Citation Nr: 21000722 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-11 118A DATE: January 6, 2021 ORDER For the entire increased rating period on appeal, a disability rating in excess of 20 percent for right lower extremity radiculopathy is denied. For the entire increased rating period on appeal, a disability rating in excess of 20 percent for impingement syndrome of the left shoulder with osteoarthritis (previously service connected as bicipital tendinitis) is denied. For the entire increased rating period on appeal, a disability rating in excess of 20 percent for lumbosacral strain with mild degenerative disc disease (DDD) is denied. FINDINGS OF FACT 1. The Veteran’s L5 right radiculopathy has manifested as no more than moderate impairment. 2. The Veteran’s impingement syndrome of the left shoulder with osteoarthritis has primarily manifested by painful motion, specifically painful overhead reaching and lifting, but has not manifested by motion limited to midway between the side and shoulder level, even taking into account his complaints of painful flare-ups, and has not manifested as ankylosis or impairment of the humerus. 3. The Veteran’s lumbosacral strain with mild DDD, even when considering painful flare-ups, has not manifested as forward flexion of the thoracolumbar spine to 30 degrees or less, ankylosis, and/or incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for L5 right radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a disability rating in excess of 20 percent for impingement syndrome of the left shoulder with osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. 3. The criteria for a disability rating in excess of 20 percent for lumbosacral strain with mild DDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2007 to May 2008, including prior periods of active and inactive duty for training (ACDUTRA and INACDUTRA). The case is on appeal from a March 2017 rating decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. L5 Right Radiculopathy Rating Specific Rating Criteria DC 8520 (which pertains to the sciatic nerve) provides for a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve (where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost), warrants the highest rating of 80 percent. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury; the relative impairment in motor function; trophic changes; or sensory disturbances. 38 C.F.R. § 4.120. Analysis The Veteran contends he should have a higher rating for his service-connected right lower extremity radiculopathy. He states that his “right leg goes numb every day, which affects [his] way of life.” The Veteran was afforded a VA examination in September 2017. The examiner found that the Veteran was diagnosed with lumbar radiculopathy in September 2017. During the examination, the Veteran reported that his condition had worsened since service, with pain, numbness, and tingling constantly. The examiner found moderate constant pain (may be excruciating at times), moderate paresthesias and/or dysesthesias, and moderate numbness for the right lower extremity. Additionally, sensation for light touch decreased in the right upper anterior thigh, right thigh/knee, right lower leg/ankle, and right foot/toes. Finally, the examiner noted that the Veteran suffers functional impairment/loss due to radiculopathy, making his ability to work difficult, especially with prolonged walking and bending. Another VA examination was conducted in July 2018. At this examination, the Veteran described a constant, nagging pain, numbing, tingling, difficulty walking, and buckling of the knees. Overall, the Veteran noted the condition had worsened, affecting his way of life, such that he cannot function fully because of constant nagging pain. The examiner found constant severe pain, severe paresthesias and/or dysesthesias, and numbness. The examiner also provided that the sciatic and femoral nerves were affected, resulting in incomplete, mild paralysis. Medical treatment records from February 2018 reflect that the Veteran noted his radicular symptoms for his right lower extremity were worsening. The Board notes that the evidence does not indicate symptoms of marked muscular atrophy or complete paralysis of the sciatic nerve, including no foot dangle or drop, and no active movement prevention of muscles below the knee, which would be indicative of a higher rating. Further, the Board notes that the Veteran’s symptoms are primarily sensory in nature, which weighs against a finding that the symptoms are moderately severe, or worse, as contemplated by VA rating criteria. The VA examiner in July 2018 specifically found that the symptoms were overall mild in severity. For these reasons, the Board finds a higher rating is not warranted as the preponderance of the evidence is against a finding that the radiculopathy is severe enough to approximate moderately severe, or worse, impairment. Therefore, the claim is denied, and an increase is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board notes that in the March 2017 rating decision, the RO granted an increased disability rating of 20 percent, from 10 percent, effective August 16, 2016, the date of receipt of intent to file. Review of the file does not indicate that the Veteran first became entitled to the 20 percent disability rating during the one year period prior to the date of claim. As such, August 16, 2016 is the appropriate effective date for the grant of the 20 percent disability rating. See 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(o) (2018); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). 2. Left Shoulder Rating Specific Rating Criteria 38 C.F.R. § 4.71a, DC 5201 provides that limitation of motion of the major and minor arm at shoulder level warrant a 20 percent evaluation. Limitation of motion of the arm midway between side and shoulder level warrants a 20 percent evaluation (minor) and 30 percent evaluation (major). Limitation of motion of the arm to 25 degrees from side warrants a 30 percent evaluation (minor) and 40 percent evaluation (major). It is clear from the evidence of record that the Veteran experienced painful motion in the shoulder upon raising his left arm upward, above the shoulder, equating to flexion or abduction to 85 degrees. See 38 C.F.R. § 4.71, Plate I. This warrants a 20 percent rating under 38 C.F.R. § 4.71a, DC 5201, for the entire appellate period. Furthermore, a 20 percent rating is the minimum compensable rating for the shoulder joint based on limitation of motion as there is no 10 percent rating. See Sowers v. McDonald, 27 Vet. App. 472, 481-82 (2016) (noting that while there is a 10 percent rating available for the shoulder across all diagnostic codes, a 20 percent rating is the minimum compensable rating for the shoulder for limitation of motion). This 20 percent rating fully reflects the Veteran’s pain and difficulty lifting objects overhead. A higher rating under 38 C.F.R. § 4.71a, DC 5201 is not warranted because during the rating period painful motion for right shoulder abduction and flexion was reported, at worst, to 85 degrees each. Even with consideration of painful motion, to include flare-ups, and other factors, the evidence does not show that the arm has been limited to midway between side and shoulder level, which would be to 45 degrees or over 50 percent less motion than shown at the worst during the appeal period. Thus, a higher rating is not warranted as there is insufficient evidence of further limited or painful range of motion. Furthermore, higher or separate ratings under 38 C.F.R. § 4.71a, DC 5200, 5202, 5203, are not warranted as there is no evidence of ankyloses or other impairment of the humerus, clavicle, or scapula. In sum, the preponderance of evidence is against a rating in excess of 20 percent; thus, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. For these reasons, a rating in excess of 20 percent for impingement syndrome of the left shoulder with osteoarthritis is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 3. Lumbosacral Strain with Mild DDD Rating Specific Rating Criteria The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion is 240 degrees for the thoracolumbar spine. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Alternatively, IVDS can be rated under DC 5243 and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under this Formula, a 20 percent disability rating is awarded for IVDS with incapacitating episodes having a total during of at least 3 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is awarded for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is awarded for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5237 provides that, for purposes of ratings under DC 5237, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Analysis The Veteran contends that he should have a higher rating for his service-connected back disability. He states that his lower back condition has steadily worsened, affecting his everyday activities. The Veteran was afforded a VA examination in February 2017. The examiner found forward flexion of the thoracolumbar spine to 40 degrees and extension, right lateral flexion, left lateral flexion, right later rotation, and left lateral rotation to 20 degrees each. Additionally, while pain was noted during the examination that caused functional loss, there was no guarding, muscle spasms, or ankylosis. Another VA examination was conducted in July 2018. The Veteran reported that his condition had worsened. He described constant nagging pain, numbness, tingling, difficulty walking, groin pain, limping and cramping. He also reported flare-ups, making it difficult to sleep due to the pain, which contributed to a poor quality of life. Additionally, functional loss was reported: when he bends his back, it locks up; he has a hard time picking up things; the right leg has no strength and the left does all the lifting of his body. While no guarding or muscle spasms were found on the exam, the examiner reported the following ranges of motion: forward flexion to 60 degrees, extension to 20 degrees, and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to 30 degrees each. While there was no ankylosis, the examiner did find IVDS of the thoracolumbar spine. However, the IVDS did not result in incapacitating episodes. Based on this evidence and considering functional impairment, painful motion, repetitive motion, and flare-ups, the lumbosacral DDD more closely approximates the criteria for a 20 percent rating throughout the appeal period. Even when considering flare-ups, the evidence does not show forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. In fact, the report from the July 2018 VA examination reflects that the range of motion examination, which showed forward flexion limited to 60 degrees, was conducted during a flare-up of pain. The Board notes that at the time of the March 2017 VA back examination, the Veteran’s forward flexion was limited to 40 degrees and, per the VA examiner, was not conducted during a flare-up. However, at the time of the July 2018 VA back examination, which was conducted during a flare-up, the Veteran complained that the back symptoms had been worsening, despite forward flexion being measured at 60 degrees. Considering all the evidence of record, the Board finds it more likely that the March 2017 VA back examination was conducted during a flare-up of pain, and that the evidence reflects that, throughout the course of this appeal, even during a flare-up of pain, forward flexion of the thoracolumbar spine was not limited to 30 degrees or less. To find otherwise would contradict the Veteran’s assertions of worsening back pain from March 2017 to July 2018. With respect to associated objective neurologic abnormalities, a separate rating for the right lower extremity has already been awarded. There are no other objective neurologic abnormalities for which a separate rating is warranted. The Board acknowledges and had considered the findings in the July 2018 VA back and peripheral neuropathy examinations that show that the Veteran has complained of symptoms such as pain, paresthesias, and numbness in the left lower extremity. However, after examining the Veteran, the VA examiner explicitly found that the Veteran’s left sciatic nerve and left femoral nerve were normal. When considered with the findings of the September 2017 VA peripheral nerve examination, and the other evidence of record, the Board does not find that the evidence supports a current diagnosis of left lower extremity radiculopathy that is due to the service connected back disorder. This finding is supported by an October 2019 VA orthopedic treatment record, which specifically noted radicular symptoms on the right, but made no mention of the Veteran’s left side. In sum, the preponderance of evidence is against a rating in excess of 20 percent; thus, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. For these reasons, a rating in excess of 20 percent for lumbosacral strain with mild DDD is not warranted. The Board notes that in the March 2017 rating decision, the RO granted an increased disability rating of 20 percent, from 10 percent, effective August 16, 2016, the date of receipt of intent to file. Review of the file does not indicate that the Veteran first became entitled to the 20 percent disability rating during the one year period prior to the date of claim. As such, August 16, 2016 is the appropriate effective date for the grant of the 20 percent disability rating. See 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(o) (2018); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the rating issues on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”). Further, as the evidence indicates that the Veteran is currently employed, the Board need not address the issue of entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.