Citation Nr: 18151275 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 12-18 491 DATE: November 16, 2018 ORDER Entitlement to an evaluation of 30 percent, and no greater, for the service-connected right shoulder disability is granted. Entitlement to an evaluation in excess of 10 percent for the service-connected lumbar disability is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s right shoulder maintained a near-full range of motion, but demonstrated weakness and stiffness affecting the Veteran’s use of the joint. 2. Throughout the appeal period, the Veteran’s lumbar spine disability manifested in a limited range of motion greater than 60 degrees in flexion, with pain, muscle spasm, and localized tenderness. CONCLUSIONS OF LAW 1. The criteria for establishing an evaluation of 30 percent for the service-connected right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5203 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 2. The criteria for establishing an evaluation in excess of 10 percent for the service-connected lumbar disability have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from April 1988 to October 1988 and from April 1990 to April 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge (VLJ) at a hearing in June 2015; that VLJ is no longer available. The Board notified the Veteran in a September 2018 letter that she has the right to testify at a new hearing before a VLJ who will participate in the final determination of her claim. See 38 C.F.R. § 20.707. The Veteran responded in a timely manner, declining a new Board hearing. In September 2015, the Board remanded the Veteran’s appeal with instruction to provide new VA examinations. She underwent examinations in December 2015, but the Board remanded again in June 2016 finding that the examinations did not comply with the Board’s instructions. She underwent additional examinations in August 2016 and November 2016. In August 2017, the Board again found that the examinations did not comply with the remand instructions and remanded for additional examinations and obtain relevant records. Examinations were provided in February 2018 and the appropriate records were obtained. The Board finds that these examinations explicitly addressed the remand instructions and is therefore satisfied that the instructions in its remands of September 2015, June 2016, and August 2017 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. §4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of sections 4.40 and 4.45 pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups which resulted in functional loss. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. at 207-08; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell, 25 Vet. App. at 37-38. Finally, painful motion is an important factor of disability with any form of arthritis. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability; actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. 1. Entitlement to an evaluation in excess of 20 percent for the service-connected right shoulder disability The Veteran’s right shoulder disability is current rated under Diagnostic Code (DC) 5203. The shoulder and arm codes distinguish between the major, or dominant, extremity and the minor, or non-dominant, extremity. 38 C.F.R. § 4.69. The evidence shows the Veteran to be right-hand dominant. Diagnostic Code 5203 provides for a 10 percent evaluation where there is malunion of the clavicle or scapula, or nonunion of the clavicle or scapula without loose movement, either major or minor. A 20 percent rating is assigned where there is dislocation of the clavicle or scapula or nonunion of the clavicle or scapula with loose movement, either major or minor. The other potentially applicable code is DC 5201, which governs limitation of motion of the arm. Where the arm’s range of motion is limited to shoulder level, a 20 percent rating is assigned to either a major or minor. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity. Diagnostic Codes 5200 and 5202 are not applicable here, as DC 5200 governs ankylosis and DC 5202 governs impairment of the humerus. The VA examinations have shown that the Veteran does not suffer from either of these types of shoulder and arm disabilities. The Veteran was afforded several VA shoulder examinations throughout the pendency of this appeal. At the December 2011 VA examination, the Veteran reported stiffness, lack of endurance, and pain in the right shoulder. She described experiencing flare-ups where it is painful to lift the arm. The range of motion of the Veteran’s right shoulder was measured to be 180 degrees in flexion and abduction, with painful motion beginning at 180 degrees in flexion and at 160 degrees in abduction. External and internal rotation were not measured on this examination. The range of motion did not change after repetitive use testing, and the examiner did not describe whether it changed during flare-ups. The Veteran’s shoulder was positive in the lift-off subscapularis test, the crank apprehension and relocation test, and the cross-body adduction test. At the February 2014 VA examination, the Veteran reported intermittent pain in the right shoulder, as well as cracking and popping. She did not report any flare-ups affecting the function of the shoulder. The range of motion of the Veteran’s right shoulder had worsened to 170 degrees in flexion and abduction, with painful motion not noted on this examination. External and internal rotation were not measured on this examination. The range of motion did not change after repetitive use testing. The examiner noted pain on palpation. The muscle strength testing was normal. The Veteran’s shoulder was positive in the Hawkins impingement test and the cross-body adduction test, but negative in the lift-off subscapularis test and the crank apprehension and relocation test. At the November 2015 VA examination, the Veteran again reported intermittent pain in the right shoulder, as well as stiffness, weakness, cracking and popping. She reported flare-ups involving increased stiffness, weakness, pain, cracking, and popping. The range of motion of the Veteran’s right shoulder again measured 170 degrees in flexion and abduction, with painful motion noted but not contributing to functional loss. External and internal rotation were both measured to be 90 degrees. The range of motion did not change after repetitive use testing. The examiner noted pain on palpation. The muscle strength testing was normal. The Veteran’s shoulder was positive in the Hawkins impingement test; given the results of this test, the examiner noted that the Veteran might have rotator cuff tendinopathy. The examiner identified right shoulder impingement syndrome as an additional diagnosis on this examination. At the August 2016 VA examination, the Veteran reported having a limited range of motion in her right shoulder, although the examiner measured the range of motion to be 180 degrees in flexion and abduction and 90 degrees in external and internal rotation, with no painful motion or pain on palpation noted. However, the examiner noted in the remarks that the Veteran reported the flexion and abduction tests produced pain in her right shoulder. The range of motion did not change after repetitive use testing, the muscle strength testing was normal. The examiner did not address whether the Veteran experienced flare-ups. At the November 2016 VA examination, the Veteran reported increased pain in her shoulder throughout the work week as a mail carrier, carrying letters up to 35 pounds, with pain upon overhead movement by the end of the week. She reported that she needs to stretch for about 40 minutes in the morning before she has her normal range of motion. The examiner measured the range of motion to be 180 degrees in flexion and abduction and 90 degrees in external and internal rotation, with no painful motion noted. Pain on palpation was noted, as was pain with weight-bearing. There were no changes in the range of motion with repeated movements, and muscle strength testing was normal. Lastly, at the February 2018 VA examination, the Veteran reported stiffness, weakness, pain, cracking, and popping in her right shoulder. She reported that the stiffness can increase in severity to where it is difficult to move the arm. The range of motion of the Veteran’s right shoulder was measured as 170 degrees in flexion and abduction, 85 degrees on external rotation, and 90 degrees on internal rotation. Painful motion was noted on flexion, abduction, and external rotation in this examination. The range of motion did not change after repetitive use testing. The examiner noted that the decrease in range of motion limited the Veteran’s ability to use maximal force and strength in her right shoulder. The examiner also noted that pain, weakness, fatigability, or incoordination significantly limit the Veteran’s functional ability with repeated use over time; the Veteran reported scenarios involving repetitive use over time or flare-ups resulting in functional loss without significant or determinable change in the range of motion. The examiner also noted that pain in the joint with daily use causes a weaker joint, and the muscle strength testing was 4 out of 5 in flexion and abduction in the Veteran’s right shoulder. In June 2015, the Veteran testified at the Board hearing that she did not seek treatment for her right shoulder from VA, and that she occasionally was treated by her private chiropractor for this disability. These private records indicate complaints of right shoulder and neck pain and some tingling in her right arm, but do not contain range of motion measurements or further description of any functional loss. At the hearing, the Veteran testified that she usually wakes up an extra hour before getting her children up so she can get her shoulder warmed up, loose, and moving. She also testified that lifting and carrying stacks of mail and closing the heavy doors on the mail truck cause pain in her shoulder and occasionally makes it feel like it is popping out. After consideration of the foregoing evidence, the Board finds that an increase in evaluation is appropriate. The Veteran is currently in receipt of the maximum rating under DC 5203, governing impairment of the clavicle or scapula, including dislocation and loose movement of the arm in the socket. Considering the Veteran’s right shoulder disability under DC 5201, which governs limitation of motion of the arm, also does not garner an increase. The Veteran’s range of motion throughout the appeal period is consistently 170 degrees or better in both flexion and abduction, both regularly and during flare-ups; that is, her arm’s range of motion is not limited to shoulder height, which corresponds with a 20 percent evaluation, or less, to correspond to a higher evaluation. However, it is clear from the record that weakness and stiffness result in functional impairment of the Veteran’s right shoulder, which in turn affects the Veteran’s ability to perform her job duties as a mail carrier. Further, the stiffness the Veteran experiences most mornings requires 40 minutes to an hour of warming up and stretching before she can achieve her full range of motion. Accordingly, under the provisions of DeLuca and Mitchell, and considering the policy of assigning the next higher rating where there is doubt as to the proper evaluation, see 38 C.F.R. § 4.3, the Veteran is entitled to an increase to the next higher rating of 30 percent. See Mitchell, 25 Vet. App. at 37-38; Deluca, 8 Vet. App. at 207-07. The Board notes that the Veteran reported occasional numbness in her right arm and hand and later in both arms and hands. The August 2016 and February 2018 examiners both noted that numbness in the hand is not typical of any shoulder pathology, and likely results from a cervical spine disability. As such, the Board finds that it is not appropriate to consider this symptom as a part of the right shoulder disability. 2. Entitlement to an evaluation in excess of 10 percent for the service-connected lumbar disability The Veteran’s lumbar spine disability is currently rated as 10 percent disabling under Diagnostic Code (DC) 5237 from April 15, 2000. Spine disabilities are typically rated under the same general formula, except for intervertebral disc syndrome (IVDS), which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5235-5243. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent rating for a lumbar spine disability is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. All of these evaluations under the general formula for rating spine injuries consider the disabilities 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 Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, 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. Id. Like the shoulder disability, the Veteran’s lumbar spine disability has been examined several times throughout the pendency of this appeal. At the December 2011 VA examination, the Veteran reported stiffness, weakness, and decreased motion, and denied experiencing fatigue, spasms, paresthesia, and numbness. She reported bladder problems and occasional falls due to the lumbar spine disability. The range of motion of the thoracolumbar spine was measured to be 80 degrees in flexion, with objective evidence of painful motion beginning at 85 degrees; 25 degrees in extension, with no objective evidence of painful motion; 20 degrees in right lateral flexion; and 30 degrees in left lateral flexion. After three repetitions, the range of motion increased to 90 degrees in flexion and 30 degrees in extension. There was no pain on palpation, guarding, or muscle spasm noted on the examination. At the February 2014 VA examination, the Veteran reported stiffness, which is worse in the mornings, and occasional numbness and tingling in the right leg. The range of motion of the thoracolumbar spine was measured to be 70 degrees in flexion; 20 degrees in extension; and 30 degrees in right and left lateral flexion and rotation. There was no objective evidence of pain noted on the examination, and the range of motion remained unchanged after three repetitions. The examiner noted tenderness on palpation over the mid-line L4 to S1. Muscle strength testing and reflex testing was all normal. At the November 2015 VA examination, the Veteran reported extreme stiffness, which is worse in the mornings and sometimes takes 2 to 3 hours to loosen up. She reported occasional lumbar pain radiating to her legs and even more infrequent numbness and tingling in her legs. She also reported that staying in one position exacerbates her lumbar spine disability. The range of motion of the thoracolumbar spine was measured to be 80 degrees in flexion; 30 degrees in extension; and 30 degrees in right and left lateral flexion and rotation. Pain was noted on the examination in forward flexion, but the examiner noted this did not result in functional loss. After three repetitions, the range of motion was measured to be 70 degrees in flexion; 30 degrees in extension; and 20 degrees in right and left lateral flexion and rotation. The examiner noted tenderness on palpation in the lumbar area and muscle spasm, but these did not in an abnormal gait or abnormal spinal contour. Muscle strength testing and reflex testing was all normal. The examiner noted mild radiculopathy of the lower extremities. At the August 2016 VA examination, the Veteran reported symptoms but the examiner did not describe them, beyond referencing leg pain and stiffness. The examiner noted that he was unable to test the range of motion due to Waddell’s sign. The examiner noted tenderness on palpation in the lumbar area and muscle spasm, but these did not in an abnormal gait or abnormal spinal contour. Muscle strength testing and reflex testing was all normal. At the November 2016 VA examination, the Veteran reported stiffness in the mornings that takes 45 minutes to loosen up. She reported difficulty running, walking, and bending, and that she stopped coaching her sons’ soccer team due to the disability. She also reported flare-ups involving her back going out every few months for approximately 3 days. The range of motion of the thoracolumbar spine was measured to be 75 degrees in flexion; 30 degrees in extension; 20 degrees in right lateral flexion; 25 degrees in left lateral flexion; and 30 degrees in right and left lateral rotation. Pain was noted on the examination, but the examiner noted this did not result in functional loss. After three repetitions, the range of motion remained the same. The examiner noted tenderness on palpation in the lumbar area and muscle spasm, but these did not in an abnormal gait or abnormal spinal contour. Muscle strength testing and reflex testing was all normal. The examiner noted mild radiculopathy of the right lower extremity. At the February 2018 VA examination, the Veteran reported pain and discomfort, and difficulty standing for long periods of time. She also reported urinary incontinence, frequency, and urgency related to the back disability. The range of motion of the thoracolumbar spine was measured to be 90 degrees in flexion; 30 degrees in extension; 30 degrees in right and left lateral flexion; and 25 degrees in right and left lateral rotation. Pain was noted on the examination in forward flexion and right and left lateral flexion. After three repetitions, the range of motion remained the same. The examiner noted that, based on the Veteran’s descriptions, she would experience increased pain on repetitive use leading to decreased functional capacity, but that he could not estimate any range of motion loss because it would vary depending on the extent of the repetitive use. The examiner noted tenderness on palpation in the lumbar area and muscle spasm, but these did not in an abnormal gait or abnormal spinal contour. Muscle strength testing and reflex testing was all normal except for slightly decreased strength in the left and right hip flexors. The examiner noted mild radiculopathy of the lower extremities. The Veteran’s private treatment records reflect complaints of ongoing pain and discomfort, as well as muscle spasms following acute injuries. These do not contain range of motion measurements. The Veteran’s complaints in the private treatment records do not differ greatly from the lay statements she made in the VA examinations. Likewise, the Veteran’s VA treatment records do not contain further evidence relating to the severity of her lumbar spine disability. At the June 2015 Board hearing, the Veteran testified that she usually wakes up an hour early before her children to give her back time to loosen up. She testified that she purchased shoes with extra cushion in order to help protect her back, and that she experiences periodic flare-ups with increased pain that precludes activity and is relieved with rest and a heating pad. She expressed that she would like to call out from work when these flare-ups occur, but that she could be threatened with termination and so usually went to work even when experiencing the increased pain. After review of the relevant evidence, the Board finds that an increased evaluation is not warranted in this case. At the VA examinations, the Veteran’s most limited range of motion was 70 degrees in forward flexion. There is evidence of muscle spasm and localized tenderness, but the examiners all indicated that this did not result in abnormal gait or abnormal spinal contour. These symptoms are consistent with the criteria for a 10 percent rating. Although the Veteran reported occasional flare-ups, the evidence reflects that these primarily involve increased pain. The Veteran testified that her flare-ups cause her to pause activity and rest on a heating pad to relieve the pain, but there is also evidence that she continues to work as a mail carrier through flare-ups of her back, indicating that the increased pain does not lead to functional loss. Accordingly, an increase to the next higher evaluation under DeLuca and Mitchell is not appropriate in this case. As there is no evidence of IVDS, those diagnostic codes are not applicable here. In any event, there is no indication in the record of incapacitating episodes with prescribed bed rest. Finally, the Board notes that the Veteran’s symptoms associated with her back disability have been rated separately, including urinary incontinence and lower extremity radiculopathy. The Veteran is currently in receipt of a 10 percent evaluation for urinary frequency, urgency, and incontinence secondary to the service-connected lumbar strain under Diagnostic Code 7542, which is rated using the criteria for voiding dysfunction. 38 C.F.R. § 4.115b. Voiding dysfunction is rated with regard to urine leakage, urinary frequency, or obstructive voiding. 38 C.F.R. § 4.115a. The Veteran is rated using the criteria for urinary frequency, as this best matches her reported symptoms. Urinary frequency with a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent evaluation. A daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval of less than one hour or awakening to void five or more times per night warrants a 40 percent evaluation. As the Veteran reported a daytime voiding interval of two to three hours, a 10 percent evaluation is appropriate for this secondary disability. The Veteran is also currently in receipt of 10 percent evaluations for sciatica of the left and right lower extremities under Diagnostic Code 8520. This rating schedule provides for 10, 20, 40, and 60 percent ratings depending on whether incomplete paralysis of the nerve is mild, moderate, moderately severe, or severe with marked muscular atrophy, respectively. Complete paralysis of the nerve, in that the foot dangles and drops, there is no active movement of the muscles below the knee possible, or flexion of the knee is weakened or lost, warrants an 80 percent rating. 38 C.F.R. § 4.124a, DC 8520. An introductory note to the rating schedule for diseases of the peripheral nerves indicates that where the involvement is wholly sensory, the rating should be for the mild, or at most moderate, degree. The words “mild,” “moderate,” and “severe,” as used in the various diagnostic codes, are not defined in the rating schedule; the Board evaluates all of the relevant evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. At the November 2015 VA examination, the Veteran reported occasional pain radiating to her legs and infrequent numbness and tingling in her left leg. The examiner noted mild intermittent pain in both legs and mild paresthesias and numbness in the left lower extremity. Similarly, at the November 2016 VA examination, the Veteran reported intermittent right leg numbness with prolonged standing or walking and the examiner noted mild paresthesias and numbness in the right lower extremity. Accordingly, the 10 percent evaluations for the left and right lower extremity sciatica are appropriate. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel