Citation Nr: 1807045 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-17 918A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an increased initial rating for service-connected degenerative disc disease of the lumbar spine, currently rated 20 percent disabling. 2. Entitlement to an increased initial rating for service-connected cervical strain, currently rated 10 percent disabling. 3. Entitlement to an increased initial rating for service-connected residuals of labral tear of the right shoulder, currently rated 10 percent disabling. 4. Entitlement to service connection for a neurological disability of the left lower extremity, claimed as numbness and tingling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from September 2006 to November 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2014. A transcript is of record. The Board remanded the appealed claims in January 2015. The claims now return to the Board for further review. FINDINGS OF FACT 1. For the entire initial rating period, the Veteran's cervical strain has been manifested by forward flexion of the cervical spine greater than 30 degrees, without muscle spasm or guarding severe enough to result in abnormal spinal contour. 2. For the entire initial rating period, the Veteran's lumbar degenerative disc disease has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees. 3. For the entire initial rating period, the Veteran's residuals of labral tear of the right shoulder has been manifested by disability equivalent to limitation of motion of the arm to shoulder level. 4. Objective findings of neurological disability in the left lower extremity have not been shown during the course of the claim. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for cervical strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2017). 2. The criteria for an initial rating in excess of 20 percent for lumbar degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). 3. The criteria for an initial rating in excess of 20 percent for residuals of labral tear of the right shoulder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2017). 4. The criteria for establishing service connection for a neurological disability of the left lower extremity, claimed as numbness and tingling, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initial Ratings The Veteran contends, in effect, that his lumbar degenerative disc disease, cervical strain, and residuals of labral tear of the right shoulder should be assigned higher initial ratings than the ratings presently assigned. 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. Id. Other applicable, general policy considerations are: interpreting 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). 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). I. Spine Ratings The Veteran's cervical strain is rated under Diagnostic Code 5237, and his lumbar degenerative disc disease is rated under Diagnostic Code 5243. Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, a 20 percent rating is assigned for forward flexion of the thoraco-lumbar 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. 38 C.F.R. § 4.71a. A 30 percent rating is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is assigned for 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. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire spine is assigned a 100 percent disability rating. Id. The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id. at Note (1). Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula) or the General Rating Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. at Note (6). Under the IVDS Formula a 40 percent rating may be assigned when either the cervical or lumbar disorder is manifested by incapacitating episodes having a total duration of at least four weeks but less than six weeks over any given twelve month period. An incapacitating episode is defined as period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. As an initial matter, although the Veteran has reported that he has had episodes of back pain requiring him to lie down, the record does not reflect and the Veteran does not allege that he has been prescribed bed rest by a physician. Hence, an evaluation based on the IVDS Formula is not warranted. Additionally, the Veteran is already separately rated for right lower extremity radiculopathy. Accordingly, symptoms associated with that disability cannot be considered in evaluating the Veteran's spine disability. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). With respect to the Veteran's lumbar degenerative disc disease, the Veteran is currently assigned a 20 percent disability rating effective from November 2010. Upon April 2011 VA examination the Veteran complained of lower back pain, as well as dull pain down the legs. The Veteran reported a history of numbness and tingling in the right leg down to the toes as well as in the groin, most often occurring with prolonged sitting. The Veteran reported progressively worsening back problems, treated with a TENS unit, physical therapy stretching, and heat. He experienced pain one to six days per week, and had weekly flare-ups lasting hours which require him to stop activity and rest, precipitated by lifting or carrying approximately 40 pounds, or at other times without cause, and relieved by resting and stretching. The condition resulted in decreased motion, stiffness, and pain, but not weakness or fatigue. He had no associated urinary or fecal incontinence. The Veteran exhibited guarding, pain with motion, and tenderness. An antalgic gait was observed favoring the right. Range of motion of the thoracolumbar spine was 0 to 60 degrees flexion, 0 to 10 degrees extension, 0 to 15 degrees left lateral flexion, 0 to 10 degrees left lateral rotation, 0 to 15 degrees right lateral flexion, and 0 to 15 degrees right lateral rotation. Pain was present on motion and repetitive use, but reduced range of motion was not observed. Lower extremities strength testing revealed no weakness except 4/5 strength in the right great toe. Muscle tone was normal throughout without atrophy. Neurological functioning in the lower extremities was also intact to position sense, pain or pinprick, and light touch, with no dysesthesia found. X-rays revealed disc bulges and moderate to severe neural foraminal narrowing at L4-L5 and L5-S1 without central canal stenosis. The VA examiner assessed lumbar degenerative disc disease. At his November 2014 hearing the Veteran testified to having pain from sitting, standing, and laying down, as well as from weather changes which caused more significant pain. Muscle spasms also occurred nightly. He reported that he experienced flare-ups approximately two to three days per month when bending or straightening, and that these caused a lot of pain. However, he denied being prescribed bed rest for his back. He reported having a back brace for use when he did heavy lifting such as unloading his work truck. He added that he had not taken time off from work due to his back because he did not have days to take off, and instead dealt with it, using pain medication and a TENS unit after work for his back. Upon a January 2015 VA primary care follow-up the Veteran reported discontinuing his hydrocodone and gabapentin himself one month prior, and doing physical therapy exercise/stretches and working out which improved his back pain. He reported that his back pain without medication was of 1/10 severity, informing that he is able both to exercise and to lift weights. He also then denied numbness or tingling in his lower extremities since beginning his exercise program. He added that in his current job he walked approximately five miles per day. Upon a October 2016 VA examination the Veteran estimated that his back pain was a 2 on a 1 to 10 scale, with a flare-ups that may result in increased pain which would make it difficult to tie his shoes or put on his socks, but did not cause him to miss work. He asserted that working on concrete floors all day at work or heavy lifting may precipitate a flare-up, and that they would last a few hours or longer, but he reported that he had not experienced one since June of 2016. The Veteran also reported having no ongoing treatment for his back, though he did stretching for his back. He reported working without restriction or limitation due to his back. At the October 2016 examination, range of motion of the back was entirely normal, though with pain observed upon both right and left lateral flexion. No pain was found with weight bearing, and no additional limitation of motion was found with repetitive use. Full strength was also demonstrated in affected parts. Radiculopathy was assessed in the right lower extremity. The Veteran's low back disability was not found to impact the Veteran's ability to work. At a June 2017 VA treatment the Veteran reported working on concrete all day and that this makes his back worse. At another June 2017 treatment the Veteran reported his pain level at 6/10, with pain in his neck and back. Upon review of the record, the Board finds that a rating in excess of 20 percent is not warranted at any point during the period of the claim. The Board has reviewed and considered the Veteran's assertions as to the symptoms and severity of his back disability. However, the objective medical evidence of record is of greater probative value as to the Veteran's level of impairment. In this regard, forward flexion of the thoracolumbar spine limited to 30 degrees or less has not been shown at any time during the course of the appeal. Moreover, while he exhibited guarding, pain, and tenderness on the 2011 examination, additional limitation was not found based on such symptoms. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that the provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Board notes that flexion was limited, at worst, to 60 degrees during the course of the appeal. Thus, a higher evaluation is not warranted. Hence, the Board finds the preponderance of the evidence against a rating in excess of 20 percent for his lumbar spine degenerative disc disease at any time during the claim period, and the appeal is denied. Turning to the cervical strain, the Veteran is currently assigned a 10 percent initial rating for this condition, effective from November 2010. Upon April 2011 VA examination, the Veteran reported problems with pain when he turns his head to the left, as well as cracking in the neck. He complained of pain which was localized, dull, and mild, lasting minutes, and occurring daily. This was reported to be stable and non-progressive. Objectively, range of motion of the cervical spine was 0 to 35 degrees flexion, 0 to 35 degrees extension, 0 to 25 degrees left lateral flexion, 0 to 60 degrees left lateral rotation, 0 to 35 degrees right lateral flexion, and 0 to 60 degrees right lateral rotation. Pain was present with motion and repetitive use, though reduced range of motion was not observed. X-rays of the cervical spine were normal with preserved disc spaces. The examiner assessed cervical strain. Radicular signs or symptoms were not found. At his November 2014 hearing, the Veteran testified that approximately once every two to three weeks he cannot turn his head to the left without severe pain and limitation of motion. He added that these episodes last about two days. Upon a VA examination in October 2016 the Veteran reported having no change in his cervical spine condition and informed that he currently has no pain in the cervical spine, rating the pain as 0 out of 10. He also informed that he had no ongoing treatment, physical therapy, or medication for his neck. Occasionally he may have a stiff neck in the morning from playing with his children but this resolved with stretching. He also denied any physical restrictions or limitations in his work as a correctional officer due to his neck. Physical examination was found to be entirely normal, with full cervical range of motion and no limitations. X-rays were also normal, as were strength and neurological functioning in the upper extremities. Upon review of the record, the Board concludes that the objective findings as well as the Veteran's self-reported symptoms are consistent with no more than a 10 percent rating based on limitation of motion and absence of objective findings reflecting more severe disability. In this regard, there was no muscle spasm, guarding, or changes to spinal contour shown in the record. Additionally, the objective medical evidence of record does not show limitation of forward flexion to less than 30 degrees or combined range of motion limited to 170 degrees or less. In this regard, forward flexion was, at worst, to 35 degrees and combined range of motion was to 250 degrees. While the 2011 examiner noted pain was present with motion and repetitive use, additional reduced range of motion was not observed. See Thompson, 815 F.3d at 786. Moreover, although he testified at the November 2014 hearing that approximately once every two to three weeks he cannot turn his head to the left without severe pain and limitation of motion of two days duration, such still would not equate to a higher rating. Specifically, considering the 2011 range of motion findings but using zero degrees of left rotation, his combined motion would be 190 degrees. The Board accordingly concludes that the preponderance of the evidence is against assignment of a rating higher than 10 percent for cervical strain at any point during the course of the claim. II. Right Shoulder The Veteran is currently assigned a 20 percent initial rating for residuals of labral tear of the right shoulder under Diagnostic Code 5201, effective from November 2010. The record reflects that he is right-side dominant, and hence his right shoulder his major arm for rating purposes. Under Diagnostic Code 5201, limitation of motion of the major arm at shoulder level warrants a 20 percent evaluation; limitation of motion of the major arm to midway between the side and shoulder level warrants a 30 percent evaluation; and limitation of motion of the major arm to 25 degrees from the side warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201. For VA purposes, normal range of motion of the shoulder joint is from 0 to 180 degrees of forward flexion and from 0 to 180 degrees of abduction. 38 C.F.R. § 4.71, Plate I. Forward flexion is the range of motion from the side of the body out in front and abduction is the range of motion from the side of the body out to the side. Id. Flexion and abduction at shoulder level is 90 degrees. Id. Normal internal and external rotation is from 0 to 90 degrees. Id. Upon April 2011 initial VA examination for shoulder problems, the Veteran reported pain and weakness as well as weekly flare-ups precipitated by raising arms to the side and alleviated by rest. There was no history of recurrent dislocations or inflammatory arthritis. Upon examination, crepitus, tenderness, and guarding of movement were present. X-rays of the right shoulder revealed anterior, superior, and inferior labral tear as well as anterior labral periosteal sleeve avulsion. Range of motion of the right shoulder was as follows: forward flexion from 0 to 130 degrees; abduction from 0 to 115 degrees; internal rotation from 0 to 60 degrees; and external rotation from 0 to 50 degrees. The examiner found objective evidence of pain following repetitive motion, but did not find additional limitation of motion with repetitive motion. Muscle strength for the right shoulder was at 4/5 due to pain. The examiner assessed that the Veteran had significant occupational effects from bilateral shoulder conditions, including difficulties with lifting and carrying, as well as pain. The effects were judged to be mild to moderate depending on level and type of activity. At his November 2014 hearing before the undersigned, the Veteran testified to being unable to lift any weight for any length of time, adding that this prevented him from getting good jobs. He added that work requiring that he carry a 24-ounce spray can and a six-pound device shortly resulted in "unbelievable pain," and driving home after a day of this work was also painful. He testified that he also could not do any type of overhead work due to the shoulder. Upon VA examination in October 2016 addressing the right shoulder, current diagnoses were noted of rotator cuff tendonitis and right labral tear. At the examination the Veteran asserted that he was not claiming an increase in the right shoulder because "it's been the same forever." The Veteran added that if his shoulder begins hurting from carrying groceries home he will lie down and rest, adding that the shoulder pain at its worst is 6 out of 10. He took pain medication for other parts which also helped his shoulder. He denied having flare-ups of shoulder pain. At the October 2016 examination, range of motion of the right shoulder was entirely normal with no pain on examination. The Veteran also demonstrated repetitive use of the right shoulder without functional loss. Right shoulder strength was also found to be 5/5 in forward flexion and abduction. Other tests for right shoulder dysfunction were also negative. X-rays revealed no arthritic changes. MRIs from February 2012 were reviewed reflecting a tear in the anterior-superior labrum, mild tendinopathy of the supraspinatus tendon, and a subchondral cyst in the humeral head. The labral tear was assessed to be the source of functional impairment. Upon review of the record, the Board finds that the preponderance of the evidence is against a rating in excess of the 20 percent currently assigned. The evidence supports a conclusion that the Veteran's shoulder symptoms are no worse than impairment equivalent to limitation of motion at shoulder level. This considers the Veteran's reports including pain, impaired lifting and carrying capacity on that side, and his reports that he cannot do overhead actions. However, objective testing has revealed motion greater than 90 degrees (i.e. above shoulder level). Accordingly, the 20 percent rating adequately addresses the limitations resulting from his right shoulder disability, and a higher rating is not warranted at any time during the course of the appeal. Service Connection The Veteran has claimed service connection for numbness and tingling of the left lower extremity, which he states may be associated with his lumbar degenerative disc disease. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board further notes that Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula. On his April 2011 VA spine examination, neurological testing of the reflexes in the left lower extremity was normal. Sensory examination and motor examination also revealed normal findings in the left lower extremity. Muscle tone was normal and there was no atrophy. Similar findings were noted on the February 2011 nerve examination. The Veteran reported that the numbness and tingling in the right leg went all the way down to his toes, but that he had no numbness or tingling in the left leg. He did report pain in the left leg posterior to the knee. The diagnosis was normal examination. However, on the general medical examination earlier that same day, the impression was radiculopathy, bilateral lower extremity, secondary to degenerative disc disease of the lumbar spine. At his 2014 Board hearing, the Veteran stated that the condition began a few months after he got out of service, but that he saw no doctors for it. He stated that physicians told him it could be due to his degenerative disc disease or his fibromyalgia. He stated that when he gets muscle spasms in his back the pain radiates down his right leg, but not his left. The October 2016 back and nerve examinations revealed normal neurological testing and findings in the left lower extremity. On the spine examination he reported that his back pain may radiate into the right lower extremity and that the pain he previously had in the left leg has not occurred for some time. Upon review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for numbness and tingling of the left lower extremity. Specifically, the medical evidence of record has revealed no objective findings of the claimed condition and VA spine and neurological examiners in 2011 and 2016 have found no neurological disability involving the left leg. VA treatment records also show no evidence of a chronic neurological disability of the left lower extremity. While he reported pain in the left leg early in the claims process and the general medical examiner diagnosed bilateral radiculopathy, there was no objective evidence to support that diagnosis. Indeed, on the general medical examination, limited neurological evaluation was normal. The Board finds the specialized spine and/or neurological examinations in 2011 and 2016, to be significantly more probative than the limited evaluation conducted as part of the general medical examination. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Thus, while the Veteran has reported pain going down the left leg at times during the appeal, radiating pain from his back disability is already contemplated in the evaluation assigned for his degenerative disc disease. In this regard, the General Rating Formula indicates that the rating criteria apply to symptoms such as radiating pain. 38 C.F.R. § 4.71a, General Rating Formula. Without objective findings of neurological disability in the left leg, service connection for a neurological disability of the left leg, claimed as numbness and tingling, is not warranted. In reaching the above conclusions with respect to all issues decided herein, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating in excess of 20 percent for lumbar degenerative disc disease is denied. Entitlement to an initial rating in excess of 10 percent for cervical strain is denied. Entitlement to an initial rating in excess of 20 percent for residuals of labral tear of the right shoulder is denied. Entitlement to service connection for a neurological disability of the left lower extremity, claimed as numbness and tingling, is denied. ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs