Citation Nr: 19158951 Decision Date: 07/30/19 Archive Date: 07/30/19 DOCKET NO. 14-20 217 DATE: July 30, 2019 ORDER Entitlement to an initial 40 percent rating effective March 15, 2018, for radiculopathy of the left lower extremity is granted. Entitlement to an initial 40 percent rating effective March 15, 2018, radiculopathy of the right lower extremity is granted. Entitlement to an initial 20 percent rating effective March 15, 2018, for degenerative joint disease of the right knee is granted. Entitlement to an initial 40 percent rating effective June 6, 2017, for a low back disability is granted. Entitlement to an initial rating greater than 10 percent prior to May 23, 2016, and greater than 20 percent thereafter, for degenerative joint disease of the right shoulder is denied. Entitlement to an initial rating greater than 10 percent prior to June 6, 2017, and greater than 20 percent thereafter, for degenerative disc disease of the cervical spine is denied. FINDINGS OF FACT 1. The record evidence shows that, prior to March 15, 2018, the Veteran’s service-connected radiculopathy of the left lower extremity is manifested by, at worst, mild incomplete paralysis of the sciatic nerve. 2. The record evidence shows that, effective March 15, 2018, the Veteran’s service-connected radiculopathy of the left lower extremity is manifested by, at worst, moderately severe incomplete paralysis of the sciatic nerve. 3. The record evidence shows that, prior to March 15, 2018, the Veteran’s service-connected radiculopathy of the right lower extremity is manifested by, at worst, mild incomplete paralysis of the sciatic nerve. 4. The record evidence shows that, effective March 15, 2018, the Veteran’s service-connected radiculopathy of the right lower extremity is manifested by, at worst, moderately severe incomplete paralysis of the sciatic nerve. 5. The record evidence shows that, prior to March 15, 2018, the Veteran’s service-connected degenerative joint disease of the right knee is manifested by, at worst, x ray evidence of arthritis. 6. The record evidence shows that, effective March 15, 2018, the Veteran’s service-connected degenerative joint disease of the right knee is manifested by, at worst, frequent episodes of effusion. 7. The record evidence shows that, prior to June 6, 2017, the Veteran’s service-connected low back disability is manifested by, at worst, forward flexion to 70 degrees with pain. 8. The record evidence shows that, effective June 6, 2017, the Veteran’s service-connected low back disability is manifested by, at worst, forward flexion of the thoracolumbar spine to 31 degrees with pain on passive range of motion testing. 9. The record evidence shows that, prior to May 23, 2016, the Veteran’s service-connected degenerative joint disease of the right shoulder is manifested by, at worst, complaints of pain, abduction to 110 degrees, and x-ray evidence of arthritis. 10. The record evidence shows that, effective May 23, 2016, the Veteran’s service-connected degenerative joint disease of the right shoulder is manifested by, at worst, flexion to 76 degrees on passive range of motion testing with pain. 11. The record evidence shows that, prior to June 6, 2017, the Veteran’s service-connected degenerative disc disease of the cervical spine is manifested by, at worst, complaints of pain and x ray evidence of arthritis. 12. The record evidence shows that, effective June 6, 2017, the Veteran’s service-connected degenerative disc disease of the cervical spine is manifested by, at worst, flexion to 32 degrees on active range of motion in non-weight bearing with pain. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 40 percent rating effective March 15, 2018, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8620 (2018). 2. The criteria for entitlement to an initial 40 percent rating effective March 15, 2018, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8620 (2018). 3. The criteria for entitlement to an initial 20 percent rating effective March 15, 2018, for degenerative joint disease of the right knee have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5258 (2018). 4. The criteria for entitlement to an initial 40 percent rating effective June 6, 2017, for a low back disability have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5010-5242 (2018). 5. The criteria for entitlement to an initial rating greater than 10 percent prior to May 23, 2016, and greater than 20 percent thereafter, for degenerative joint disease of the right shoulder have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5003-5201 (2018). 6. The criteria for entitlement to an initial rating greater than 10 percent prior to June 6, 2017, and greater than 20 percent thereafter, for degenerative disc disease of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5010-5242 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1968 to February 1970. The Veteran appointed his current service representative to represent him before VA by filing a completed VA Form 21-22 at the Agency of Original Jurisdiction (AOJ) in March 2017. In an April 2014 rating decision, the AOJ granted service connection for radiculopathy of the left lower extremity and assigned an initial 10 percent rating effective April 21, 2011. A videoconference Board hearing was held in June 2017 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In January 2018, the Board remanded the currently appealed claims to the AOJ for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ schedule the Veteran for updated VA examinations for each of his service-connected disabilities. These examinations occurred in March 2018. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). In a May 2019 rating decision, the AOJ assigned a higher initial 20 percent rating effective June 6, 2017, for the Veteran’s service-connected low back disability, a higher initial 20 percent rating effective June 6, 2017, for the Veteran’s service-connected degenerative disc disease of the cervical spine, and a higher initial 20 percent rating effective May 23, 2016, for the Veteran’s service-connected degenerative joint disease of the right shoulder. Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. Because the Veteran currently lives within the jurisdiction of the RO in Atlanta, Georgia, that facility has jurisdiction in this appeal. Increased Rating The Veteran contends that his service-connected radiculopathy of the bilateral lower extremities, degenerative joint disease of the right knee, low back disability, degenerative joint disease of the right shoulder, and degenerative disc disease of the cervical spine are more disabling than currently (and initially) evaluated. Neither the Veteran nor his representative has raised any other issues nor have any other issues with respect to increased rating claims been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that Board not required to address issues unless specifically raised by claimant or reasonably raised by record evidence). 1. Entitlement to initial ratings greater than 10 percent for radiculopathy of the left lower extremity and for radiculopathy of the right lower extremity The Board finds that the evidence supports assigning separate initial 40 percent ratings effective March 15, 2018, for radiculopathy of the left lower extremity and for radiculopathy of the right lower extremity. Consistent with the Veteran’s lay assertions and Board hearing testimony, the record evidence shows that the disability attributable to his service-connected radiculopathy of the bilateral lower extremities worsened, at least effective March 15, 2018. Prior to this date, the record evidence shows that his service-connected radiculopathy of the bilateral lower extremities is manifested by, at worst, mild incomplete paralysis of the sciatic nerve in each of the lower extremities (i.e., a 10 percent rating under DC 8620). See 38 C.F.R. § 4.124a, DC 8620 (2018). For example, the Veteran’s available service treatment records show no complaints of or treatment for a low back disability. The post-service evidence shows that, on VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in October 2012, physical examination showed moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in each of the bilateral lower extremities. The VA examiner stated that both of the Veteran’s sciatic nerves were involved and he experienced mild radiculopathy as a result. No other neurological abnormalities were present. The diagnoses included severe degenerative changes, status-post low back fusion and right lower extremity radiculopathy. Contrary to the Veteran’s assertions and Board hearing testimony, the record evidence shows that, prior to March 15, 2018, his service-connected radiculopathy of the left lower extremity and radiculopathy of the right lower extremity are manifested by, at worst, mild incomplete paralysis of each of the sciatic nerves (as seen on VA examination in October 2012). This supports the assignment of separate initial 10 percent ratings for each of the Veteran’s lower extremities under DC 8620. Id. There is no indication that, prior to March 15, 2018, the Veteran experienced at least moderate incomplete paralysis of the sciatic nerve in either of his lower extremities as is required for a 20 percent rating under DC 8620. Id. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to initial ratings greater than 10 percent prior to March 15, 2018, for either his service-connected radiculopathy of the left lower extremity or his service-connected radiculopathy of the right lower extremity. Thus, the Board finds that the criteria for an initial rating greater than 10 percent prior to March 15, 2018, for radiculopathy of the left lower extremity or for radiculopathy of the right lower extremity have not been met. In contrast, the record evidence supports the assignment of separate initial 40 percent ratings effective March 15, 2018, for radiculopathy of the left lower extremity and for radiculopathy of the right lower extremity. VA peripheral nerves condition DBQ on March 15, 2018, documented the presence of severe constant pain, severe intermittent pain, and mild paresthesias and/or dysesthesias in each of the Veteran’s bilateral lower extremities. This examination also showed that he experienced no numbness of the right lower extremity and only moderate numbness of the left lower extremity. This examination further showed that the Veteran experienced mild incomplete paralysis of the sciatic nerves in each of his lower extremities. Taken together, this evidence reasonably supports the assignment of initial 40 percent ratings effective March 15, 2018, under DC 8620 for the Veteran’s service-connected radiculopathy of the left lower extremity and service-connected radiculopathy of the right lower extremity. Id. In other words, it appears that the Veteran currently experiences symptomatology most closely associated with moderately severe incomplete paralysis of the sciatic nerve in each of his lower extremities. The evidence does not suggest, however, that the Veteran experiences severe incomplete paralysis of the sciatic nerve with marked muscular atrophy or complete paralysis of the sciatic nerve (i.e., a 60 or 80 percent rating under DC 8620) such that an initial rating greater than 40 percent is warranted for either of the Veteran’s lower extremities at any time during the appeal period. Id. Although the March 15, 2018, VA peripheral nerves conditions DBQ documented the presence of severe constant pain and severe intermittent pain in each of the Veteran’s lower extremities, it also showed that there was no muscle atrophy present in either of these extremities. In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for separate initial 40 percent ratings effective March 15, 2018, for radiculopathy of the left lower extremity and for radiculopathy of the right lower extremity have been met. See also 38 C.F.R. § 3.102 (2018). 2. Entitlement to an initial rating greater than 10 percent for degenerative joint disease of the right knee The Board next finds that the evidence supports assigning a higher initial 20 percent rating effective March 15, 2018, for degenerative joint disease of the right knee. Consistent with the Veteran’s lay assertions and Board hearing testimony, the record evidence shows that the symptomatology attributable to his service-connected degenerative joint disease of the right knee worsened on March 15, 2018. Prior to this date, the record evidence shows that this disability is manifested by, at worst, x-ray evidence of arthritis. For example, the Veteran’s available service treatment records show that he bruised his right knee and was diagnosed as having a contusion in April 1968. X-rays taken at that time also showed that he had “soft tissue swelling but no bone or joint abnormality.” The post-service evidence also shows that the Veteran’s right knee showed degenerative changes and no fracture on VA x-rays taken in November 2010. On VA knee and lower leg conditions DBQ in October 2012, the Veteran’s complaints included “on and off” right knee pain. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran’s in-service right knee injury was noted. He denied experiencing flare-ups of right knee pain. Range of motion testing of the right knee showed flexion to 130 degrees with objective evidence of painful motion beginning at 130 degrees and no limitation of extension. There was no additional limitation of motion on repetitive testing. Physical examination of the right knee showed weakened movement, pain on movement, tenderness to palpation, 4/5 muscle strength, no joint instability, and no evidence or history of recurrent dislocation/subluxation. The Veteran constantly wore a right knee brace. X-rays showed traumatic arthritis or moderate degenerative disc disease of the right knee. The diagnosis was moderate degenerative joint disease of the right knee. On VA outpatient treatment in December 2014, the Veteran’s complaints included aching knees. Physical examination showed knees with hypertrophic changes and pain on flexion/extension, a normal range of motion in both knees, no subluxation or dislocation, and symmetrical extremity strength without muscle atrophy. The diagnoses included bilateral knee pain, right greater than left. Despite the Veteran’s assertions and Board hearing testimony to the contrary, the record evidence shows that, prior to March 15, 2018, his service-connected degenerative joint disease of the right knee is manifested by, at worst, x-ray evidence of arthritis (as seen on VA examination in October 2012). The Veteran denied experiencing flare-ups of right knee pain on VA examination in October 2012 and had an almost full range of motion on flexion (130 degrees out of a possible 140 degrees), no limitation of extension, and no additional limitation of motion on repetitive testing. Although his right knee showed weakened movement, pain on movement, tenderness to palpation, and 4/5 muscle strength, there was no joint instability and no evidence or history of recurrent dislocation/subluxation. X-rays showed traumatic arthritis. Subsequent VA outpatient treatment in December 2014 again documented the Veteran’s complaints of right knee pain. All of this evidence supports the assignment of an initial 10 percent rating prior to March 15, 2018, for the Veteran’s service-connected degenerative joint disease of the right knee under DC 5010-5261. See 38 C.F.R. § 4.71a, DC 5010-5261 (2018). There is no indication of x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups (i.e., a 20 percent rating under DC 5010) or right knee extension limited to 15 degrees (i.e., a 20 percent under DC 5261) such that an initial rating greater than 10 percent is warranted prior to March 15, 2018, for the Veteran’s service-connected degenerative joint disease of the right knee under DC 5010-5261. Id. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to a higher initial rating prior to March 15, 2018, for this disability. In summary, the Board finds that the criteria for an initial rating greater than 10 percent prior to March 15, 2018, for degenerative joint disease of the right knee have not been met. In contrast, the record evidence supports assigning a higher initial 20 percent rating effective March 15, 2018, for degenerative joint disease of the right knee under DC 5258. See 38 C.F.R. § 4.71a, DC 5258 (2018). VA examination on March 15, 2018, documented – for the first time – that the Veteran experienced recurrent effusion in to the right knee joint with swelling 2-3 times per month as a result of his service-connected degenerative joint disease of the right knee. This examination also showed that the Veteran complained of chronic right knee pain with flare-ups which he rated as 6-8/10 on a pain scale (with 10/10 being the worst imaginable pain). He described his flare-ups of right knee pain as the knee “catches and sharp pain goes through it.” He also experienced functional impairment or functional loss of his right knee which he described as an inability to squat or play with his grandson. Range of motion testing of the right knee showed flexion to 68 degrees with functional loss manifested by limited lifting, carrying, standing, walking, and kneeling. The VA examiner stated that repetitive range of motion testing of the right knee could not be performed due to pain. Physical examination of the right knee showed pain with weight bearing, tenderness to palpation of the knee joint, objective evidence of crepitus, 5/5 muscle strength, no muscle atrophy, no history of recurrent subluxation or lateral instability, a reported history of recurrent effusion with swelling 2-3 times per month, 1+ joint instability, and shin splints. The Veteran regularly used a knee brace. X-rays showed traumatic arthritis. The VA examiner stated that active and passive range of motion testing on weight bearing could not be performed “due to safety precautions and risk of falling.” Passive range of motion testing of the right knee showed 75 degrees of flexion and 0 degrees of extension. “All maneuvers were painful.” The diagnosis was degenerative joint disease of the right knee. The record evidence shows that, effective March 15, 2018, the Veteran’s service-connected degenerative joint disease of the right knee is manifested by, at worst, frequent episodes of recurrent effusion into the knee joint. A history of recurrent effusion in to the right knee joint (described as swelling 2-3 times per month) was noted on VA examination on March 15, 2018. This physical examination finding supports the assignment of a higher initial 20 percent rating under DC 5258. See 38 C.F.R. § 4.71a, DC 5258 (2018). The Board notes that a 20 percent rating is the maximum rating available under DC 5258. Id. There is no indication that the Veteran experiences additional disability due to his service-connected degenerative joint disease of the right knee such that a potentially higher initial rating under a different applicable DC is warranted effective March 15, 2018. In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for an initial 20 percent rating effective March 15, 2018, for degenerative joint disease of the right knee have been met. See also 38 C.F.R. § 3.102 (2018). 3. Entitlement to an initial rating greater than 10 percent prior to June 6, 2017, and greater than 20 percent thereafter, for a low back disability The Board next finds that the evidence supports assigning a higher initial 40 percent rating effective June 6, 2017, for a low back disability. Consistent with the Veteran’s lay assertions and Board hearing testimony, the record evidence shows that, effective June 6, 2017, his service-connected low back disability is manifested by, at worst, forward flexion of the thoracolumbar spine to 31 degrees with pain on passive range of motion testing (i.e., a 40 percent rating under DC 5010-5242). See 38 C.F.R. § 4.71a, DC 5010-5242 (2018). Prior to June 6, 2017, the record evidence shows that the Veteran’s service-connected low back disability is manifested by, at worst, forward flexion to 70 degrees with pain (i.e., a 10 percent rating under DC 5010-5242). Id. The Veteran has reported injuring his back during active service as a result of in-service parachute jumps. Although his available service treatment records show no complaints of or treatment for a low back disability, his DD Form 214 shows that he earned the Parachute Badge during active service. Thus, the Board finds his lay statements and hearing testimony concerning an in-service low back injury to be credible because they are consistent with the facts and circumstances of his active service. The post-service evidence does not support granting an initial rating greater than 10 percent prior to June 6, 2017, for the Veteran’s service-connected low back disability. It shows instead that this disability is manifested by, at worst, forward flexion to 70 degrees with pain throughout this time period. For example, on VA back (thoracolumbar spine) conditions DBQ in October 2012, his complaints included occasional low back pain which radiates in to the bilateral legs. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. A history of low back fusion surgery was noted. The Veteran denied experiencing any flare-ups of low back pain. Range of motion testing of the lumbosacral spine showed flexion to 90 degrees with objective evidence of painful motion beginning at 70 degrees, full extension without pain, lateral flexion to 30 degrees with objective evidence of painful motion beginning at 10 degrees in each direction, and lateral rotation to 30 degrees with objective evidence of painful motion beginning at 10 degrees in each direction. There was no additional limitation of motion on repetitive testing. The Veteran experienced functional loss or functional impairment of the lumbosacral spine due to less movement than normal, weakened movement, excess fatigability, and pain on movement. Physical examination of the lumbosacral spine showed tenderness to palpation, guarding or muscle spasm not resulting in an abnormal gait or abnormal spinal contour, 4/5 muscle strength on the right, 5/5 muscle strength on the left, no muscle atrophy, hypoactive reflexes throughout, normal sensation throughout, negative straight leg raising bilaterally, and intervertebral disc syndrome without incapacitating episodes. X-rays showed arthritis. A computerized tomography (CT) scan of the lumbosacral spine showed no acute abnormality, post-surgical changes, and moderate to severe degenerative changes. The diagnoses included severe degenerative changes, status-post low back fusion, and degenerative changes of the thoracic spine. Contrary to the Veteran’s lay assertions and hearing testimony, the record evidence shows that, prior to June 6, 2017, his service-connected low back disability is manifested by, at worst, forward flexion to 70 degrees with pain. This physical examination finding on VA back conditions DBQ in October 2012 supports the assignment of an initial 10 percent rating prior to June 6, 2017, for the Veteran’s service-connected low back disability under DC 5010-5242. Id. There is no indication that, prior to June 6, 2017, the Veteran experienced forward flexion to 60 degrees or less or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour or ankylosis of the thoracolumbar spine or the entire spine (whether favorable or unfavorable) such that an initial rating greater than 10 percent is warranted for this time period. Id. VA examination in October 2012 found that, although muscle spasm or guarding was present, it did not result in an abnormal gait or abnormal spinal contour. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 10 percent prior to June 6, 2017, for his service-connected low back disability. Thus, the Board finds that the criteria for an initial rating greater than 10 percent prior to June 6, 2017, for a low back disability have not been met. In contrast, the record evidence supports assigning a higher initial 40 percent rating effective June 6, 2017, for the Veteran’s low back disability. He testified credibly at his June 6, 2017, Board hearing that the symptomatology attributable to his service-connected low back disability had worsened since his most recent VA examination in October 2012. See Board hearing transcript dated June 6, 2017, at pp. 7. His hearing testimony is consistent with the findings at VA back (thoracolumbar spine) conditions DBQ on March 15, 2018, conducted less than 1 year later, which showed that the symptomatology attributable to his service-connected low back disability had worsened. At this examination, the Veteran’s complaints included back pain which he rated as 6-10/10 (with 10/10 being the worst imaginable pain) “during a flare-up but significantly improves following trigger point injections.” The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. He reported flare-ups of pain where he was unable to get out of bed. “Sometimes sharp pain goes through it. Sometimes it feels numb.” The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. Range of motion testing showed flexion to 51 degrees which contributed to functional loss manifested by limited lifting, carrying, standing, walking, and bending. The VA examiner was unable to perform repetitive range of motion testing or straight leg raising tests due to pain. Physical examination showed pain on weight bearing, tenderness to palpation of the lower lumbar spine, 5/5 muscle strength throughout, no muscle atrophy, normal reflexes and sensation throughout, no ankylosis, and intervertebral disc syndrome without incapacitating episodes. The Veteran regularly used a back brace. X-rays showed arthritis. Active range of motion testing on non-weight bearing showed flexion to 58 degrees. Passive range of motion testing on weight bearing showed flexion to 42 degrees. Passive range of motion testing on non-weight bearing showed flexion to 31 degrees. “All maneuvers were painful.” There was pain on passive range of motion testing and when the joint is used in non-weight bearing. The diagnoses were spinal fusion and degenerative changes, status-post low back fusion. Consistent with the Veteran’s lay assertions and Board hearing testimony, the record evidence shows that, effective June 6, 2017, his service-connected low back disability is manifested by, at worst, flexion to 31 degrees with pain. The Veteran testified credibly on June 6, 2017, that the symptomatology attributable to his service-connected low back disability had worsened. His testimony is consistent with physical examination findings on subsequent VA back conditions DBQ in March 2018 which showed flexion limited to 31 degrees on non-weight bearing with pain. The Veteran also reported experiencing flare-ups of low back pain where he was unable to get out of bed. Physical examination also showed pain on weight bearing and tenderness to palpation of the lower lumbar spine. The Veteran’s hearing testimony and the subsequent physical examination results, dated less than 1 year after his hearing testimony, support the assignment of an initial 40 percent rating effective June 6, 2017 (the date of his hearing when he reported that his symptoms had worsened), under DC 5010-5242. See 38 C.F.R. § 4.71a, DC 5010-5242 (2018). There is no indication that, effective June 6, 2017, the Veteran experienced unfavorable ankylosis of the entire thoracolumbar spine or the entire spine (i.e., a 50 or 100 percent rating under DC 5242) such that an initial rating greater than 40 percent is warranted for this time period. Id. VA examination in March 2018 specifically found no ankylosis present in the Veteran’s spine. In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for an initial 40 percent rating effective June 6, 2017, for a low back disability have been met. See also 38 C.F.R. § 3.102 (2018). 4. Entitlement to an initial rating greater than 10 percent prior to May 23, 2016, and greater than 20 percent thereafter, for degenerative joint disease of the right shoulder The Board next finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to an initial rating greater than 10 percent prior to May 23, 2016, and greater than 20 percent thereafter, for degenerative joint disease of the right shoulder. Contrary to the Veteran’s lay assertions and Board hearing testimony, the record evidence shows that his service-connected degenerative joint disease of the right shoulder is not more disabling than currently (and initially) evaluated at any time during the appeal period. The Veteran has reported injuring his right shoulder during active service as a result of in-service parachute jumps. Although his available service treatment records show no complaints of or treatment for a right shoulder disability, his DD Form 214 shows that he earned the Parachute Badge during active service. Thus, the Board finds his lay statements and hearing testimony concerning an in-service right shoulder injury to be credible because they are consistent with the facts and circumstances of his active service. The post-service evidence also does not support granting an initial rating greater than 10 percent prior to May 23, 2016, and greater than 20 percent thereafter, for degenerative joint disease of the right shoulder. It shows instead that, prior to May 23, 2016, this disability is manifested by, at worst, complaints of pain, abduction to 110 degrees, and x-ray evidence of arthritis. For example, following VA magnetic resonance imaging (MRI) scan of the right shoulder in September 2000, the radiologist’s impressions were impingement syndrome with evidence of pinhole-type perforation of the supraspinatus tendon, biceps tendinitis, and probable pseudo arthritis in the distal aspect of the acromion process. Right shoulder x-rays showed hypertrophic change of the acromioclavicular joint, slight focal osteophyte along the inferior margin of the humeral head, and soft tissues within normal limits. On VA shoulder and arm conditions DBQ in October 2012, the Veteran’s complaints included constant right shoulder pain “made worse with range of motion.” The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. An in-service right shoulder injury following a parachute jump was reported. The Veteran was right-hand dominant. He denied experiencing flare-ups of right shoulder pain. Range of motion testing of the right shoulder showed flexion to 180 degrees with objective evidence of painful motion beginning at 180 degrees and abduction to 180 degrees with objective evidence of painful motion beginning at 180 degrees. There was no additional limitation of motion on repetitive testing. Physical examination of the right shoulder showed functional loss or functional impairment due to weakened movement and pain on movement, tenderness to palpation, no guarding, 4/5 muscle strength, no ankylosis, positive Hawkins impingement test, positive empty-can test, positive external rotation/infraspinatus test, positive lift-off subscapularis test, no history of recurrent dislocation or subluxation, negative crank apprehension test, no tenderness to palpation of the acromioclavicular joint, and positive cross-body adduction test. X-rays showed arthritis. The diagnosis was degenerative joint disease of the right shoulder. On VA outpatient treatment in August 2013, the Veteran’s complaints included “bilateral shoulder pain” which he rated as 7/10 on a pain scale. Range of motion testing of the right shoulder showed abduction to 110 degrees “after repeated attempts with associated discomfort.” The diagnosis included chronic right shoulder pain/degenerative joint disease of glenohumeral joint. On VA shoulder and arm conditions DBQ in February 2015, the Veteran’s complaints included right shoulder pain which he rated as 7-8/10 on a pain scale. A history of bilateral shoulder pain, right greater than left, was noted. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran was right-hand dominant. He denied experiencing any flare-ups of shoulder pain. Range of motion testing was normal with pain reported but not causing functional loss. There was no additional limitation of motion on repetitive testing. There was no evidence of pain with weight bearing. Physical examination of the right shoulder showed tenderness to palpation on the anterior shoulder, 5/5 muscle strength, no muscle atrophy or ankylosis, and no rotator cuff condition, shoulder instability, or dislocation. X-rays showed arthritis. Contrary to the Veteran’s lay assertions and Board hearing testimony, the record evidence shows that, prior to May 23, 2016, his service-connected degenerative joint disease of the right shoulder is manifested by, at worst, complaints of pain, abduction to 110 degrees, and x-ray evidence of arthritis. X-rays of the right shoulder taken during this time period consistently showed the presence of arthritis. Although right shoulder abduction was limited to 110 degrees “after repeated attempts with associated discomfort” on VA outpatient treatment in August 2013, VA examinations in October 2012 and in February 2015 both showed a full range of motion to 180 degrees in the Veteran’s right shoulder with pain and without any additional limitation of motion on repetitive testing. The August 2013 VA clinician did not explain this apparent discrepancy in range of motion testing of the Veteran’s right shoulder. These findings support the assignment of an initial 10 percent rating prior to May 23, 2016, for the Veteran’s service-connected degenerative joint disease of the right shoulder under DC 5003-5201. See 38 C.F.R. § 4.71a, DC 5003-5201 (2018). The Board notes that, because the Veteran is right-hand dominant, his service-connected right shoulder is considered his major (or dominant) shoulder. There is no x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups as is required for a 20 percent rating under DC 5003. There also is no indication that the Veteran experiences limitation of motion of the right arm at the shoulder level as is required for a minimum 20 percent rating under DC 5201. As noted, the Veteran’s right shoulder abduction was limited to, at worst, 110 degrees with pain on VA outpatient treatment in August 2013. Otherwise, he had a full range of motion in the right shoulder with pain during this time period. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 10 percent prior to May 23, 2016, for his service-connected degenerative joint disease of the right shoulder. Accordingly, the Board finds that the criteria for an initial rating greater than 10 percent prior to May 23, 2016, for degenerative joint disease of the right shoulder have not been met. The Veteran also is not entitled to an initial rating greater than 20 percent effective May 23, 2016, for degenerative joint disease of the right shoulder. Contrary to his lay assertions and Board hearing testimony, the record evidence shows that this disability is manifested by, at worst, flexion to 76 degrees on passive range of motion testing with pain during this time period. For example, the Veteran’s VA outpatient treatment records dated since May 23, 2016, show that he received multiple steroid injections in to his right shoulder to relieve chronic pain. On VA shoulder and arm conditions DBQ in March 2018, the Veteran’s complaints included neck pain which radiated down in to his right shoulder and worsened with “strenuous activity and lifting.” The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran experienced some pain relief from “trigger point” injections in his right shoulder. He rated his right shoulder pain as 6/10 on a pain scale. He denied experiencing flare-ups of right shoulder pain. He stated, “Without the shots, everything would be difficult[]: driving, making up the bed, trying to cook, planting in the yard.” Range of motion testing of the right shoulder showed flexion to 77 degrees with functional loss manifested by limited lifting, carrying, standing, walking, and reaching. Physical examination of the right shoulder showed pain with weight bearing, tenderness to palpation of the shoulder joint, 5/5 muscle strength, no muscle atrophy, and a suspected rotator cuff condition. X-rays showed arthritis. The VA examiner was unable to perform repetitive range of motion testing or assess whether crepitus was present in the Veteran’s right shoulder due to pain. Active range of motion testing of the right shoulder in non-weight bearing showed flexion to 110 degrees. Passive range of motion testing of the right shoulder in weight bearing showed flexion to 76 degrees. Passive range of motion testing of the right shoulder in non-weight bearing showed flexion to 87 degrees. “All maneuvers were painful.” There was evidence of pain on passive range of motion testing and when the right shoulder joint was used in non-weight bearing. The diagnosis was degenerative arthritis of the right shoulder. Contrary to the Veteran’s lay assertions and Board hearing testimony, the record evidence dated since May 23, 2016, shows that his service-connected degenerative joint disease of the right shoulder is manifested by, at worst, flexion to 76 degrees on passive range of motion testing with pain during this time period. The Board acknowledges that the evidence dated since May 23, 2016, shows that the symptomatology attributable to the Veteran’s service-connected degenerative joint disease of the right shoulder worsened and is manifested by limitation of motion of the right arm at the shoulder level (i.e., a 20 percent rating under DC 5003-5201). Id. There is no indication that, since May 23, 2016, the Veteran experiences limitation of motion of the right arm midway between the side and shoulder level or to 25 degrees from the side (i.e., a 30 or 40 percent rating) as is required for an initial rating greater than 20 percent under DC 5003-5201. Id. The Board recognizes that the Veteran’s right shoulder had limitation of motion in all planes on VA examination in March 2018 although none of this testing showed that his range of motion was less than 76 degrees of flexion. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 20 percent effective May 23, 2016, for his service-connected degenerative joint disease of the right shoulder. Thus, the Board finds that the criteria for an initial rating greater than 20 percent effective May 23, 2016, for degenerative joint disease of the right shoulder have not been met. 5. Entitlement to an initial rating greater than 10 percent prior to June 6, 2017, and greater than 20 percent thereafter, for degenerative disc disease of the cervical spine The Board finally finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to an initial rating greater than 10 percent prior to June 6, 2017, and greater than 20 percent thereafter, for degenerative disc disease of the cervical spine. Contrary to the Veteran’s lay assertions and Board hearing testimony, the record evidence shows that his service-connected degenerative disc disease of the cervical spine is not more disabling than currently (and initially) evaluated at any time during the appeal period. The Board notes initially that the Veteran’s available service treatment records show no complaints of or treatment for a cervical spine disability during active service. The post-service evidence also does not support granting an initial rating greater than 10 percent prior to June 6, 2017, and greater than 20 percent thereafter, for degenerative disc disease of the cervical spine. It shows instead that, prior to June 6, 2017, this disability is manifested by, at worst, complaints of pain and x ray evidence of arthritis. For example, VA MRI scan of the Veteran’s cervical spine taken in August 2001 showed degenerative disc disease at C5-7 with disc bulge/osteophyte complex without significant spinal canal stenosis and a normal spinal cord. On VA neck (cervical spine) conditions DBQ in October 2012, the Veteran’s complaints included “constant pain to [the] cervical spine with radicular pain that runs down to the right shoulder and at times down the right arm[].” The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran denied experiencing flare-ups of neck pain. Range of motion testing of the cervical spine showed forward flexion to 45 degrees with objective evidence of painful motion beginning at 45 degrees, extension to 45 degrees with objective evidence of painful motion beginning at 45 degrees, lateral flexion to 45 degrees with objective evidence of painful motion beginning at 45 degrees in each direction, and lateral rotation to 80 degrees with objective evidence of painful motion beginning at 80 degrees in each direction. There was no additional limitation of motion following repetitive testing. Physical examination showed functional loss or functional impairment due to pain on movement, tenderness to palpation, no muscle spasm or guarding, 5/5 muscle strength, no muscle atrophy, normal deep tendon reflexes and sensation, and intervertebral disc syndrome without incapacitating episodes. X-rays showed degenerative disc disease at C5-7 “with a disk osteophyte complex seen at these levels,” small hypertrophic osteophyte at C4, slight reversal of the normal lordotic curvature suggesting a soft tissue injury, and bilateral foramen narrowing. The diagnoses included degenerative disc disease of the cervical spine. VA MRI scan of the Veteran’s cervical spine taken in June 2013 showed disc bulges at C4-C7 and C7-T1 facet arthropathy with neuroforaminal narrowing. On VA outpatient treatment in August 2013, the Veteran’s complaints included “neck pain radiating down his right upper extremity” which he rated as 7/10 on a pain scale. He denied experiencing any bowel or bladder incontinence. Physical examination showed cervical paraspinal tenderness, muscle spasm, limited range of motion in the cervical spine, and a normal gait. The diagnoses included neck pain/multilevel degenerative disc disease and C4-C7 stenosis. In December 2014, the Veteran’s complaints included cervical radiculopathy. Physical examination showed a supple neck and a limited range of motion in the neck “due to flashes of pain.” The diagnoses included cervical radiculopathy. VA x-rays of the Veteran’s cervical spine taken in February 2016 showed slightly worsening slight reversal of the normal cervical lordosis “centered at C5-C6,” grade I anterolisthesis of C4 “related to C5 has worsened slightly,” marked disc space narrowing at C5-C7, and bilateral neural foraminal narrowing. VA MRI scan of the Veteran’s cervical spine taken in March 2016 showed degenerative disc disease and facet disease of the cervical spine “including several foci of moderate spinal stenosis with cord entrapment and mild contour deformity on the ventral cord, without findings of cord compression or cord signal change,” and multifocal foraminal narrowing which “likely affects multiple cervical nerve roots.” There was no “high-grade spinal stenosis and no findings of cord compression or cord signal change.” Contrary to the lay assertions and Board hearing testimony, the record evidence shows that, prior to June 6, 2017, the Veteran’s service-connected degenerative disc disease of the cervical spine is manifested by, at worst, complaints of pain and x-ray evidence of arthritis. Multiple x-rays and MRI scans of the Veteran’s cervical spine taken prior to June 6, 2017, documented the presence of arthritis in multiple spinal discs. The Veteran also complained of cervical (or neck) pain consistently to his VA treating providers during this time period. The findings of arthritis and complaints of pain support the assignment of an initial 10 percent rating prior to June 6, 2017, for the Veteran’s service-connected degenerative disc disease of the cervical spine under DC 5010-5242. See 38 C.F.R. § 4.71a, DC 5010-5242 (2018). There is no indication that, prior to June 6, 2017, the Veteran experienced at least flexion of the cervical spine to 30 degrees or less or ankylosis (whether favorable or unfavorable) of the cervical spine or the entire spine (i.e., a 20, 30, 40, or 100 percent rating) such that an initial rating greater than 10 percent is warranted during this time period. Id. VA examination in October 2012 specifically found that cervical spine flexion was to 45 degrees (of a total possible 45 degrees) with pain and no additional limitation of motion on repetitive testing. Although slight reversal of the normal cervical lordosis was noted on x-rays and MRI scans conducted prior to June 6, 2017, no muscle spasm or guarding was noted on VA examinations or outpatient treatment visits during this time period. The Board further acknowledges that, although VA examination in October 2012 documented the presence of radiculopathy of the bilateral upper extremities due to his service-connected degenerative disc disease of the cervical spine, service connection and a separate compensable rating already are in effect for radiculopathy. Thus, the findings of radiculopathy on VA examination in October 2012 cannot support assigning a higher initial rating for the Veteran’s service-connected degenerative disc disease of the cervical spine without violating the express prohibition against pyramiding. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 10 percent prior to June 6, 2017, for his service-connected degenerative disc disease of the cervical spine. Accordingly, the Board finds that the criteria for an initial rating greater than 10 percent prior to June 6, 2017, for degenerative disc disease of the cervical spine have not been met. The Veteran also is not entitled to an initial rating greater than 20 percent effective June 6, 2017, for degenerative disc disease of the cervical spine. Contrary to his lay assertions and Board hearing testimony, the record evidence shows that this disability is manifested by, at worst, flexion to 32 degrees on active range of motion in non-weight bearing with pain. The Board observes initially that the Veteran testified credibly at his June 6, 2017, Board hearing that the symptomatology attributable to his service-connected degenerative disc disease of the cervical spine had worsened since his most recent VA examination in October 2012. See Board hearing transcript dated June 6, 2017, at pp. 11. His hearing testimony is consistent with the findings at VA neck (cervical spine) conditions DBQ on March 15, 2018, conducted less than 1 year later, which showed that the symptomatology attributable to his service-connected degenerative disc disease of the cervical spine had worsened. For example, at this examination, the Veteran’s complaints included worsening neck pain with rotation of the neck and head and neck pain radiating to both shoulders. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran rated his neck pain as 7/10 on a pain scale and as 10/10 during flare-ups of neck pain. He described his flare-ups of neck pain as sharp and “sometimes dull” pain “pulsating in [the] upper back.” He experienced functional loss or functional impairment of the cervical spine which he described as being unable to get out of bed. Range of motion testing of the cervical spine showed forward flexion to 45 degrees with pain. The VA examiner stated that pain prevented repetitive range of motion testing. Physical examination of the cervical spine showed pain on weight bearing, tenderness to palpation, no guarding or muscle spasm, 5/5 muscle strength, no muscle atrophy, normal reflexes and sensation, no ankylosis, no other neurologic abnormalities, and intervertebral disc syndrome without incapacitating episodes. Active range of motion on non-weight bearing showed flexion to 32 degrees. Passive range of motion on weight bearing showed flexion to 52 degrees. Passive range of motion on non-weight bearing showed flexion to 45 degrees. “All maneuvers were painful.” There was evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing. The diagnoses included degenerative disc disease of the cervical spine. Contrary to the Veteran’s lay assertions and Board hearing testimony, the record evidence dated since June 6, 2017, shows that his service-connected degenerative disc disease of the cervical spine is manifested by, at worst, flexion to 32 degrees on active range of motion in non-weight bearing with pain during this time period. The Board acknowledges that the evidence dated since June 6, 2017, shows that the symptomatology attributable to the Veteran’s service-connected degenerative joint disease of the right shoulder worsened and is manifested by, at worst, flexion to 32 degrees on active range of motion in non-weight bearing with pain (i.e., a 20 percent rating under DC 5010-5242). See 38 C.F.R. § 4.71a, DC 5010-5242 (2018). The Veteran again testified credibly that his service-connected degenerative disc disease of the cervical spine had worsened at his June 6, 2017, Board hearing. And his testimony is supported by the physical examination findings obtained on VA neck conditions DBQ in March 2018, less than 1 year after his hearing. At this examination, active range of motion on non-weight bearing showed flexion to 32 degrees which was painful. The Veteran also was unable to perform repetitive range of motion testing due to neck pain. There further was evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing. There is no indication that, effective June 6, 2017, the Veteran experienced cervical spine flexion to 15 degrees or less or unfavorable ankylosis of the entire cervical spine or the entire spine (i.e., a 40, 50, or 100 percent rating under DC 5010-5242) such that an initial rating greater than 20 percent is warranted for his service-connected degenerative disc disease of the cervical spine during this time period. Id. No ankylosis of the cervical spine was noted on VA examination in March 2018. The Board further acknowledges that, although VA examination in March 2018 again documented the presence of radiculopathy of the bilateral upper extremities due to his service-connected degenerative disc disease of the cervical spine, service connection and a separate compensable rating already are in effect for radiculopathy. Thus, the findings of radiculopathy on VA examination in March 2018 also cannot support assigning a higher initial rating for the Veteran’s service-connected degenerative disc disease of the cervical spine without violating the express prohibition against pyramiding. The Veteran finally has not identified or submitted any evidence demonstrating entitlement to an initial rating greater than 20 percent effective June 6, 2017, for his service-connected degenerative disc disease of the cervical spine. Accordingly, the Board finds that the criteria for an initial rating greater than 20 percent effective June 6, 2017, for degenerative disc disease of the cervical spine have not been met. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.