenerative joint disease since May 4, 2013 is remanded. The issue regarding what initial rating is warranted for pseudofolliculitis barbae is remanded. The issue regarding what initial rating is warranted for recurring left foot calluses is remanded. REFERRED The issue of entitlement to service connection for headaches, to include as secondary to bilateral shoulder disorders, was raised by the May 2013 VA examiner, and the issues of entitlement to service connection for bilateral hammer toes and foot infections were raised by the Veteran in a June 2013 statement. These issues, however, are not currently developed or certified for appellate review. Accordingly, these matters are referred to the RO for appropriate consideration. FINDINGS OF FACT 1. Prior to May 4, 2013, a left shoulder sprain was not manifested by left arm motion limited to shoulder level. 2. Prior to May 4, 2013, a right shoulder sprain was not manifested by right arm motion limited to shoulder level. 3. Prior to May 4, 2013 thoracolumbar degenerative joint disease was not manifested by forward thoracolumbar flexion less than 61 degrees, or by a combined range of motion of the thoracolumbar spine less than 121 degrees, or by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a left shoulder sprain prior to May 4, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to a rating in excess of 10 percent for a right shoulder sprain prior to May 4, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5201. 3. The criteria for entitlement to a rating in excess of 10 percent for thoracolumbar degenerative joint disease prior to May 4, 2013 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1999 to December 2003 and from December 2004 to September 2005. Increased Rating Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The intent of the 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. Bilateral shoulder sprains prior to May 4, 2013 The Veteran contends that his bilateral shoulder sprains are more severely disabling than represented by the 10 percent ratings assigned prior to May 4, 2013. The Veteran was granted entitlement to service connection for bilateral shoulder sprains in a June 2013 rating decision, each rated 10 percent disabling effective from August 8, 2011. The Veteran appealed. The Veteran’s bilateral shoulder sprains are rated under Diagnostic Code 5201 for limitation of motion of the arm. 38 C.F.R. § 4.71a. Under Diagnostic Code 5201, a 20 percent rating is warranted when there is a limitation of motion at shoulder level. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Veteran is right-handed, and therefore his right shoulder is his major extremity. 38 C.F.R. § 4.69. The normal range of shoulder motion is shown by flexion (forward elevation) and abduction from 0 degrees to 180 degrees, and external and internal rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Shoulder level is equivalent to 90 degrees of shoulder flexion or abduction. Id. After a complete review of the record, the Board finds that prior to May 4, 2013, bilateral shoulder sprains were not manifested by range of arm motion limited to shoulder level. On May 3, 2013 a VA examiner found right arm flexion to 150 degrees with pain at 150 degrees, abduction to 110 degrees with pain at 110 degrees, left arm flexion to 150 degrees with pain at 150 degrees and left arm abduction to 150 degrees with pain at 150 degrees. There was no evidence of ankylosis or impairment of the clavicle or scapula. The examiner opined that pain did not significantly limit functional ability during flare-ups or when the joint was used repeatedly over time. The examiner did find that pain caused a disturbance of locomotion and difficulty with lifting and overhead motion. Because arm motion was in excess of 90 degrees, this evidence preponderates against a higher rating. The Board acknowledges that under 38 C.F.R. § 4.59, examination of certain joints should include testing for pain on both active and passive motion. Correia v. McDonald, 28 Vet. App. 158 (2016). While the May 2013 VA examiner did not expressly provide both active and passive measurements, any current examination of the joints or retrospective opinion as to the possible additional limitation of passive motion would be less probative as to the period decided herein than the contemporaneous medical evidence already of record. Therefore, additional development with regard to this period is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). The Board acknowledges the Veteran’s reports of shoulder pain. However, the record does not include evidence of any specific degree of additional limitation of motion due to shoulder pain. Accordingly, the medical evidence pertinent to this period preponderates against finding that the Veteran’s bilateral shoulder symptoms more nearly approximated limitation of arm motion to shoulder level. In sum, the Board finds that the preponderance of the evidence is against finding that a rating higher than 10 percent for bilateral shoulder sprains prior to May 4, 2013 is warranted. Those claims are denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Thoracolumbar degenerative joint disease prior to May 4, 2013 The Veteran contends that his thoracolumbar degenerative joint disease is more severely disabling than represented by the 10 percent rating assigned prior to May 4, 2013. The Veteran was granted entitlement to service connection for thoracolumbar degenerative joint disease in a June 2013 rating decision, rated 10 percent disabling effective from August 8, 2011. The Veteran appealed. The Veteran’s thoracolumbar degenerative joint disease is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The General Rating Formula provides a 10 percent rating where there is forward thoracolumbar flexion 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. Id. A 20 percent rating is assigned when forward thoracolumbar flexion is greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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. These ratings apply 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. However, as previously noted, the general formula for disabilities of the spine expressly states that the criteria and ratings apply “with or without symptoms such as pain.” See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. In other words, the presence of pain is already taken into account in the formula. 68 Fed. Reg. 51454 -5 (Aug. 27, 2003) (“Pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness or aching, which are generally present when there is a disability of the spine.”) After a complete review of the record, the Board finds that prior to May 4, 2013, thoracolumbar degenerative joint disease was not manifested by forward thoracolumbar flexion less than 61 degrees, or by a combined range of motion of the thoracolumbar spine less than 121 degrees, or by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. On May 3, 2013 a VA examiner noted forward flexion limited to 90 degrees, with pain at 90 degrees, extension to 30 degrees with pain at 30 degrees, right lateral flexion to 30 degrees with pain at 30 degrees, left lateral flexion to 30 degrees with pain at 30 degrees, right lateral rotation to 30 degrees with pain at 30 degrees, and left lateral rotation to 30 degrees with pain at 30 degrees. The combined range of motion was 210 degrees. There was no additional limitation of motion after repetitive use, and no guarding or muscle spasm was reported. Because forward flexion was in excess of 60 degrees, the combined range of thoracolumbar motion was in excess of 120 degrees, and there was no guarding or muscle spasm, this evidence preponderates against a higher rating. The Board acknowledges that under 38 C.F.R. § 4.59, examination of certain joints should include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Correia. However, as previously discussed, the pertinent ratings of the spine apply with or without symptoms such as pain. Thus, any deficiency of the spine examinations of record in this regard is harmless, as assessment of pain in accordance with 38 C.F.R. § 4.59 would not provide a basis for the assignment of any higher rating. The Board acknowledges the Veteran’s reports of back pain as well as the report of the May 2013 examiner that the appellant experienced flare-ups with prolonged sitting, and yardwork. However, again, the Board observes that the pertinent criteria and ratings apply “with or without symptoms such as pain.” See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Additionally, the record does not include evidence of any specific degree of additional limitation of motion due to pain or flare-ups. Accordingly, the medical evidence pertinent to this period preponderates against finding that the Veteran’s low back symptoms, to include on flare-up, more nearly approximated forward thoracolumbar flexion less than 61 degrees, a combined range of motion of the thoracolumbar spine less than 121 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. In sum, the Board finds that the preponderance of the evidence is against finding that a rating higher than 10 percent for thoracolumbar degenerative joint disease prior to May 4, 2013 is warranted. The claim is denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54. REASONS FOR REMAND Bilateral knee disorders and right foot calluses In his July 2013 notice of disagreement, the Veteran argued that his claimed bilateral knee disorders and right foot recurring calluses were due to the repetitive physical demands of his active duty service. Specifically, he reported running, marching and hiking in boots. The Veteran also supplied an internet article noting that overuse of the knee joint, such as running and jogging as well as certain “footwear” could contribute to knee osteoarthritis. Remand is required provided the Veteran a medical examination to consider the nature and etiology of any diagnosed knee disorders and right foot calluses. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Bilateral shoulder sprains and thoracolumbar degenerative joint disease since May 4, 2013, and pseudofolliculitis barbae and left foot calluses since August 8, 2011 With regard to all these issues, the Veteran was last examiner by VA in May 2013. In a January 2016 statement the Veteran asserted that he should be provided current examinations. As such, the Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of the disabilities. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). With regard to the Veteran’s pseudofolliculitis barbae, the May 2013 VA examination and June 2013 addendum failed to estimate the total exposed body surface area affected by that disorder. On remand, a VA examiner should offer an opinion detailing the percentage of the exposed area affected during the appellate term. With regard to the Veteran’s recurring left foot calluses, Diagnostic Code 7819 provides that a benign neoplasm may be rated as scars or based on impairment of function. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for one scar that is painful. The May 2013 VA examiner did not address whether the Veteran’s left foot callus was painful, but noted that the claimant used “pads” to treat the condition. On remand a VA examiner should address whether the Veteran’s left foot calluses were painful during the appellate term. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed knee disorder or right foot calluses. For each such diagnosed disorder, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the physical demands of running, marching and hiking in boots. The examiner is advised that the Veteran served in the Marine Corps and that his occupational specialties were finance technician and disbursing technician. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. Schedule the Veteran for an examination to determine the current severity of his bilateral shoulder sprains and thoracolumbar degenerative joint disease. The examiner must test the Veteran’s active motion, passive motion, and (as applicable) pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran reports flare-ups or the record reveals flare-ups of shoulder or spine symptoms, the examiner must expressly address the severity, frequency and duration; name the precipitating and alleviating factors and estimate “per the veteran” the extent to which they affect functional impairment. If feasible, an estimate of any such additional functional impairment should be expressed in terms of degrees of range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral shoulder sprains and thoracolumbar degenerative joint disease alone and discuss the effects of the disabilities on any occupational functioning and activities of daily living. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected pseudofolliculitis barbae and recurring left foot calluses. To the extent possible, the examiner should identify any symptoms and functional impairments due to pseudofolliculitis barbae and recurring left foot calluses alone, and discuss the effects of these disabilities on any occupational functioning and activities of daily living. The examiner must opine whether, since August 8, 2011, the Veteran’s recurring left foot calluses were painful. The examiner must discuss the May 2013 VA examiner’s report that the Veteran used pads to treat the disorder. The examiner must estimate the percentage of total exposed body surface area affected by pseudofolliculitis barbae since August 8, 2011. The examiner must discuss the June 2013 addendum opinion’s report that the disorder affected about one percent of the total body surface area at the time of the May 2013 VA examination. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the   examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel