Citation Nr: 20061069 Decision Date: 09/16/20 Archive Date: 09/16/20 DOCKET NO. 16-53 624A DATE: September 16, 2020 ORDER Entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity prior to August 14, 2015, is denied. Entitlement to a rating in excess of 20 percent from August 14, 2015, for radiculopathy of the right lower extremity is denied. Entitlement to an initial 30 percent rating for a right shoulder disability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The low back disability does not result in ankylosis, incapacitating episodes, or limitation of flexion to at most 30 degrees. 2. The left lower extremity radiculopathy has not resulted in worse than moderate neurological impairment. 3. The right lower extremity radiculopathy has not resulted in worse than mild neurological impairment prior to August 14, 2015, or moderate neurological impairment thereafter. 4. The right shoulder disability has resulted in at least intermittent limitation of motion to less than shoulder height but not to 25 degrees from the side or ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code 5242. 2. The criteria for an initial rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8520. 3. The criteria for an initial rating in excess of 10 percent prior to August 14, 2015, and in excess of 20 percent thereafter for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial 30 percent rating for a right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1982 to September 1985. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. It is the intention of the rating schedule to recognize any painful, unstable or malaligned joint, due to healed injury, by assigning at least the minimum compensable rating for that joint. 38 C.F.R. § 4.59. 38 C.F.R. § 4.59 provides for a minimum 10 percent rating for painful, unstable, or malaligned joints, including for residuals of injuries in non-arthritis contexts. Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Moreover, with respect to all service-connected joint disorders, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that, to adequately portray the functional loss of musculoskeletal disabilities, a medical examination must “express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time”). However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2017); Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Lumbar spine disability 2. Radiculopathy of the left lower extremity 3. Radiculopathy of the right lower extremity Disabilities of the thoracolumbar spine are rated under a General Rating Formula (Formula). 38 C.F.R. § 4.71a. The Formula ratings apply with or without symptoms such as pain, stiffness, or aching. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine 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 evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted fir there is unfavorable ankylosis of the entire thoracolumbar spine. The Formula provides for a separate rating for any associated objective neurologic impairment. The Formula for Rating Intervertebral Disc Syndrome (IDS) Based on Incapacitating Episodes provides for a rating of 10 percent for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Higher ratings are warranted for incapacitating episodes having a longer duration during the 12 months period. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. The regulations state that, if the involvement is only sensory, the rating should be for the mild or, at most, the moderate degree of incomplete paralysis. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as “mild,” “moderate” and “severe” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. A September 2013 VA treatment record reveals the Veteran’s history of increased pain with standing and radiation into the right hip. The Veteran had a positive straight leg raise on the right at 45 degrees and spasm and tenderness to palpation in the right lumbar muscles. A June 2015 treatment record reveals the Veteran’s history of mild achiness in the right side of the body. The Veteran reported that he worked. He denied numbness, tingling, or weakness in the extremities. He reported mild pain and was seeking a medication refill after his medications were lost in the mail. Examination revealed minimal tenderness to palpation. Reflexes were equal, and strength and sensation were intact. Gait was normal. An August 2015 VA examination record reveals diagnosis of lumbar spine degenerative joint disease with intervertebral disc syndrome involving both sciatic nerves. The Veteran reported flares manifested by limitation of motion, swelling, and radiating pain. Range of motion testing revealed flexion to 50 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 25 degrees bilaterally. There was pain with motion. There was no change after repetition. The examiner estimated that after repeated use over time, the Veteran’s motion would be additional limited to 40 degrees flexion, 10 degrees extension and lateral flexion, and 20 degrees rotation. The examiner estimated that during flares, motion would be limited to 40 degrees flexion, 10 degrees extension and lateral flexion, and 15 degrees rotation. There was not guarding or spasm. Motor strength was full, and there was no atrophy. Deep tendon reflexes were 1+. Sensation was decreased. The Veteran reported constant mild radicular pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the right lower extremity. The Veteran reported moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. The examiner reported that the Veteran had moderate radiculopathy of the right lower extremity and mild radiculopathy of the left lower extremity. The examiner reported that the lower back disability would cause mild to moderate impairment in performing sedentary activity of employment and moderate to severe impairment in performing physical activity of employment. A February 2016 VA treatment record reveals the Veteran’s history of back pain. The record reports that neurological system was grossly intact with no focal deficit. A July 2017 private treatment record reports that the Veteran had normal gait, full motor strength, normal reflex, normal sensation, and 2+ deep tendon reflex. A June 2018 medical statement reports that the Veteran had progressive, moderately to severely debilitating pain in the leg. He reported that the pain limits sleeping, climbing stairs, working, driving, and performing chores or activities. A September 2019 VA examination record reveals the Veteran’s history of low back pain, spasm, and radicular pain to the thighs. He reported that he cannot stand very long or bend very far or too often. He reported moderate to severe flares. He reported that sometimes the pain is severe enough that he is unable to bend and it is painful to be mobile. Range of motion testing revealed flexion to 70 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally. There was pain with active motion but not passive motion or weight-bearing. There was no change in range of motion after repetition. The examiner reported that range of motion would not be significantly limited with repeated use over time or flares. There was no guarding or spasm. Motor strength was full, there was no atrophy, sensation was intact, and deep tendon reflexes were 2+. Straight leg raise was negative bilaterally. The Veteran reported moderate intermittent radicular pain in the lower extremities. The examiner stated that the Veteran had mild radiculopathy of each lower extremity. There were no incapacitating episodes. February, April, and June 2020 treatment records reveal the Veteran’s history of back pain that radiated down the left leg. Examination revealed no abnormal curvature. Straight leg raise was negative. Strength was full, and sensation was intact. Reflexes were equal and symmetric. Lumbar spine The lumbar spine disability is rated at 20 percent. Separate ratings are assigned for radiculopathies, and there is no evidence of additional neurological deficit. There is also no evidence of incapacitating episodes. Regarding the Formula, the records do not reveal any finding or history of ankylosis of the entire thoracolumbar spine. The evidence consistently documents that the Veteran has movement of the thoracolumbar spine; there is no fixation. The record also does not reveal finding of flexion to at most 30 degrees. Clinical testing consistently reports findings of flexion to at least 40 degrees, including after repetition, with repeated use over time, and during flares. Notably, VA examiners have estimated that flares and repeated use over time would result in flexion to 40 degrees at most limited based on examination of the Veteran and his reported histories, and the 2019 VA examiner determined repeated use over time and flares would not significantly limit the Veteran’s flexion, which was shown to reach 70 degrees. Thus, the Board finds a rating in excess of 20 percent is not warranted. Radiculopathy of the left lower extremity The radiculopathy of the left lower extremity is rated at 20 percent. The Board finds a rating in excess of 20 percent is not warranted. Specifically, the Board finds the record does not suggest the presence of more than moderate impairment of the left lower extremity due to the sciatic nerve. Although the record reveals the Veteran’s histories of symptoms, most consistently reported as pain, clinical evaluation constantly reveals normal motor s strength and near-constantly reveals intact sensation and normal deep tendon reflexes, which indicates that there is no chronic absence or even diminution of reflex or sensation. Additionally, VA examiners have estimated that the radiculopathy results in mild neurological impairment. There is no clinical or objective evidence of moderately severe radiculopathy of the left lower extremity. The Board finds the objective findings are most probative. Thus, a rating in excess of 20 percent is not warranted. Radiculopathy of the right lower extremity Prior to August 14, 2015, the Veteran is assigned a 10 percent rating for radiculopathy of the right lower extremity. The Board finds an initial rating in excess of 10 percent is not warranted during this period because the record reveals normal clinical findings of motor strength, sensation, deep tendon reflexes, and gait, history of “mild” pain, and negative histories of numbness, tingling, or weakness in the extremities. From August 14, 2015, the Veteran is assigned a 20 percent rating. The Board finds a rating in excess of 20 percent is not warranted. Specifically, the Board finds the record does not suggest the presence of more than moderate impairment of the right lower extremity due to the sciatic nerve during this period. Although the record reveals the Veteran’s histories of symptoms, most consistently reported as pain, clinical evaluation constantly reveals normal motor s strength and near-constantly reveals intact sensation and normal deep tendon reflexes, which indicates that there is no chronic absence or even diminution of reflex or sensation. Additionally, VA examiners have estimated that the radiculopathy results in no worse than moderate impairment. There is no clinical or objective evidence of moderately severe radiculopathy of the left lower extremity. The Board finds the objective findings are most probative. Thus, a rating in excess of 20 percent is not warranted. Right shoulder Motion of the major arm is rated at 20 percent for limitation of motion at shoulder level, 30 percent for motion to midway between side and shoulder-level, and 40 percent for motion to 25 degrees from the side. 38 C.F.R. § 4.71a Diagnostic Code 5201. A December 2011 VA examination record reveals the Veteran’s history of right shoulder weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, tenderness, and pain but no fatigability, effusion, subluxation, or dislocation. He reported functional impairment of lifting and moving objects. He reported flares that result in limitation of motion and pain. Examination revealed flexion to 125 degrees and abduction to 125 degrees, with pain at the end degree. There was no additional loss of motion after repetition. There was guarding and tenderness. A September 2013 VA treatment record reveals the Veteran’s history of problems with reaching and repetitive motion of the right arm. The Veteran had mildly decreased motion in the right shoulder, in that it “catches with pain at approximately 120 degrees and improves at 90 degrees.” An April 2015 VA treatment record reveals the Veteran’s history of right shoulder, arm, and elbow pain and stiffness. He reported that he started working again and used his arms “a lot” and his symptoms had increased. Examination revealed pain with right shoulder rotation and against resistance. Another April 2015 VA medical record indicates that the Veteran should not lift over 30 pounds. A June 2015 treatment record reveals the Veteran’s history of mild achiness in the right side of the body. Shoulder examination was normal. A March 2016 VA treatment record reports that the Veteran had right shoulder pain with abduction to 90 degrees. He had flexion to 90 degrees. Motor strength was full. A March 2016 VA treatment record reveals pain with abduction and flexion at 90 degrees. A September 2016 VA treatment record reports pain with abduction at 110 degrees and flexion 90 degrees. A November 2016 VA treatment record reports range of motion of 125 degrees flexion, 55 degrees extension, 120 degrees abduction, 60 degrees external rotation, and 75 degrees internal rotation. A December 2016 VA treatment record reports range of motion of 150 degrees flexion, 55 degrees extension, 120 degrees abduction, 60 degrees external rotation, and 75 degrees internal rotation. A February 2017 VA treatment record reveals the Veteran’s history of increased pain in the right shoulder, estimated as 7/10 at the time of the evaluation. He reported that the pain was severe over the previous weekend. Range of motion testing revealed flexion to 150 degrees, extension to 55 degrees, abduction to 120 degrees, external rotation to 50 degrees, and internal rotation to 75 degrees. An April 2017 VA examination record reveals the Veteran’s history of right shoulder symptoms. He reported flares that make even brushing teeth difficulty and limiting ability to play with his shoulder. He reported limited ability to do overhead movement or heavy lift. The record indicates that the examination was conducted during a flare. Range of motion testing revealed flexion to 90 degrees, abduction to 70 degrees, external rotation to 45 degrees, and internal rotation to 40 degrees. There was pain with motion and pain on palpation. After repetition, flexion was additionally limited to 70 degrees. The examiner reported that pain, weakness, fatigability, lack of endurance, and incoordination would significantly limit functional ability with repeated use over time. The examiner was unable to describe the loss in terms of range of motion because the Veteran had varying degrees of range of motion and functional loss with varying degrees of flares or after repeated use. The examiner explained that the Veteran described additional limitation of increased pain, fatigue, weakness, lack of endurance, and incoordination rather than predictable or usual change in range of motion. August, September, and November 2017 private treatment record reveals the Veteran’s history of right shoulder pain and stiffness. Examination revealed normal strength. Active and passive range of motion testing revealed flexion to 160 degrees and 90 degrees and abduction to 65 degrees, 90 degrees, and 150 degrees. A September 2019 VA examination record reveals the Veteran’s history of shoulder pain when he lifts the shoulder above shoulder level. He reported flares with limitation of strength and motion. Testing revealed flexion to 140 degrees, abduction to 130 degrees, external rotation to 70 degrees, and internal rotation to 60 degrees. There was pain with rotation. There was no change in range of motion after repetition. The examiner determined range of motion would not be significantly limited with repeated use over time or flare. Motor strength was full, and there was no ankylosis. The examiner stated that occupational functioning would be affected because of decreased ability to lift and reach overhead with the right arm. After consideration of the evidence, notably the evidence of abduction limited to fewer than 90 degrees on multiple occasions including flares, the Board finds a rating of 30 percent, is warranted throughout the appeal period. A rating higher than 30 percent is not warranted at any time. The record does not include any findings or histories of motion limited to 25 degrees from the side, including during flares or repeated use over time, and motion is predominantly significantly beyond 25 degrees. Notably, records indicate that, at the most limited, the Veteran demonstrated abduction to 65 degrees and flexion to 70 degrees including during flares and after repeated use. The Board finds the impairment associated with the right (major) shoulder disability does not approximate the disability picture contemplated by the higher rating at any time during the period of the claim. The Board has considered whether there is any other schedular basis to assign a higher or separate rating under 38 U.S.C. § 4.71a but finds no basis for such a rating. In this regard, the Board notes that there is no evidence of associated impairment of the humerus, clavicle, or scapula or ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. The Board has considered the application of the rating criteria for muscle impairment under 38 C.F.R. § 4.73, Diagnostic Code 5304 based on the evidence of rotator cuff tendinosis. Diagnostic Code 5304 rates impairment of shoulder function due to injury to muscle group IV, which includes the muscles associated with the “rotator cuff.” For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56 (c). The maximum rating for the dominant shoulder girdle/arm under Diagnostic Code 5304 is 30 percent. Thus, a higher rating is not available under Diagnostic Code 5304. The Board further finds a separate evaluation is not appropriate under Diagnostic Code 5304 because it would result in pyramiding in violation of 38 C.F.R. § 4.14 because the “sign and symptoms” of the rotator cuff injury, notably pain with motion and weakness, are contemplated in the currently assigned rating under Diagnostic Code 5201. For these reasons, the Board concludes a separate rating or rating greater than 30 percent for the right shoulder disability is not warranted. REASONS FOR REMAND The issue of entitlement to a TDIU has been raised by the record in conjunction with the increased rating claims. The Board finds the record would benefit if the Veteran were asked to provide a VA form VA 21-8940. The matter is REMANDED for the following action: Request a VA 21-8940 from the Veteran. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.