Citation Nr: 21062641
Decision Date: 10/08/21	Archive Date: 10/08/21

DOCKET NO. 15-14 232A
DATE: October 8, 2021

ORDER

For the initial rating period from October 13, 2011 to March 10, 2015, a higher initial disability rating in excess of 10 percent for the left (minor) shoulder supraspinatus and infraspinatus tendon tear and impingement, status post repair (left shoulder disability) is denied.

For the initial rating period from March 10, 2015 to November 1, 2018, a higher initial rating of 20 percent, but no higher, for the left shoulder disability is granted.

For the initial rating period from November 1, 2018 forward, a higher initial rating in excess of 20 percent for the left shoulder disability is denied.

For the initial rating period from October 13, 2011 to December 13, 2017, a higher initial disability rating in excess of 10 percent for degenerative joint disease of the thoracic spine (thoracic spine disability) is denied.

For the initial rating period from December 13, 2017 to September 16, 2019, a higher initial rating of 20 percent, but no higher, for the thoracic spine disability is granted.

For the initial rating period from September 16, 2019 forward, a higher initial disability rating in excess of 20 percent for the thoracic spine disability is denied.

Service connection for a rash, including as a qualifying chronic disability to include undiagnosed illness, is denied.

FINDINGS OF FACT

1. For the initial rating period from October 13, 2011 to March 10, 2015, the left (minor) shoulder disability has been manifested by symptoms of pain and noncompensable painful limitation of motion, without ankylosis, fibrous union or malunion of the humerus, or malunion of the clavicle or scapula.

2. For the initial rating period from March 10, 2015 to November 1, 2018, the left shoulder disability has been manifested by symptoms of pain, painful movement that are productive of limitation of motion of the left arm at shoulder level, without ankylosis or fibrous union of the humerus.

3. For the initial rating period from November 1, 2018 forward, the left shoulder disability has been manifested by symptoms of pain, painful movement that are productive of limitation of motion of the left arm at shoulder level, without ankylosis or fibrous union of the humerus.

4. For the initial rating period from October 13, 2011 to December 13, 2017, the thoracic spine disability has been manifested by pain and limitation of forward flexion greater than 60 degrees, without ankylosis, limitation of forward flexion to 60 degrees or less, a combined range of motion in the thoracolumbar spine less than 120 degrees, muscle spasms, localized tenderness, or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least two weeks during a 12-month period.

5. For the initial rating period from December 13, 2017 to September 16, 2019, the thoracic spine disability has been manifested by pain and limitation of forward flexion greater than 30 degrees, without ankylosis, limitation of forward flexion to 30 degrees or less, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12-month period.

6. For the initial rating period from September 16, 2019 forward, the thoracic spine disability has been manifested by pain and limitation of forward flexion greater than 30 degrees, without ankylosis, limitation of forward flexion to 30 degrees or less, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12-month period.

7. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War; the Veteran's skin rash symptoms have been medically attributed to a diagnosed disability of rosacea, which first manifested after service separation; the currently diagnosed rosacea did not have its onset during and is not otherwise etiologically related to active service, or to an injury sustained during active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA).

CONCLUSIONS OF LAW

1. For the initial rating period from October 13, 2011 to March 10, 2015, the criteria for a higher initial rating in excess of 10 percent for the left shoulder disability have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201.

2. Resolving reasonable doubt in favor of the Veteran, for the initial rating period from March 10, 2015 to November 1, 2018, the criteria for a higher initial disability rating of 20 percent, but no higher, for the left shoulder disability have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201.

3. For the initial rating period from November 1, 2018 forward, the criteria for a higher initial disability rating in excess of 20 percent for the left shoulder disability have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201.

4. For the initial rating period from October 13, 2011 to December 13, 2017, the criteria for a higher initial disability rating in excess of 10 percent for the thoracic spine disability have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

5. Resolving reasonable doubt in favor of the Veteran, for the initial rating period from December 13, 2017 to September 16, 2019, the criteria for a higher initial 20 percent disability rating, but no higher, for the thoracic spine disability have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

6. For the initial rating period from September 16, 2019 forward, a higher initial disability rating in excess of 20 percent for the thoracic spine disability have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

7. The criteria for service connection for a skin rash, including as a qualifying chronic disability, have not been met.  38 U.S.C. §§ 101, 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304, 3.310, 3.317.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant, served on active duty from July 1989 to October 1989, February 2002 to September 2002, September 2005 to December 2006, and from March 2009 to September 2010, with various periods of ACDUTRA and INACDUTRA with the U.S. Army National Guard.

Disability Rating Criteria

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21. 

Where there is a question as to which of two disability ratings shall be applied, the higher rating 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.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  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 C.F.R. § 4.3.

For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.40 and § 4.45.  See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

1. Rating the left shoulder disability from October 13, 2011 to March 10, 2015

For the initial rating period on appeal from October 13, 2011 to March 10, 2015, the Veteran is in receipt of an initial 10 percent disability rating for the service-connected left (minor) shoulder disability under Diagnostic Code 5201.  38 C.F.R. § 4.71a.  

Disorders of the shoulders are rated under Diagnostic Codes 5200 through Diagnostic Codes 5203 of 38 C.F.R. § 4.71a.  The above-referenced Diagnostic Codes (DC) provide for different ratings in certain instances depending on whether the shoulder involved is the major or minor joint.  A November 2012 VA examination reflects the Veteran is right hand dominant.

Under DC 5201, limitation of motion of an arm at the shoulder level warrants a 20 percent rating whether it is the major or minor extremity.  When motion is limited to midway between the side and shoulder level, a 30 percent rating is warranted for the major extremity and 20 percent for the minor extremity.  When motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and 30 percent for the minor extremity.  38 C.F.R. § 4.71a.

Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees.  See 38 C.F.R. § 4.71, Plate I.  In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction.  See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003).

After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period on appeal from October 13, 2011 to March 10, 2015, the criteria for a higher initial rating in excess of 10 percent for the left shoulder disability have not been met or more nearly approximated under Diagnostic Code 5201.  38 C.F.R. § 4.71a.  For the initial rating period from October 13, 2011 to March 10, 2015, the left shoulder disability has been manifested by symptoms of pain and noncompensable painful limitation of motion, without ankylosis, fibrous union or malunion of the humerus, or malunion of the clavicle or scapula.

A November 2012 VA examination report reflects range of motion in the left shoulder was measured to 160 degrees of flexion with pain evident at 160 degrees, which does not more nearly approximate limitation of motion of the left arm at shoulder level (criteria for a 20 percent rating under Diagnostic Code 5201).  Additionally, the VA examiner estimated no additional loss of motion following repetitive use, and the November 2012 VA examination report also reflects 5/5 strength in left shoulder abduction and forward flexion.  VA treatment records throughout the rating period on appeal from October 13, 2011 to March 10, 2015 also do not reflect limitation of motion in the left arm at shoulder level.

Based on the foregoing, the Board finds that the weight of the evidence is against finding that a higher initial rating in excess of 10 percent for the left shoulder disability is warranted at any time during the initial rating period on appeal from October 13, 2011 to March 10, 2015.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7.

2. Rating the left shoulder disability from March 10, 2015 to November 1, 2018

For the initial rating period on appeal from March 10, 2015 to November 1, 2018, the Veteran is in receipt of an initial 10 percent disability rating for the service-connected left (minor) shoulder disability under Diagnostic Code 5201.  38 C.F.R. § 4.71a.  

After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period on appeal from March 10, 2015 to November 1, 2018, the criteria for a higher initial rating of 20 percent, but no higher, for the left shoulder disability have been more nearly approximated.  Throughout the initial rating period on appeal from March 10, 2015 to November 1, 2018, the left shoulder disability has been manifested by symptoms of pain and painful movement that are productive of limitation of motion of the left arm at shoulder level, without ankylosis or fibrous union of the humerus; therefore, a higher initial 20 percent rating is warranted.

A March 2015 VA treatment record shows the Veteran reported continued left shoulder pain that is increased with activity and at night.  Range of motion in the left shoulder was measured to 90 degrees of abduction, which meets the criteria for a higher 20 percent rating under Diagnostic Code 5201.  38 C.F.R. § 4.71a.  

Based on the foregoing evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the initial rating period on appeal from March 10, 2015 to November 1, 2018, the criteria for a higher initial disability rating of 20 percent under Diagnostic Code 5201 for the left shoulder disability have been more nearly approximated.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a.

The Board further finds that, for the initial rating period on appeal from March 10, 2015 to November 1, 2018, a higher initial rating in excess of 20 percent for the left shoulder disability is not warranted.  For the initial rating period from March 10, 2015 to November 1, 2018, the left shoulder disability has not been manifested in limitation of the left arm to 25 degrees from the side (criteria for a 30 percent rating), immediate ankylosis of the scapulohumeral articulation between favorable and unfavorable (criteria for a 30 percent rating under DC 5200), or fibrous union of the humerus (criteria for a 40 percent rating under DC 5202).  Instead, the March 2015 VA treatment record shows the left shoulder disability resulted in limitation of the left arm to 90 degrees of abduction, which does not more nearly approximate limitation of the left arm to 25 degrees from the side.  Based on the foregoing, the Board finds that the preponderance of the evidence is against assignment of a higher initial disability rating in excess of 20 percent for the left shoulder disability for the initial rating period on appeal from March 10, 2015 to November 1, 2018.

3. Rating the left shoulder disability from November 1, 2018 forward

For the initial rating period on appeal from November 1, 2018 forward, the Veteran is in receipt of an initial 20 percent disability rating for the service-connected left (minor) shoulder disability under Diagnostic Code 5201.  38 C.F.R. § 4.71a.  

After a review of all the lay and medical evidence of record, the Board finds that, for the initial rating period on appeal from November 1, 2018 forward, a higher initial rating in excess of 20 percent for the left shoulder disability is not warranted.  For the initial rating period from November 1, 2018 forward, the left shoulder disability has not been manifested in limitation of the left arm to 25 degrees from the side (criteria for a 30 percent rating), intermediate ankylosis of the scapulohumeral articulation between favorable and unfavorable (criteria for a 30 percent rating under DC 5200), or fibrous union of the humerus (criteria for a 40 percent rating under DC 5202).  

Instead, a November 2018 VA examination report shows the left shoulder disability resulted in limitation of the left arm to 160 degrees of flexion and 150 degrees of abduction.  At worst, aa August 2021 VA examination report shows the left shoulder disability resulted in limitation of the left arm to 135 degrees of flexion and 95 degrees of abduction following three repetitions, which does not more nearly approximate limitation of the left arm to 25 degrees from the side.  

VA treatment records similarly do not demonstrate limitation of the left arm to 25 degrees from the side.  Instead, a June 2021 VA treatment record reflects the Veteran complained of left shoulder pain but was nonetheless able to achieve full range of motion in the left arm without evidence of weakness.  Based on the foregoing, the Board finds that the preponderance of the evidence is against assignment of a higher initial disability rating in excess of 20 percent for the left shoulder disability for the initial rating period on appeal from November 1, 2018 forward.

4. Rating the thoracic spine disability from October 13, 2011 to December 13, 2017

For the initial rating period on appeal from October 13, 2011 to December 13, 2017, the Veteran is in receipt of an initial 10 percent disability rating for the thoracic spine disability under Diagnostic Code 5242.  38 C.F.R. § 4.71a.  The Veteran generally contends that a higher initial disability rating for the thoracic spine is warranted.  

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula).  Ratings under the General Rating Formula are made 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.

Under the General Rating Formula, a 10 percent disability rating is assigned 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; 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 cervical spine greater than 15 degrees, but not greater than 30 degrees; 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 at 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine.  A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code.

Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 of the lumbar spine is 240 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.

Note (3) provides that, 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 Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted.

Note (4) instructs to round each range-of-motion measurement to the nearest five degrees.

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. 

Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned 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 assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  

Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.   

Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment.  

Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code 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 code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups.  A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes.  38 C.F.R. § 4.71a.

Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion.  Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive.

After a review of all the lay and medical evidence of record, the Board finds that a higher initial rating in excess of 10 percent for the thoracic spine disability is not warranted for the period from October 13, 2011 to December 13, 2017.  The evidence throughout the initial rating period on appeal from October 13, 2011 to December 13, 2017, shows that the thoracic spine disability did not manifest in ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 60 degrees or less (criteria for a 20 percent rating), a combined range of motion in the thoracolumbar spine less than 120 degrees (criteria for a 20 percent rating), muscle spasms, localized tenderness, or guarding severe enough to result in an abnormal gait or abnormal spinal contour (criteria for a 20 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least two weeks during a 12 month period (criteria for a 20 percent rating).  

A November 2012 VA examination report reflects forward flexion in the thoracolumbar spine was measured to 80 degrees, with a combined range of motion measured to 230 degrees, without objective evidence of painful motion.  Although the November 2012 VA examiner noted positive findings for functional impairment of the thoracic spine following repetitive use resulting in less movement than normal, the VA examiner found no additional loss of motion in the thoracolumbar spine.  The November 2012 VA examiner also noted negative findings for IVDS.  These findings do not more nearly approximate the criteria necessary for a higher initial 20 percent disability rating.

Similarly, VA treatment records for the period from October 13, 2011 to December 13, 2017 reflect that while the Veteran complained of back pain, flexion in the thoracolumbar spine was only slightly limited.  See, e.g., March 2015 VA treatment record; November 2017 VA treatment record.

Based on the foregoing evidence, the Board finds that the preponderance of the evidence is against a higher initial rating in excess of 10 percent for the thoracic spine disability for the initial rating period on appeal from October 13, 2011 to December 13, 2017.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7.

5. Rating the thoracic spine disability from December 13, 2017 to September 16, 2019

For the initial rating period on appeal from December 13, 2017 to September 16, 2019, the Veteran is in receipt of an initial 10 percent disability rating for the thoracic spine disability under Diagnostic Code 5242.  38 C.F.R. § 4.71a.  After a review of all the lay and medical evidence of record, the Board finds that, for the rating period from December 13, 2017 to September 16, 2019, the criteria for a higher initial rating of 20 percent, but no higher, for the thoracic spine disability have been more nearly approximated.  A December 2017 private treatment record shows that the Veteran complained of lower back pain and forward flexion of the thoracolumbar spine was measured to 50 degrees, which more nearly approximates the criteria for a higher initial 20 percent rating under Diagnostic Code 5242.  38 C.F.R. § 4.71a.

Based on the foregoing evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the initial rating period on appeal from December 13, 2017 to September 16, 2019, the criteria for a higher initial disability rating of 20 percent under Diagnostic Code 5242 for the thoracic spine disability have been more nearly approximated.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a.

The Board further finds that for the initial rating period on appeal from December 13, 2017 to September 16, 2019, the criteria for a higher initial rating in excess of 20 percent for the thoracic spine disability have not been met or more nearly approximated.  For the rating period from December 13, 2017 to September 16, 2019, the thoracolumbar spine disability has more closely approximated pain and limitation of forward flexion greater than 30 degrees, without ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 30 degrees or less (criteria for a 40 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12 month period (criteria for a 40 percent rating).  As discussed above, a private treatment record from December 2017 reflects the Veteran complained of lower back pain and forward flexion of the thoracolumbar spine was measured to 50 degrees.  Subsequent private treatment records reflect continued complaints of lower back pain, without findings of limitation of forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12-month period.  See e.g., March 2018 private treatment record; March 2019 private treatment record.

For the above reasons, the Board finds that the preponderance of the evidence is against assignment of a higher initial disability rating in excess of 20 percent for the thoracic spine disability for the initial rating period on appeal from December 13, 2017 to September 16, 2019.

6. Rating the thoracic spine disability from September 16, 2019 forward

For the initial rating period on appeal from September 16, 2019 forward, the Veteran is in receipt of an initial 20 percent disability rating for the thoracic spine disability under Diagnostic Code 5242.  38 C.F.R. § 4.71a.  

After a review of all the lay and medical evidence of record, the Board finds that, for the rating period from September 16, 2019 forward, the criteria for a higher initial disability rating in excess of 20 percent for the thoracic spine disability have not been met.  Throughout the rating period on appeal from September 16, 2019 forward, the thoracic spine disability has more closely approximated pain and limitation of forward flexion greater than 30 degrees, without ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 30 degrees or less (criteria for a 40 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12 month period (criteria for a 40 percent rating).

The Veteran underwent a VA examination in September 2019.  Examination revealed forward flexion measured to 55 degrees, with a combined range of motion of 180 degrees in the thoracolumbar spine with pain noted upon examination that causes functional loss.  During the September 2019 VA examination, the Veteran endorsed episodes of flare ups occurring approximately four times per year, with symptoms of increased pain, stiffness, and reduced motion, lasting about two to three days.  The VA examiner found that during episodes of flare ups and following repetitive use, the Veteran would experience increased symptoms such as pain, but without additional loss of motion.  The VA examiner also noted negative findings for IVDS.

The Veteran underwent another VA examination in August 2021, the examination report for which reflects the Veteran reported dull muscle pain and a tingling sensation in the legs.  The Veteran endorsed episodes of flare ups occurring once or twice a week, lasting one to two days, during which the Veteran reported being unable to do much of anything.  Range of motion in the thoracolumbar spine was measured to 60 degrees of flexion, with a combined range of motion of 185 degrees, with pain noted upon examination that does not cause functional loss.  The VA examiner noted negative findings for additional loss of motion following repetitive use or during episodes of flare ups.  Finally, the VA examiner noted positive findings for IVSD but noted the Veteran did not experience any incapacitating episodes of back pain requiring physician ordered bedrest in the past year.

After considering all the evidence, the Board finds that the weight of the evidence demonstrates that the thoracic spine disability has not manifested in ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 30 degrees or less (criteria for a 40 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12 month period (criteria for a 40 percent rating).  The overall disability picture does not demonstrate that the thoracic spine was limited to 30 degrees or less of forward flexion throughout the rating period on appeal from September 16, 2019.  Instead, at worst, the September 2019 VA examiner measured forward flexion was limited to 55 degrees, and the August 2021 VA examiner found forward flexion was limited to 60 degrees.  Neither the September 2019 nor August 2021 VA examiners found additional loss of motion in the thoracolumbar spine following repetitive use or during episodes of flare ups.

For the above reasons, the Board finds that, for the rating period from September 16, 2019 forward, the weight of the evidence is against the assignment of a higher initial disability rating for the thoracic spine disability in excess of 20 percent.  38 U.S.C. § 5107; 38 C.F.R. § § 4.3, 4.7.

Service Connection Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  "Active military, naval, or air service" includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  See 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a),(d); Biggins v. Derwinski, 1 Vet. App. 474, 477 78 (1991).  ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State.  38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1).  Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty.  See Brooks v. Brown, 5 Vet. App. 484, 485 (1993).  VA's General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process.  See VAOPGCPREC 86-90.

Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1).  In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Laypersons are competent to report objective non-medical indicators of illness.

The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  38 C.F.R. § 3.317(e)(1).  Military personnel records show the Veteran served in Iraq from November 2005 to November 2006; therefore, the Veteran is a "Persian Gulf veteran" (i.e., had active military service in the Southwest Asian Theater of operations during the Gulf War) as defined by 38 C.F.R. § 3.317.

A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders that include IBS and dyspepsia) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection.  38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months.  38 C.F.R. § 3.317(a)(2), (3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and 13) menstrual disorders.  38 C.F.R. § 3.317(b).

The evidence shows that the Veteran is currently diagnosed with rosacea, which is not a "chronic disease" under 38 C.F.R. § 3.309(a).  Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms do not apply to the periods of active duty service from July 1989 to October 1989, February 2002 to September 2002, September 2005 to December 2006, and from March 2009 to September 2010.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Presumptive periods do not apply to ACDUTRA or INACDUTRA service.  See Biggins, 1 Vet. App. at 447 78.

7. Service connection for a rash

The Veteran generally asserts that he developed a rash on his forehead during service in 2005 and reemerged in 2010 after his deployment to Afghanistan.  See November 2012 VA examination report.  Initially, the Board finds that the Veteran is currently diagnosed with rosacea.  As the Veteran's skin symptoms have been attributed to clinically diagnosed rosacea, the presumptive service connection provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not for application.

After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the current rosacea did not have its onset during service and is not otherwise etiologically related to active service, including to an injury, disease or event sustained during ACDUTRA service, or to an injury sustained during INACDUTRA service.  Service examination reports show the Veteran's skin was repeatedly found to be clinically normal during active service.  See June 1999 service treatment record; May 2005 service treatment record.  Additionally, the Veteran consistently denied a history or symptoms of a skin disease or rashes on Reports of Medical History and during post-deployment health assessments.  See June 1999 service treatment record; April 2000 service treatment record; May 2005 service treatment record, October 2006 service treatment record.

The weight of the evidence shows that the rosacea had its onset after active service.  The earliest reports of a skin rash appears in a March 2007 private treatment record, which shows that the private provider was unable to determine its etiology.  The Veteran was prescribed an EpiPen.  A March 2007 VA treatment record reflects the Veteran reported he had just returned from Iraq and complained of a mysterious rash that he experienced several times a day.  The Veteran reported that he did not remember experiencing the rash during his deployment to Iraq.

The Veteran underwent a VA examination in August 2021, during which he was diagnosed with rosacea.  Upon examining the Veteran, the VA examiner opined that it is less likely than not that the current rosacea is etiologically related to active service.  The VA examiner explained that there is no known cause for rosacea, but there are multiple known risk factors for developing rosacea such as genetics, environment, diet, temperature exposure, exposure to sun, wind, and exercise.  The VA examiner further stated that a 2005 service examination report noted no skin problems, and given the wide number of factors which could lead to the development of rosacea, it is not possible to conclude that the Veteran's current rosacea is due to his time in service.  The record does not contain any competent medical opinion to the contrary.

Based on the foregoing, the Board finds the weight of the evidence demonstrates that rosacea had its onset after service, and is not etiologically related to an injury, disease, or event during service.  Accordingly, the Board finds that the weight of the evidence is against direct service connection for a skin rash, to include rosacea, and the claim must be denied.

 

 

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Choi, 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.