Citation Nr: 21003409 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-09 670A DATE: January 21, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected left shoulder disability is denied. Entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected cervical spine disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the loss of motion in the Veteran’s left shoulder is not manifested by limitation of motion of the arm to 25 degrees from the side, even considering the Veteran’s flare-ups. 2. The preponderance of the evidence shows that, at worst, the Veteran’s cervical spine disability has resulted in forward flexion to 25 degrees; extension to 20 degrees; right and left lateral flexion to 10 degrees each; right lateral rotation to 30 degrees; left lateral rotation to 10 degrees; no ankylosis; and a severe muscle group XXII injury. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected left shoulder disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200 to 5203. 2. The criteria for establishing entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected cervical spine disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5322. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1969 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in March 2019 it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with adequate shoulder and neck examinations which met the criteria of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was provided with adequate examinations. As such, the Board finds that the AOJ substantially complied with the directives in the March 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the Board notes that as a result of this additional development the RO, in a July 2020 rating decision, increased the Veteran’s left shoulder and cervical spine disability ratings to 30 percent each, effective January 20, 2012, the date of the Veteran’s initial claim for increase. As such, the Board will address whether the Veteran is entitled to disability ratings in excess of 30 percent for his service-connected conditions, as these ratings encompass the period on appeal. Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Left Shoulder The Veteran asserts that his left shoulder disability has increased in severity and that he is entitled to a disability rating in excess of 30 percent. The Veteran’s left shoulder is currently rated under Diagnostic Code 5003-5201. With respect to disabilities of the shoulder and arm, 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 set forth the relevant provisions. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5200 evaluates ankylosis of the shoulder. However, the evidence of record does not document that the Veteran experiences ankylosis in his shoulder. Therefore, this Diagnostic Code is not applicable and will not be discussed further Diagnostic Code 5201 provides that limitation of motion of the minor and major arms at shoulder level warrants 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). The Board notes that normal shoulder motion is flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Diagnostic Code 5202 evaluates impairments of the humerus. However, the evidence of record does not document that the Veteran experiences any humerus impairment. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5203 evaluates impairments of the clavicle or scapula. However, the highest disability rating under this Diagnostic Code is 20 percent. As the Veteran is already rated at 30 percent for his shoulder disability, he already exceeds the maximum possible rating under this code. As such, Diagnostic Code 5203 is not applicable for the Veteran’s claim for an increased rating and will not be discussed further. The Veteran has been afforded September 2012, September 2015, January 2018, and December 2019 VA Shoulder and Arm Conditions examinations. However, even when considering the Veteran’s functional limitations due to pain with and without weight bearing; resistance in active and passive range of motion; flare-ups; repeated use over time; and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as DeLuca, Mitchell, Burton, Correia, and Sharp, the Veteran’s functional losses do not equate to the criteria required for an increased 40 percent rating. The Veteran’s arm motion was never limited to 25 degrees from the side as needed for a higher rating. In conclusion, an increased rating for the Veteran’s left shoulder disability, currently rated 30 percent disabling, is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cervical Spine Legal Criteria With respect to disabilities of the cervical spine, 38 C.F.R. § 4.71a, Diagnostic Code 5242 sets forth the relevant provisions. As relevant to the cervical spine , under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, a 30 percent disability rating is warranted with forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion is 0 to 45 degrees, and left and right lateral rotation is 0 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 to 340 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Intervertebral disc syndrome is evaluated under 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 a higher evaluation. In relevant part, the Veteran’s IVDS can be rated at 20 percent disabling with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the last 12 months. A 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations 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. Injuries to Muscle Group XXII are rated under Diagnostic Code 5322. In pertinent part, slight injuries are rated as noncompensable. Moderate injuries are rated 10 percent disabling. Moderately severe injuries are rated as 20 percent disabling. Severe injuries are rated as 30 percent disabling. Analysis The Veteran asserts that his cervical spine disability has increased in severity and that he is entitled to a disability rating in excess of 30 percent. The Veteran’s cervical spine is currently rated under Diagnostic Code 5242-5322. The Board notes that the Veteran currently has a maximum rating under Diagnostic Code 5322, and as such, he can only obtain a higher disability rating for his cervical spine disability under the criteria for Diagnostic Code 5242. Additionally, the Board notes that the Veteran does not have a current diagnosis of IVDS. In order to qualify for a disability rating in excess of 30 percent, the Veteran must have unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. The Veteran was provided with September 2015, January 2018, and December 2019 VA Neck examinations. However, the medical evidence of record does not reflect that the Veteran has had ankylosis of his cervical spine at any point during the period on appeal. In fact, the Veteran’s VA examiners specifically indicated that he was not currently experiencing ankylosis of his cervical spine. Further, the Board notes that while the Veteran’s treatment records indicate that he has continued to receive treatment for neck pain these records do not reflect manifestations more severe than those documented in the above VA examinations. Further, they do not document that the Veteran experiences ankylosis of his cervical spine. Thus, upon careful consideration of the evidence, the Board determines that a disability rating in excess of 30 percent is not warranted for the Veteran’s cervical spine disability. The 30 percent rating is the maximum rating allowed under Diagnostic Code 5322. Ankylosis of the Veteran’s spine was not observed at any point during the appeal period. As such the Veteran is not entitled to a higher rating under Diagnostic Code 5242. The Board has considered the Veteran’s lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current condition entitles him to a disability rating in excess of 30 percent, such statements are inconsistent with the medical evidence of record that does not document any ankylosis at any time during the pendency of the appeal. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). As noted above, the rating criteria requires that for a 40 percent rating the Veteran must have, unfavorable ankylosis of the cervical spine. However, the medical evidence shows that the Veteran does not have ankylosis, and as such, the Board assigns greater weight to the medical evidence. (Continued on the next page) For these reasons, the Board finds that a rating in excess of 30 percent for the Veteran’s cervical spine disability is not warranted at any time during the appeal period. Therefore, the Board concludes that a preponderance of the evidence is against a rating in excess of 30 percent for the Veteran’s cervical spine disability. The claim is, therefore, denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.