Citation Nr: 21000203 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 11-02 569 DATE: January 4, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent for degenerative arthritis of the left hip is denied. Entitlement to a disability evaluation in excess of 10 percent for degenerative arthritis of the right hip is denied. Entitlement to a disability evaluation in excess of 20 percent for degenerative disc disease at L2-S2 with spondylosis is denied. REMANDED Entitlement to service connection for a left shoulder disability, to include as secondary to degenerative disc disease at L2-S2 with spondylosis is remanded. Entitlement to service connection for carpal tunnel syndrome (CTS), to include as secondary to degenerative disc disease at L2-S2 with spondylosis is remanded. Entitlement to service connection for bilateral ulnar neuropathy secondary to degenerative disc disease at L2-S2 is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s left hip disability has been manifested by slightly reduced range of motion, with pain on motion. There is no evidence of ankylosis, limitation of flexion approaching 45 degrees or less, limitation of extension approaching 10 degrees or less, limitation of abduction beyond 10 degrees, or flail joint. 2. Throughout the appeal period, the Veteran’s right hip disability has been manifested by slightly reduced range of motion, with pain on motion. There is no evidence of ankylosis, limitation of flexion approaching 45 degrees or less, limitation of extension approaching 10 degrees or less, limitation of abduction beyond 10 degrees, or flail joint. 3. Throughout the appeal period, the Veteran’s low back disability has been manifested by limited range of motion, with pain on motion, worsened during flareups or with repetitive use over time, and guarding and spasm causing antalgic gait and abnormal spinal contour. There is no evidence of ankylosis at any level of the spine, nor of limitation in forward flexion of the lumbar spine approaching 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability evaluation in excess of 10 percent for degenerative arthritis of the left hip are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, Diagnostic Code (DC) 5255-5010. 2. The criteria for entitlement to an initial disability evaluation in excess of 10 percent for degenerative arthritis of the right hip are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, DC 5255-5010. 3. The criteria for entitlement to a disability evaluation in excess of 20 percent for degenerative disc disease at L2-S2 with spondylosis are not met for any portion of the period herein on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to December 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before another Veterans Law Judge at a Board hearing in August 2011. The transcript is of record. That Veterans Law Judge has retired and is no longer available to participate in this decision. A November 17, 2020 letter apprised the Veteran of this fact and of his right to testify at a new hearing, and advised that his failure to respond within 30 days would constitute waiver of that right. The Veteran did not respond to the letter within 30 days. The Board will therefore proceed with adjudication of the Veteran’s claims at this time. These matters were previously before the Board in October 2013 and December 2016. On both occasions, they were remanded for development. They have been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Claims Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.   If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3.   When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, with respect to musculoskeletal disabilities, the law recognizes that “[p]ainful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Bilateral Hip Disabilities The Veteran is currently in receipt of a 10 percent evaluation for degenerative arthritis of each hip and avers that his condition warrants a higher rating for the entire period on appeal. Disabilities of the hip are evaluated under a number of DCs. DC 5250 deals with ankylosis of the hip joint. As that finding is not present for either hip in this matter, it shall not be addressed further. DC 5251 assigns a maximum 10 percent evaluation for limitation of thigh extension to 5 degrees or less. As noted above, the Veteran is already in receipt of a 10 percent evaluation, and no higher rating is available under this code. DC 5252 assigns a 20 percent rating for limitation of thigh flexion of 30 degrees; a 30 percent evaluation where thigh flexion is limited to 20 degrees, and a maximum 40 percent evaluation where thigh flexion is limited to 10 degrees. DC 5253 assigns a 20 percent evaluation where thigh abduction is limited such that motion is lost beyond 10 degrees. DC 5254 assigns an 80 percent evaluation for flail joint of a hip. That finding is not present for either hip in this case. Finally, DC 5255 assigns ratings for impairment of the femur, including malunion, fracture of the surgical neck, and fracture of the shaft, assigning ratings based on the severity of the sequelae of those injuries. The record does not indicate the Veteran is beset by those injuries. The currently assigned 10 percent evaluations for each hip have been furnished in contemplation of painful motion of the hip joints. As discussed below, while the Veteran has demonstrated a degree of lost range of motion in both hips, with pain on motion, that degree of loss does not approach what is required for a compensable evaluation under either DC 5251, 5252, or 5253, even when considering additional lost range of motion during flareups or with repetitive use of the joint over time. The record reflects a long history of bilateral hip symptoms. Diagnostic imaging conducted in June 2008 shows osteoarthritic changes to both hips, and VA treatment records from that time reflect consistent reports of bilateral hip pain, treated with multiple medications, including narcotic pain medication. The Veteran has also reported reliance on a cane for ambulation. VA medical records show consistent and essentially unremitting bilateral hip symptoms, including pain and stiffness, worsened with use, and often requiring an assistive device for ambulation and stability. The Veteran was evaluated at a July 2013 VA examination, where range of motion testing showed right hip flexion to 115 degrees, with pain at 100, and extension to at least 30 degrees with pain at 20. Left hip flexion was limited to 120 degrees with pain at 110, and extension to greater than 30 degrees, with pain at 20. The Veteran was able to cross his legs, and demonstrated normal hip abduction and out-toeing. There was no evidence of lost range of motion with multiple repetitions of testing. The Veteran did report pain on palpation of the hip joints bilaterally, but he retained full strength in the musculature surrounding the hip joint. A more recent VA examination, conducted in November 2019, showed similar ranges of motion to those measured at the earlier examination. The Veteran demonstrated right hip flexion to 120 degrees, extension to 30, abduction to 40, adduction to 25, external rotation to 50, and internal rotation to 40. The Veteran reported pain on testing, the examiner indicating that pain rose to such a level as to cause functional loss. Left hip flexion was limited to 115 degrees, extension to 30, abduction to 35, adduction to 25, external rotation to 45, and internal rotation to 40. Again, pain was noted on testing, but with respect to the left hip, the examiner indicated pain did not rise to such a level as to cause functional loss. The Veteran was able to complete three repetitions of testing on both hips without demonstrated loss of range of motion, and was able to cross his legs both ways. The VA examiner explained that the Veteran’s symptomatology, including range of motion on testing, was consistent with his account with respect to functional loss with repetitive use of the joint over time and during flareups, but that no additional loss of range of motion would be expected under either condition. The examiner did not perform testing on passive range of motion due to concerns over causing the Veteran injury. Pain was not noted with non-weightbearing, and the Veteran demonstrated full strength in the musculature surrounding the hip joints bilaterally, with no evidence of muscle atrophy. A review of this evidence shows that a higher evaluation than the already assigned 10 percent is not available under any DC applicable to disabilities of the hip. While the Veteran has demonstrated pain on motion, his tested range of motion in both hips does not approach the degree of limitation contemplated for a compensable evaluation under any DC, including after repeated bouts of testing, or, based on the assessment of the November 2019 VA examiner, during flareups or with repetitive use of the joint over time. Rather, the 10 percent evaluations of which he is in receipt were granted based on painful motion of the hip joints, as that rating constitutes the minimum available rating for the joint. See Burton, supra. Given the evidence summarized above, the Board does not find entitlement to a higher evaluation warranted for any portion of the appeal period, and accordingly, the claims for entitlement to increased evaluations for the right and left hips must be denied. Lumbar Spine Disability Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a , Diagnostic Codes 5235 to 5243. In pertinent part, these regulations provide that a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or for 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 when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or when favorable ankylosis of the entire thoracolumbar spine is present. A 50 percent rating is assigned where unfavorable ankylosis of the entire thoracolumbar spine is present, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These ratings do not consider symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As an initial matter, the Board observes that the Veteran’s spine is not ankylosed at any level, and as such, those evaluations pertinent to ankylosis will not be discussed further. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71a, Note (2) (2015). Intervertebral Disc Syndrome (IVDS) is rated under Diagnostic Code 5243 and is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). The Board observes that the Veteran has been diagnosed with IVDS. See, e.g., July 2013 and November 29, 2019 VA Examination Reports. However, there is no evidence he has ever experienced incapacitating episodes, defined as a period of acute signs and symptoms, related to IVDS, requiring bed rest prescribed by a physician and treatment by a physician. As such, a rating in excess of the already assigned 20 percent is unavailable based on IVDS, and those provisions will not be addressed further. The Veteran is currently in receipt of a 20 percent evaluation for his low back disability for the entirety of the period herein on appeal. He avers that his condition warrants a higher rating. The Board notes that the Veteran’s 20 percent evaluation was conferred not in contemplation of limitation of range of motion, but based on guarding or muscle spasm of such severity as to cause abnormal gait or abnormal spinal contour. That symptom is not associated with any higher rating under the General Rating Formula, and thus, a higher evaluation would require a showing of limitation to range of motion such that forward flexion of the thoracolumbar spine was limited to 30 degrees or less. No such finding has been made during the appeal period. The record shows the Veteran underwent a lumbar laminectomy and spinal fusion in 1988, and has experienced low back pain since. An August 2008 VA General Medical Examination reflects significant low back pain of worsening severity. VA treatment records throughout the appeal period reflect symptoms including back pain and stiffness of such severity as to limit the Veteran’s capacity for ambulation, and in combination with other disabilities, to necessitate the use of assistive devices for stability and ambulation. At a September 2010 VA examination, the Veteran complained of weekly flareups of his low back pain. Guarding was noted, and the Veteran was observed to ambulate with an antalgic gait, with some degree of lumbar flattening. The Veteran evinced pain on lumbar palpation. Range of motion testing revealed forward flexion to 110 degrees, extension to 30, right and left lateral flexion to 50 each, and left lateral rotation to 70. The Veteran indicated he was unable to complete the testing for right lateral rotation due to pain. There was evidence of pain on testing, and the Veteran demonstrated a small degree of lost range of motion with repeated bouts of testing, under which condition flexion remained limited to 110 degrees, extension was reduced to 20 degrees, right and left lateral flexion to 40 each, and left lateral rotation to 60. A second VA examination was conducted in July 2013, where again, the Veteran complained of flareups, with symptom exacerbation associated with prolonged sitting, standing, and walking. Range of motion testing revealed forward flexion limited to 90 degrees, with pain at 80, extension to 30 or more degrees, with pain at 20, and essentially normal range of motion in all other maneuvers, albeit with pain at 20 degrees of right lateral flexion. The Veteran showed no loss of range of motion with multiple bouts of testing, but demonstrated pain on movement and tenderness to palpation at L4-5. Contrary to the earlier VA examiner’s findings, the VA examiner indicated there was no evidence of guarding or muscle spasm. August 2018 VA treatment records reveal ongoing tenderness to palpation in the lumbar region, but indicate musculoskeletal range of motion of the lumbar spine was normal in both flexion and extension, albeit with pain on extension. A third VA examination was conducted in November 2019. Testing showed significantly diminished range of motion as compared with prior examinations. The Veteran’s forward flexion of the lumbar spine was limited to 50 degrees, extension to 5, right lateral flexion to 15, left lateral flexion to 20, and right and left lateral rotation to 15 each, with pain on all tested movements. There was, however, no loss of range of motion with repeated bouts of testing, and the examiner opined that no additional loss of range of motion would be expected with repetitive use of the joint over time, or during flareups. The Veteran evinced tenderness to palpation of the lumbar region, and demonstrated spasm resulting in abnormal gait or spinal contour. There was pain on passive range of motion testing, and it was noted that the Veteran remained reliant on ambulatory aids. Finally, the Board observes that recent VA treatment notes reflect ongoing and significant low back symptoms; for instance, December 2019 VA treatment records show the Veteran made several visits late that year to the Emergency Room for back pain, and that he has been prescribed and regularly uses narcotic pain medications. Further, VA treatment notes show he has received several cortisone injections during the appeal period, with only limited relief. A review of this evidence leaves little doubt that the Veteran’s low back disability confers significant and limiting symptoms. However, there is no basis in the record for a disability evaluation in excess of the already-assigned 20 percent rating. At no point during the appeal period has the Veteran’s capacity for forward flexion of the thoracolumbar spine been limited to 30 degrees or less, even with repeated bouts of testing, and the VA examiner with whom the Veteran met in November 2019 confirmed that the Veteran would not be limited to that degree even during flareups or with repetitive use of the joint over time. Moreover, range of motion testing conducted at the November 2019 VA examination shows substantially more limitation than any other such testing revealed by the record, and is at odds with the aforementioned August 2018 VA treatment notes indicating normal lumbar range of motion. The Board notes as much not to call into doubt the validity of the November 2019 testing, but because although that evidence demonstrates considerably more functional limitation in terms of lost range of motion than does any other evidence in the record, it does not demonstrate the degree of lost range of motion warranted for a higher evaluation. Thus, even considering the additional functional limitation conferred by flareups or repetitive use of the joint over time, the Board does not find entitlement to a rating in excess of 20 percent warranted for any portion of the appeal period. As such, the appeal for increase must be denied. REASONS FOR REMAND Additional development must be completed before the Veteran’s claims for service connection for a left shoulder, bilateral CTS and ulnar neuropathy disorders can be finally adjudicated. Regarding the left shoulder disorder, in its December 2016 remand, the Board explicitly requested of the VA examiner a detailed opinion with respect whether the Veteran’s diagnosed left shoulder disorder bore any etiological relationship to his service-connected low back disability, to include by way of aggravation. That question was not squarely addressed by the VA examiner with whom the Veteran met in November 2019; rather, the examiner merely related that “[b]ack conditions do not cause shoulder conditions,” and relayed that because the shoulder condition was not diagnosed until many years after separation, there was no etiological relationship to service. The Board acknowledges the examiner’s account of the Veteran’s statements at that examination, specifically his purported acknowledgment that his left shoulder problems were not present in service or directly related to an in-service event, but those statements do not obviate the necessity for compliance with the Board’s remand directives. Likewise, respecting the Veteran’s CTS and bilateral ulnar neuropathy claims, he Board’s December 2016 remand required that the VA examiner address a July 2007 VA treatment note reflecting a possible etiological relationship between the Veteran’s bilateral ulnar neuropathy and CTS and his back disability. Second, the Board required that the examiner evaluate whether either condition herein on appeal was aggravated beyond its normal course of progression by the Veteran’s back disability. The November 2019 VA examiner’s opinion does not address adequately either issue. The opinion merely states that “[d]egenerative joint disease does NOT cause neuropathies,” and that CTS or bilateral ulnar neuropathies “[are] not caused by, related to, or aggravated by [the Veteran’s] military time.” On remand, the Veteran must be afforded a new VA examination, and an adequate medical opinion as to etiology must be furnished, to include a thorough and reasoned exploration of any etiological relationship between the Veteran’s diagnosed left shoulder, bilateral CTS and ulnar neuropathy disorders and his service-connected spine disability, to include by way of aggravation. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, obtain any outstanding VA and private treatment records relevant to the Veteran’s claims. 2. Then, schedule the Veteran for a VA examination to explore the etiology of his left shoulder disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.     Please state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that a diagnosed left shoulder disorder began in service or is otherwise related to service. If direct service connection is not shown, please state whether it is at least as likely as not that a diagnosed left shoulder disorder has been (a) caused or (b) aggravated (i.e., worsened) by any service-connected disability, including degenerative disc disease at L2-S2 with spondylosis. The examiner is reminded that in expressing this opinion both prongs (a) and (b) need to be addressed, with separate opinions and separate supporting rationales. 3. Schedule the Veteran for a VA examination to explore the etiologies of his carpal tunnel syndrome and bilateral ulnar neuropathies. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.     Please state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that carpal tunnel syndrome and/or ulnar neuropathy or either upper extremity began in service or is otherwise related to service. If direct service connection is not shown, please state whether it is at least as likely as not that carpal tunnel syndrome and/or ulnar neuropathy or either upper extremity has been (a) caused or (b) aggravated (i.e., worsened) by any service-connected disability, including degenerative disc disease at L2-S2 with spondylosis. The examiner is reminded that in expressing this opinion both prongs (a) and (b) need to be addressed, with separate opinions and separate supporting rationales. If no etiological relationship is found, that finding must be reconciled with the July 2007 VA treatment note indicating the potential presence of an etiological relationship between carpal tunnel syndrome and/or bilateral ulnar neuropathies and degenerative disc disease. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.