Citation Nr: 21002746 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 20-12 058 DATE: January 14, 2021 ORDER A rating higher than 20 percent for cervical spine degenerative joint disease (DJD) and intervertebral disc syndrome (IVDS) is denied. A rating higher than 20 percent for left shoulder strain is denied. A rating higher than 10 percent for left hip limitation of extension is denied. A compensable rating for left hip limitation of flexion is denied. A rating higher than 10 percent for left hip impairment of thigh is denied. FINDINGS OF FACT 1. The Veteran’s cervical spine has shown range of motion at worst flexion to 21 degrees and extension to 7 degrees, has not been ankylosed, and has not been productive of incapacitating episodes. 2. The preponderance of the evidence does not show that Veteran’s left shoulder is limited to motion of 25 degrees from her side. 3. The Veteran’s left hip limitation of extension is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code (DC) 5251. 4. The preponderance of the evidence does not show that Veteran’s left hip is limited to motion of flexion to 45 degrees or less. 5. The preponderance of the evidence does not show that Veteran’s left hip has limited abduction of motion lost beyond 10 degrees CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for cervical spine DJD and IVDS are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5243. 2. The criteria for a rating higher than 20 percent for left shoulder strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5201. 3. The criteria for a rating higher than 10 percent for left hip limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5251; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 4. The criteria for a compensable rating for left hip limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5252. 5. The criteria for a rating higher than 10 percent for left hip impairment of thigh are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to May 1999. The Board previously remanded these matters in August 2020. 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. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran sought increased ratings for her claimed disorders in March 2018. Cervical Spine The Veteran’s cervical spine disorder is assigned a 20 percent rating pursuant to DC 5243. DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without 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, the following ratings will apply. Under Diagnostic Code 5243, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; localized tenderness not resulting in abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of its height. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 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 of the cervical spine is 340 degrees. 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. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted 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 5243 provides that, for purposes of ratings under DC 5243, 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. 38 C.F.R. § 4.71a. After review of the record, the Board does not find that any evidence supports a rating higher than 20 percent for the Veteran’s cervical spine disorder. Her documented ranges of motion were, at worst, flexion to 21 degrees, extension to 7 degrees, right lateral flexion to 10 degrees, left lateral flexion to 11 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees in July 2019 and flexion to 45 degrees, extension to 40 degrees, right lateral flexion to 30 degrees, left lateral flexion to 5 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 20 degrees in September 2020. See July 2019 and September 2020 VA examinations. The Veteran’s neck caused pain and guarding which did not result in abnormal gait or abnormal spinal contour. The Veteran related that she had flare-ups as her pain getting worse and her neck getting stiffer. She also stated that turning her head laterally to see behind her, especially while driving, was difficult. No ankylosis was found. IVDS was noted, but there were no episodes which required bed rest. See July 2019 and September 2020 VA examinations. There are no findings in the Veteran’s VA examinations or other medical records of evidence which indicate that her cervical spine ranges of motion were such to approximate a limitation of forward flexion to 15 degrees or less or ankylosis, which would be necessary to support a 30 percent rating or one higher. The Board has also considered the Veteran’s lay statements, including her 2019 notice of disagreement (NOD) where she reported her neck symptoms caused her to use a recliner to take the weight of her head off her cervical spine. While the Veteran is competent to report her symptoms, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, although the Veteran may believe that she meets the criteria for a higher rating, the medical findings show that she does not meet the schedular requirements for a higher rating, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Shoulder The Veteran’s left shoulder was assigned a 20 percent rating pursuant to DC 5201. The Veteran’s left arm is her minor arm. DC 5201 provides for a 20 percent rating when the range of motion of the minor arm is limited to shoulder level or midway between the side and shoulder level and a maximum 30 percent evaluation when the range of motion of the minor arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. The normal range of motion of the shoulder is 0 to 180 degrees of flexion (forward elevation), 0 degrees to 180 degrees of abduction, 0 degrees to 90 degrees of external rotation, and 0 degrees to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I. Thus, only findings of a limitation of the Veteran’s left shoulder 25 degrees from her side would warrant a rating higher than her current 20 percent. After review of the record, the Board does not find that any medical evidence supports such a finding. The Veteran’s left shoulder was shown to have, at worst, flexion, abduction, external rotation to 60 degrees and internal rotation to 80 degrees in her July 2019 VA examination and, at worst, flexion to 92 degrees, abduction to 98 degrees, external rotation to 48 degrees, and internal rotation to 90 degrees in her September 2020 VA examination. Pain was noted to limit functional ability and flare-ups were noted in both examinations. The Veteran noted pain with lifting her arm above horizontal. No ankylosis was noted. Based on these findings, a rating higher than 20 percent for the Veteran’s left shoulder limitations is not warranted or supported by the record. There is no indication, even considering the Veteran’s reports of limits caused by pain and flare-ups that her left shoulder was limited to motion 25 degrees from her side. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. The Board has also considered additional or alternative ratings under DCs 5200, 5202, or 5203, but finds any separate or additional rating is not appropriate as the medical records do not show that the Veteran has any symptom or disability associated with her scapulohumeral articulation, humerus, or clavicle/scapula. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Hip The Veteran is in receipt of multiple ratings for her left hip disability pursuant to DCs 5251-5253. The average normal range of motion of the hip is flexion from 0 to 125 degrees and abduction from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. At the outset, as to other potentially applicable diagnostic codes pertaining to the hip, the record does not contain evidence of ankylosis of the left hip or evidence of left hip femur fracture or flail joint; therefore, ratings under DCs 5250, 5254, or 5255 are not appropriate at any time during the rating period. 38 C.F.R. § 4.71a. Limitation of Extension The Veteran’s limitation of her left hip extension is assigned a 10 percent rating pursuant to DC 5251. DC 5251 provides a sole 10 percent rating for extension of the thigh limited to 5 degrees. Thus, the Veteran is in receipt of the maximum rating allowed. In this case, there is no legal basis upon which to award a higher rating for limitation of extension of the left hip, as the maximum rating for that disability has already been assigned. The Veteran’s claim for such a benefit is consequently without legal merit and must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (1994). Limitation of Flexion The Veteran’s limitation of her left hip flexion is assigned a noncompensable (0%) percent rating pursuant to DC 5252. Under DC 5252, a Veteran is entitled to a 10, 20, 30, or 40 percent rating for flexion of the thigh limited to 45, 30, 20, or 10 degrees, respectively. In her July 2019 VA examination, the Veteran’s left hip showed, at worst, flexion to 89 degrees, extension to 12 degrees, abduction to 30 degrees, adduction 25 degrees, external rotation to 27 degrees, and internal rotation to 22 degrees. The Veteran was noted to be unable to abduct her hip far enough to allow for riding a horse. The Veteran’s September 2020 VA examination showed, at worst, flexion to 80 degrees, extension to 30 degrees, abduction to 30 degrees, adduction 25 degrees, external rotation to 20 degrees, and internal rotation to 30 degrees. The Veteran was not found to be unable to cross her legs. Pain was noted on external and internal rotation. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was pain and interference with sitting and standing. No ankylosis was noted. Based on these findings, a compensable rating for the limitation of the Veteran’s flexion is not warranted or supported by the record. There is no indication, even considering the Veteran’s reports of limits caused by pain and flare-ups, that her left hip flexion was limited to any range less than 80 degrees – which is well above the minimum limitation of 45 degrees necessary for a compensable rating. Neither the Veteran nor her representative have identified any evidence which supports such a finding or a higher rating. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Impairment of Thigh The Veteran’s impairment of her left hip motion other than flexion/extension is assigned a 10 percent rating pursuant to DC 5253. Diagnostic Code 5253 provides for a 10 percent rating where there is impairment of the thigh, resulting in limitation of rotation of the affected leg, such that he cannot toe-out more than 15 degrees, or there is a limitation of abduction such that the Veteran cannot cross his legs. A 20 percent rating is warranted under Diagnostic Code 5253 where impairment of the thigh causes limitation of abduction of motion lost beyond 10 degrees. 38 C.F.R. § 4.71a. Based on the above noted ranges of motion from the Veteran’s VA examinations, the Board does not find that the Veteran’s impairment of her thigh equates to a rating higher than 10 percent for limitation of her left hip motion. Her examinations and the other medical records of evidence do not show that the Veteran had an impairment of her left hip/thigh such that her motion was lost beyond 10 degrees. See July 2019 and September 2020 VA examinations. Neither the Veteran nor her representative have identified any evidence which supports such a finding or a higher rating. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. (Continued on the next page)   As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.