Citation Nr: 21062500 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-16 493 DATE: October 7, 2021 ORDER Entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome, to include rotator cuff tear, status post arthroscopy is denied. Entitlement to a rating in excess of 10 percent for a lumbar spine disability is denied. FINDINGS OF FACT 1. The Veteran's right shoulder disability is manifested by no worse than movement above the shoulder with pain of the major extremity. 2. The Veteran's lumbar spine disability is manifest by forward flexion no worse than 75 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right shoulder impingement syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.30, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1997 to May 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2013 and April 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). At a January 2019 videoconference hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This matter was previously remanded by the Board in May 2019 for further development. A review of the record indicates that the Board's directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome, to include rotator cuff tear, status post arthroscopy The Veteran contends that he is entitled to a higher rating for his right shoulder impingement syndrome. The Veteran's right shoulder impingement syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Effective February 7, 2021, VA amended Diagnostic Code 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The minimum compensable rating for limitation of range of motion in the shoulder joint is 20 percent. See Sowers v. McDonald, 27 Vet. App. 472, 481-82 (2016); see also Burton v. Shinseki, 25 Vet. App. 1, 11-14 (2011). Taken together, the Sowers and Burton cases, read in conjunction with 38 C.F.R. § 4.59, require a minimum 20 percent rating for symptoms of painful motion of either the major or minor shoulder joint. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right shoulder impingement. The evidence of record shows that the Veteran is right-handed as evidenced by the November 2019 VA examination. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he cannot work above his head very long with his right arm would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major or minor extremity. Upon examination in November 2019, the Veteran's right shoulder was found to have motion limited to 145 degrees of flexion and 155 degrees of abduction, which is above the shoulder level. The examiner noted, that during flare ups and due to pain, the Veteran's shoulder had motion limited to 140 degrees of flexion and 150 degrees of abduction, which is still above the shoulder. The Board notes the Veteran's claims that he cannot lift objects above his head. However, this does not indicate limitation of motion to midway between the shoulder or side or otherwise indicate that a higher rating is warranted. Rather, it confirms the examiner's findings that the Veteran's shoulder is limited in motion to no worse than above the shoulder with pain. The Veteran's representative noted a possible MRI was to be performed between May and August 2020 and asked that the claim be remanded to obtain that record. However, the CAPRI record indicates that while an MRI was requested, due to COVID-19, no MRI was scheduled, and it was unknown if or when one would be scheduled. In May 2020, the Veteran stated that he believed it was time to have the MRI done, but that if it had to wait due to COVID, he understood. In August 2020, the Veteran again inquired when it would be possible to schedule the MRI. As there is no evidence that an MRI occurred, the Board cannot remand for the records. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. However, there is no evidence of marked deformity or recurrent dislocation with guarding of the humerus, or worse. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for right shoulder impingement syndrome. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a rating in excess of 10 percent for lumbar spine disability to include strain and IVDS The Veteran contends that he is entitled to a higher rating for his chronic lumbar spine disability. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a lumbar spine disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has daily flare-ups that prohibit him from lifting more than fifty pounds and that he avoids bending over, would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Upon examination in November 2019 the Veteran was found to have forward flexion to 80 degrees and combined motion of the thoracolumbar spine of 205 degrees. The examiner noted that due to pain and repetitive use, forward flexion was limited to 75 degrees with combined motion of the thoracolumbar spine of 185 degrees. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Here there is no evidence of disc herniation with compression and/or irritation of the adjacent nerve root. Thus, a rating under the updated criteria for IVDS is not warranted. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity sciatic nerve radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Regarding a total disability rating for convalescence following the Veteran's November 2013 lumbar spine surgery, the RO assigned a total disability rating from the Veteran's surgery to February 2014. While an August 2020 addendum opinion stated that the Veteran required six months of convalescence, the examiner updated that opinion in September 2020. In the second addendum opinion, the examiner stated that the first opinion was based on subjective reports from the Veteran. However, a review of the Veteran's medical records shows that he had returned to work by February 2014, as such the maximum convalescence period needed was 8 weeks. The Board finds the second addendum opinion to be more probative as it is based on a complete examination of the record and not solely on the reports of the Veteran. Further, the Veteran testified at his January 2019 hearing that he was out of work for six weeks following his surgery. As such, a total disability rating for convalescence after February 1, 2014 is not warranted. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for a lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Uller, 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.