Citation Nr: 20060489 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 15-23 271A DATE: September 15, 2020 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to service-connected mood disorder and sinusitis with headaches is granted. Restoration of the 20 percent rating for service-connected lumbar spine strain, effective on November 28, 2016 is granted. Entitlement to increased ratings for right shoulder strain, rated as 20 percent prior to July 17, 2019, and 30 percent thereafter is denied. Entitlement to increased ratings for lumbar spine strain with arthritis, rated as 20 percent prior to July 17, 2019, and 40 percent thereafter is denied. Entitlement to an increased rating in excess of 30 percent for sinusitis with headaches is denied. Entitlement to a rating in excess of 50 percent for mood disorder is denied. REMANDED Entitlement to a separate compensable rating for right lower extremity radiculopathy is remanded. Entitlement to a separate compensable rating for left lower extremity radiculopathy is remanded. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected lumbar strain is remanded. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected lumbar spine strain is remanded. FINDINGS OF FACT 1. The Veteran’s obstructive sleep apnea is secondary to service-connected mood disorder and sinusitis with headaches. 2. Sustained improvement of the Veteran’s low back disability has not been demonstrated. 3. Prior to July 17, 2019, the Veteran’s right shoulder strain is manifested by 130 degrees of the major extremity. 4. From July 17, 2019, the Veteran’s right shoulder strain is manifested by 30 degrees of the major extremity. 5. Prior to July 17, 2019, the Veteran’s lumbar spine strain with arthritis is manifested by 80 degrees on forward flexion. 6. From July 17, 2019, the Veteran’s lumbar spine strain with arthritis is manifested by 5 degrees on forward flexion. 7. The Veteran’s sinusitis has not been manifested by radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 8. The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea as secondary to service-connected mood disorder and sinusitis with headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The reduction of the disability rating for lumbar spine strain with arthritis from 20 percent to 10 percent, effective November 28, 2016, was not proper; restoration of a 20 percent rating from November 28, 2016 is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.10, Diagnostic Code 5242. 3. The criteria for entitlement to increased ratings for right shoulder strain, rated as 20 percent prior to July 17, 2019, and 30 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 4. The criteria for entitlement to increased ratings for lumbar spine strain with arthritis, rated as 20 percent prior to July 17, 2019, and 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 5. The criteria for entitlement to an increased rating in excess of 30 percent for sinusitis with headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6510. 6. The criteria for entitlement to a rating in excess of 50 percent for mood disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1983 to December 1983 and the United States Navy from February 1988 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision granting service-connection for right shoulder strain, assigning a 10 percent rating, granting service-connection for lumbar spine strain with arthritis, assigning a 20 percent rating, granting service-connection for mood disorder, assigning a 10 percent rating, and denying service connection for bilateral hip disorder and sleep apnea; and a November 2014 rating decision denying a compensable rating for sinusitis with headaches. The Veteran did not request a Board hearing. In August 2018, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected mood disorder and sinusitis with headaches The Veteran contends that her obstructive sleep apnea is due to her service-connected mood disorder and sinusitis with headaches. Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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) (2018). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The February 2011 VA examination report shows the Veteran has a current disability of obstructive sleep apnea, and a May 2018 private examiner opined that it is at least as likely as not proximately due to or the result of/aggravated beyond its natural progress by her service-connected mood disorder and sinusitis with headaches. The examiner reasoned that the Veteran is unable to use her CPAP mask at all due to mental health and sinus symptoms. The Veteran’s depression and anxiety bother the Veteran, and the CPAP mask makes her feel trapped and she cannot tolerate it. When the Veteran’s nasal congestion due to sinusitis is significant, the CPAP mask caused the Veteran to feel claustrophobic like she is suffocating. The examiner stated this is a common problem for patients who have mental problems, sinus problems, and sleep apnea. The examiner cited a medical study regarding the association of psychiatric disorders and sleep apnea as part of her reasoning. Conversely, the July 2019 VA examiner opined the Veteran’s obstructive sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner reasoned that other than the Veteran’s statements, the examiner was unable to detect clinical findings consistent with sleep apnea, although this is well documented in the Veteran’s records. The examiner further stated the review of records do not show treatment with a CPAP machine being followed up by the pulmonary clinic at the VA Hospital Memphis. The examiner was unable to clinically relate a diagnosis of mood disorder during service, or related mood disorder or sinusitis, or a service-connected disability diagnosis, or the Veteran’s service to sleep apnea. The July 2019 VA examiner further opined the Veteran’s obstructive sleep apnea is less likely than not permanently aggravated beyond the normal course of the condition by a service-connected disability including mood disorder and sinusitis. The examiner was unable to correlate a mood disorder with prominent aggravation of sleep apnea. VA treatment records clearly show that the Veteran is diagnosed with obstructive sleep apnea. Indeed, an October 2019 record shows that the Veteran brought in her CPAP machine and indicated that she did not want a new one. She maintained that she last used the machine in 2011. She was also counseled on other options to CPAP therapy. A December 2011 record showed the Veteran had poor compliance with her CPAP machine. The Board finds the July 2019 VA opinion is of no probative value. Upon further consideration of the Veteran’s claim, the Board finds that the May 2018 private opinion is persuasive and consequently sufficient to substantiate the Veteran’s claim. Accordingly, the Board finds that service connection for obstructive sleep apnea as secondary to service-connected mood disorder and sinusitis with headaches is warranted. 2. Propriety of rating reduction of the Veteran’s service-connected lumbar spine strain with arthritis from 20 percent to 10 percent Congress has provided that a veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When the agency of original jurisdiction (AOJ) reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). For reductions in ratings to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In this case, based on a November 2016 VA examination, the RO, in the September 2017 rating decision, reduced the rating for the Veteran’s service-connected lumbar spine strain with arthritis from 20 percent to 10 percent, effective November 28, 2016. The Veteran filed a claim for an increased rating for service-connected lumbar spine strain with arthritis in January 2012. A February 2013 VA examiner noted that the Veteran’s lumbar spine strain exhibited forward flexion to 80 degrees with pain. Based on the examination, the RO continued the 20 percent disability rating in the April 2013 rating decision. Following examination of the Veteran’s lumbar spine strain in November 2016, the RO reduced the Veteran’s disability rating for the lumbar spine strain with arthritis, from 20 percent to 10 percent, in a September 2017 rating decision. The cited basis for the reduction was that improvement had been previously shown and the November 2016 VA examination noted sustained improvement in the Veteran’s lumbar spine. Under 38 C.F.R. § 3.105 (e), where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. Id. The Board finds that the procedural requirements of 38 C.F.R. § 3.105 (e) were not applicable here, since the reduction from 20 percent to 10 percent, effective November 28, 2016, for lumbar spine strain with arthritis, did not reduce the total amount of compensation payable when considering all the Veteran’s service-connected disabilities under 38 C.F.R. § 4.25 (combined ratings table). In this regard, the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the amount of compensation payable. The General Counsel reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Therefore, where the evaluation of a specific disability is reduced but the amount of compensation is not reduced, § 3.105(e) is not applicable. See also Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the veteran). In the instant case, January 24, 2012 to the present, the Veteran’s combined evaluation for compensation from all her service-connected disabilities has stayed at 90 percent. Most importantly, effective November 28, 2016, the reduction from 20 percent to 10 percent for lumbar spine strain with arthritis did not lower the Veteran’s combined evaluation for compensation. That is, the Veteran’s combined evaluation for compensation remained at the 90 percent level both before and after the reduction. See September 2017 rating code sheet. As such, the reduction from 20 percent to 10 percent for lumbar spine strain with arthritis, effective November 28, 2016, did not reduce the total amount of compensation payable when considering all the Veteran’s service-connected disabilities under 38 C.F.R. § 4.25 (combined ratings table). The total amount of compensation payable remained at 90 percent. Therefore, since the evaluation of lumbar spine strain with arthritis was reduced, but the total amount of compensation was not reduced, the procedural notice requirements for a reduction under § 3.105(e) are not applicable here. See VAOPGCPREC 71-91 (Nov. 1991). As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). At the time of reduction, the Veteran’s 20 percent disability rating based on lumbar spine disability had been in effect for more than 5 years (from August 1, 2008, to November 28, 2016). See Brown (Kevin) v. Brown, 5 Vet. App. 413, 418 (1993) (the duration of the rating is measured from the effective date assigned the rating until the effective date of the actual reduction and not the date of the RO’s proposal or ordering of a reduction). As regards disability ratings in effect for a period of 5 years or more, the provisions of 38 C.F.R. § 3.344 (a) and (b) are for application. See 38 C.F.R. § 3.344 (c). Where a veteran’s schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344 (a). Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, though material improvement in a mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-82. Care must be taken, however, to ensure that a change in an examiner’s evaluation reflects an actual change in the veteran’s condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). As noted above, as of the effective date of the reduction, the 20 percent rating for lumbar spine strain with arthritis, under Diagnostic Code 5242, had been in effect for more than 5 years; hence, the provisions of 38 C.F.R. § 3.344 (a) and (b) are for application. The record reflects that the RO subsequently increased the Veteran’s disability rating to 40 percent effective July 17, 2019 based on additional VA examination findings. This is post-reduction medical evidence that may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 281-82. The Board finds that sustained improvement of the Veteran’s low back disability has not been demonstrated. Accordingly, the Veteran is entitled to restoration of the 20 percent rating assigned for lumbar spine strain with arthritis effective November 28, 2016. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and 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, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 3. Entitlement to increased ratings for right shoulder strain, rated as 20 percent prior to July 17, 2019, and 30 percent thereafter The Veteran contends that she is entitled to a higher rating because she experiences burning and throbbing pain on a daily basis. The Veteran’s right shoulder strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at the shoulder level (90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder (45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Prior to July 17, 2019 The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right shoulder strain. The evidence of record shows that the Veteran is right-handed. See November 2016 VA examination. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran experiences pain with overhead movement, and burning and throbbing pain would not result in limitation of motion of the arm midway between the side and shoulder level of the major extremity. The February 2013 VA examination found the Veteran’s initial right shoulder flexion was to 130 degrees, abduction was to 130 degrees, and pain was found on flexion and abduction ranges of motion. Range of motion testing for repetitive use testing remained the same as initial range of motion. Contributing factors of loss included less movement than normal and pain on movement. The Veteran complained of flare-ups of pain with overhead motion. This is consistent with motion limited to the shoulder level. A February 2016 VA treatment record showed the Veteran had good range of motion and pain with movement. The November 2016 VA examination found the Veteran’s initial right shoulder flexion was to 160 degrees, abduction was to 140 degrees, and pain was found on flexion and abduction ranges of motion. Pain did not result in or cause functional loss. Range of motion testing for repetitive use testing remained the same as initial range of motion. The examiner indicated that there was no additional functional loss during flare-ups. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The evidence of record shows there is no impairment of the humerus, malunion of marked deformity of the humerus, or ankylosis of the scapulohumeral articulation. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for right shoulder strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From July 17, 2019 The Veteran contends that she is entitled to a higher rating because she experiences severe flare ups. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for right shoulder strain. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran experiences severe pain lasting for two weeks would not result in limitation of motion of the arm to 25 degrees from the side of the major extremity. The July 2019 VA examination found the Veteran’s initial right shoulder flexion was to 80 degrees, abduction was to 90 degrees, and pain was found on flexion and abduction ranges of motion. Pain causes functional loss. Range of motion testing for repetitive use testing remained the same as initial range of motion. The examiner opined the Veteran’s repetitive use over time and flare-up ranges of motion of flexion and abduction are each to 30 degrees. While the Veteran states that she is unable to lift her shoulder more than 10 degrees, this is contrary to the examination results. See July 2019 VA examination. In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran is competent to provide evidence about what she observes or experiences; however, the Veteran’s belief that her range of motion is no more than 10 degrees is outweighed by the objective clinical findings. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the VA examination findings regarding the type and degree of impairment. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The evidence of record shows there is no impairment of the humerus, malunion of marked deformity of the humerus, or ankylosis of the scapulohumeral articulation. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 30 percent for right shoulder strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to increased ratings for lumbar spine strain with arthritis, rated as 20 percent prior to July 17, 2019, and 40 percent thereafter The Veteran contends that she is entitled to a higher rating because of pain and difficulty moving. The Veteran’s lumbar spine strain with arthritis (lumbar strain) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Prior to July 17, 2019 The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lumbar strain. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran experiences pain with too much activity, and impairment with prolonged sitting, walking, and standing would not result in limitation of motion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Upon VA examination in February 2013, the Veteran’s forward flexion upon initial range of motion and repetitive motion was to 80 degrees with painful motion. There was no guarding or muscle spasm of the thoracolumbar spine. These findings do not persuasively show that the Veteran’s back disability during flare-ups was akin to an individual who chronically experiences symptomatology associated with the next higher rating. A February 2015 VA treatment note reflects the Veteran had limited extension and no signs or symptoms of radiculopathy. Upon VA examination in November 2016, the Veteran’s forward flexion upon initial range of motion was to 80 degrees with pain. There was no additional loss of range of motion upon observed repetitive use. The Veteran related she experienced increased pain and decreased range of motion after repeated use over time and during flare-ups. The Veteran was not able to describe the impairment in terms of range of motion. Again, these findings do not persuasively show that the Veteran’s back disability during flare-ups was akin to an individual who chronically experiences symptomatology associated with the next higher rating. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for lumbar spine strain with arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From July 17, 2019 The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar spine strain with arthritis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements of difficulty moving, and moderate to severe flare-ups lasting a few days occurring one to two times per week would not result in symptoms of unfavorable ankylosis of the entire thoracolumbar spine. Upon VA examination in July 2019, the Veteran’s forward flexion upon initial range of motion was to 40 degrees with pain. The examiner noted significant back stiffness and a slight abnormal posture due to the same. There was no additional loss of range of motion upon observed repetitive use. The examiner estimated the Veteran’s range of motion after repeated use over time was to 30 degrees with pain. The examiner described the Veteran’s range of motion during flare-ups was to 5 degrees with pain. There is no ankylosis. The Veteran is in receipt of the maximum evaluation available for limitation of motion of the spine under the rating schedule. Also, a 40 percent rating is assigned for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating contemplates episodes in which the Veteran believes her disability is so severe that she cannot move her back. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board does not find that the medical evidence and the Veteran’s description of the functional impairment she experiences during such flare-ups demonstrates the level of disability associated with unfavorable ankylosis of the thoracolumbar spine, which is the criteria associated with the next higher rating of 50 percent. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for lumbar spine strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to increased rating in excess of 30 percent for sinusitis with headaches The Veteran contends she is entitled to an increased rating for sinusitis with headaches because she experiences constant headache pain. The Veteran’s service-connected disability, sinusitis with headaches, is rated under DC 6510 for chronic pansinusitis under the General Rating Formula for Sinusitis which provides the following: a 10 percent rating for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; a 30 percent rating for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; and a 50 percent rating, the maximum available, following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. For VA purposes, an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. See 38 C.F.R. § 4.97, DCs 6510 through 6514, Note. An April 2014 VA medical examination report noted the Veteran’s left sided turbinates are enlarged and boggy, and the right side appears normal. Polyps were not noted on either side. The examiner remarked the Veteran has not required the kinds of antibiotics required to carry the diagnosis of chronic sinusitis and a recent CT scan showed the sinuses to be normal. A July 2014 VA medical examination report noted the Veteran with headaches almost exclusively related to sinus complaints. The Veteran reported experiencing constant head pain, localized to one side of the head with changes in vision. Headaches duration was less than one day. Examination of the Veteran’s sinuses showed them to be clear and normal. There was mild left nasal septum deviation but otherwise normal nasal cavity. Upon VA examination in October 2014, the Veteran reported almost daily frontal sinus pressure, nasal congestion with drainage, post-nasal drip with cough, itchy and watery eyes, and blurry vision. The examination report found the Veteran’s sinuses to be clear and normal. There was left nasal septum deviation, but the nasal cavity was normal. A September 2015 treatment note reflects the Veteran reported pressure on the left side of her face. She was treated for acute sinusitis and given treatment for four days. The Veteran was seen in July 2016 for sinus congestion. A CT of her sinuses was normal. A March 2019 VA treatment note shows the Veteran experienced intermittent headaches lasting two to three hours, accompanied by nausea. She also had tenderness along her sinuses on the left. The July 2019 VA examination reported the Veteran experienced prostrating attacks once every month. She had pulsing or throbbing headache pain localized to one side of the head. She also experienced nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and sensory changes. The Veteran has very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. Based on the evidence described, the Board finds that a rating in excess of 30 percent for sinusitis is not warranted. As noted above, in order to warrant a 50 percent rating under DC 6510, there must be radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Here, the evidence reflects the Veteran experiences headaches. She also experiences tenderness along her sinus. She does not experience near constant sinusitis with headaches, pain, and tenderness of affected sinus. Crucially, she has not undergone radical surgery with chronic osteomyelitis or repeated surgeries. Also, importantly, the July 2019 VA examiner recognized that the Veteran has had sinusitis with chronic headaches for many years however was recently evaluated by the neurologist and diagnosed with migraine as well. Service connection is not in effect for migraine headaches. Therefore, entitlement to a rating in excess of 30 percent for sinusitis with headaches is not warranted. 6. Entitlement to a rating in excess of 50 percent for mood disorder The Veteran contends that her mood disorder warrants an increased rating because her symptoms are not reflected by the current 50 percent rating. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. VA and private treatment records, the February 2013, January 2014, and August 2019 VA examinations, and the Veteran’s lay statements note that the Veteran’s mood disorder was manifested by symptoms associated with a 50 percent rating including disturbances in motivation and mood, impaired abstract thinking, difficulty in establishing and maintaining effective work and social relationships, and symptoms associated with a 70 percent rating including difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. She experienced symptoms associated with a 30 percent rating including depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss. She also had symptoms such as crying spells, anger, irritability, problems concentrating, and auditory and visual hallucinations. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. The evidence of record shows the Veteran’s mood ranges from euthymic to depressed and she has a full range of affect. Further, crying spells, anger, irritability, and problems concentrating are similar to disturbances of motivation and mood, impaired thinking, and impairment of short- and long-term memory, which are contemplated by the assigned 50 percent rating. While the Veteran reported to the August 2019 VA examiner that she experiences auditory and visual illusionary experiences, the examiner did not ultimately find that she suffered from a chronic hallucinatory disorder. Importantly, the mere presence of a symptom is not the determining factor of the assignment of a rating. It is the impact that the symptom has on the individual's functioning that decides the appropriate rating. There is no persuasive evidence that the Veteran’s functioning is impacted by the claimed symptom to a degree contemplated by a 70 percent or higher rating. Additionally, while the Veteran has difficulty establishing and maintaining effective relationships, there is no persuasive evidence that she is not capable of establishing and maintaining such relationships as evidenced by her marriage and sustained employment. The level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. At worst, the Veteran experiences occupational and social impairment with reduced reliability and productivity. The February 2013 and August 2019 VA examiners opined the Veteran has occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. The January 2014 VA examiner opined the Veteran has occupational and social impairment with reduced reliability and productivity. During the August 2019 VA examination, the Veteran reported that she has been married for six years. She currently maintains a personnel job, managing adequately with her computer in her cubicle with little interpersonal contact. She has been working in this job since 2009. See January 2014 VA examination. Further, while January 2014 private treatment records show the Veteran reported feeling overwhelmed in her job, VA examinations show the Veteran has maintained her job since 2009. Thus, she has demonstrated an ability to adapt to stressful circumstances. Therefore, entitlement to a rating in excess of 50 percent for mood disorder is not warranted. REASONS FOR REMAND 1. Entitlement to a separate compensable rating for right lower extremity radiculopathy is remanded. 2. Entitlement to a separate compensable rating for left lower extremity radiculopathy is remanded. The July 2019 VA examiner noted that the Veteran has bilateral lower extremity radiculopathy associated with lumbar spine strain with arthritis affecting the left femoral nerve and bilateral sciatic nerves. The examiner found the Veteran suffered from mild right lower extremity radiculopathy and moderate left lower extremity radiculopathy. Thus, the Board finds that the RO should consider in the first instance whether the Veteran is entitled to separate compensable ratings for radiculopathy affecting the lower extremities. 3. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected lumbar strain is remanded. 4. Entitlement to service connection for right hip disorder, to include as secondary to service-connected lumbar spine strain is remanded. The Veteran was afforded a VA examination in July 2019 for her bilateral hip disorder. The examiner reasoned that based upon the examination, the Veteran has signficant range of motion abnormalities and pain on examination consistent with hip arthritis. A review of the Veteran’s records show complaint of hip pain documented in 2009 and therefore it is as likely as not that the Veteran’s claimed left hip arthritis and right hip arthritis manifested in the first year post-service. However, the same VA examiner opined that the Veteran’s claimed bilateral hip arthritis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned the Veteran’s file did not contain documentation of or basis for hip arthritis in April 2013. While the Veteran had complaints of bilateral hip pain beginning in 2009, the examiner was unable to make a diagnosis of arthritis without hip x-rays positive for arthritis. Although the Veteran exhibited range of motion reduction and pain on range of motion in the hip, review of her x-rays showed normal hip x-rays. The examiner therefore found the Veteran’s bilateral hip disability was less likely than not manifested in the first year post-service as hip arthritis. Moreover, the July 2019 VA examiner opined the Veteran’s left hip disability and right hip disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned the Veteran’s examination revealed normal x-rays bilaterally and the Veteran was unable to recall a specific nexus of injury during service to the hip. The examiner stated that while the Veteran has lumbar radiculopathy which could be associated to hip pain, the examiner is unable to directly relate the Veteran’s left hip problem and right hip problem to the presentation of pain during active service. A remand is necessary to obtain an addendum opinion. The matters are REMANDED for the following action: 1. In light of the July 2019 VA examination findings, consider whether the Veteran is entitled to a separate compensable rating for right lower extremity radiculopathy and a separate compensable rating for left lower extremity radiculopathy. 2. Obtain an addendum opinion to the July 2019 VA examination to determine the nature and etiology of a bilateral hip condition. The entire file must be made available to the examiner. The examiner must opine whether: a) It is at least as likely as not any left and/or right hip pain is proximately due to or the result of the Veteran’s service-connected lumbar spine strain with arthritis. b) It is at least as likely as not that any current left and/or right hip pain was aggravated beyond its natural progression by the Veteran’s service-connected lumbar spine strain with arthritis. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, Associate 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.