Citation Nr: 21066736
Decision Date: 11/02/21	Archive Date: 11/02/21

DOCKET NO. 17-50 420A
DATE: November 2, 2021

ORDER

For the period prior to March 30, 2015, entitlement to a disability rating in excess of 20 percent for right shoulder degenerative arthritis and tendonitis and separation is denied.

From March 30, 2015 to April 19, 2016, entitlement to a disability rating of 30 percent for right shoulder degenerative arthritis and tendonitis and separation is granted.

For the period from April 19, 2016, entitlement to a disability rating in excess of 20 percent for right shoulder degenerative arthritis and tendonitis and separation is denied.

Entitlement to a disability rating in excess of 10 percent for bilateral plantar fasciitis/bilateral pes planus is denied.

Entitlement to a disability rating in excess of 10 percent for thoracolumbar strain is denied.

FINDINGS OF FACT

1. For the period prior to March 30, 2015, the preponderance of the evidence indicates that the Veteran's right shoulder rotator cuff disability has not resulted in range of motion limited to midway between his side and shoulder level; there is no evidence of favorable or unfavorable ankylosis of the shoulder joint, impairment of the humerus, or impairment of the clavicle or scapula.

2. For the period from March 30, 2015 to April 19, 2016, the preponderance of the evidence indicates that the Veteran's right shoulder rotator cuff disability resulted in range of motion limited to midway between his side and shoulder level; however, there is no evidence of favorable or unfavorable ankylosis of the shoulder joint, impairment of the humerus, or impairment of the clavicle or scapula.

3. For the period from April 19, 2016 onward, the preponderance of the evidence indicates that the Veteran's right shoulder rotator cuff disability has not resulted in range of motion limited to midway between his side and shoulder level; there is no evidence of favorable or unfavorable ankylosis of the shoulder joint, impairment of the humerus, impairment of the clavicle or scapula, or right shoulder motion limited to 45 degrees or less or midway between the side and shoulder level.

4. Throughout the appeal period, the Veteran's bilateral foot disability is manifested, at worst, by moderate symptoms of pain without evidence of marked deformity, pain on manipulation, swelling on use, or characteristic calluses. While his condition has not been relieved by non-surgical treatment, there is no indication that he has undergone surgical treatment to alleviate his condition or that he has been recommended for such an operation.

5. For the entire period of the appeal, the Veteran's lumbar spine disability, even with consideration of his complaints of pain and other functional loss, was not manifested by forward flexion of the thoracolumbar spine less than 60 degrees, nor was there any evidence of ankylosis; moreover, the condition did not result in incapacitating episodes having a total duration of at least two weeks during any 12-month period. Additionally, the preponderance of the evidence indicates that his radiculopathy was not at least as likely as not due to his active service or secondary to his service-connected back disability.

CONCLUSIONS OF LAW

1. For the period prior to March 30, 2015, the criteria for entitlement to a disability rating in excess of 20 percent for right shoulder degenerative arthritis and tendonitis and separation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes (DC) 5003-5203.

2. For the period from March 30, 2015 to April 19, 2016, the criteria for entitlement to a 30 percent disability rating for right shoulder degenerative arthritis and tendonitis and separation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DCs 5003-5203.

3. For the period from April 19, 2016 onward, the criteria for entitlement to a disability rating in excess of 20 percent for right shoulder degenerative arthritis and tendonitis and separation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DCs 5003-5203.

4. The criteria for entitlement to a disability rating in excess of 10 percent for bilateral plantar fasciitis/bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5269, 5276.

5. The criteria for entitlement to a disability rating in excess of 10 percent for thoracolumbar strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, DCs 5235-5243

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from August 1989 to August 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2015 and September 2017 rating decisions of a VA Regional Office (RO).

The Board notes that the Veteran was granted service connection for a right shoulder scar in an August 2013 rating decision. In September 2013, the Veteran submitted a statement indicating he wanted an increased rating for his right shoulder disability and right shoulder ligament repair residuals; however, he did not explicitly mention his right shoulder scar. In a September 2015 Notice of Disagreement (NOD), the Veteran explicitly listed his claims for increased ratings for his right shoulder and right shoulder scar. This NOD was received more than 12 months after the September 2013 rating decision, however. As the Veteran wishes to pursue review of the rating assigned assigned to his right shoulder scar but has not initiated a timely appeal, this issue is REFERRED to the RO for appropriate development and adjudication.

Finally, the Board notes that in a September 2020 Appellate Brief, the Veteran's representative discussed entitlement to service connection for a lumbar spine disability with benign neoplasms with herniated discs. The Board notes that the Veteran is already service connected for a back disability. However, there is no history in the record of an appeal for service connection for benign neoplasms with herniated discs. Accordingly, the Board will not consider this issue further, but will REFER this matter to the RO for appropriate development and adjudication.

Increased Rating

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 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 general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

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, it should 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 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.").

Hyphenated codes are used when a rating under one code requires use of an additional code to identify the basis for the rating. 38 C.F.R. § 4.27.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has held the provisions of 38 C.F.R. § 4.59 are also not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020).

These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

1. Entitlement to a disability rating in excess of 20 percent for right shoulder degenerative arthritis and tendonitis and separation

The Veteran asserts that his right shoulder disability is more severe than is reflected by his current evaluation.

The Veteran's service-connected right shoulder disability is currently rated 20 percent under DCs 5003-5201. See September 2017 codesheet. The hyphenated code indicates that the Veteran's right shoulder disability is evaluated under DC 5201, which governs limitation of motion of the arm, and DC 5003, which governs degenerative arthritis and directs that the disability be established by X-ray findings and will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The Veteran is right-hand dominant. See January 2015 VA examination for elbow conditions.

Disabilities and injuries of the shoulder are evaluated under DC 5200, 5201, 5202 and 5203. See 38 C.F.R. § 4.71(a). The evidence establishes the Veteran is right-handed, so his right shoulder is rated for impairment of the major upper extremity.

In this regard, the evidence does not demonstrate any ankylosis, any identified impairment of the humerus for either shoulder, or malunion of the clavicle or scapula of the arm or nonunion of the clavicle or scapula without loose movement. See, e.g., January 2015 and April 2016 VA examinations for shoulder conditions. Consequently, DCs, 5200, 5202, and 5203 are inapplicable. As such, an increased rating cannot be assigned under DCs 5200, 5202, or 5203. 38 C.F.R. § 4.71a, DCs 5200, 5202 and 5203. As the Veteran is service-connected for right shoulder degenerative arthritis and tendonitis and separation, and the record reflects limited motion of the shoulder, the Board will consider whether evidence of record warrants the assignment of a higher disability rating for the right shoulder under DC 5201, which contemplates limitation of motion of the arm.

Under 38 C.F.R. § 4.71a, 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. Revisions to this section enacted in Normal range of shoulder flexion and abduction is from zero to 180 degrees, and internal/external rotation is from zero to 90 degrees. 38 C.F.R. § 4.71a, Plate I.

After the February 7, 2021 updates, under DC 5201, a 20 percent rating is warrant for limitation of motion at shoulder level (flexion and/or abduction limited to 90 degrees) and a 30 percent rating for the major arm when motion is limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees).

In order to warrant the next higher 30 percent rating under DC 5201, the medical evidence of record must show the Veteran's right shoulder disability is productive of limitation of arm motion midway between the side and shoulder level, and such is not shown in the record at any time during the appeal period.

In this case, the Veteran filed a claim for his shoulder disability in March 2009.

His VA treatment records consistently reflect complaints and treatment for right shoulder pain throughout the period on appeal.

During the Veteran's September 2009 VA examination for joint conditions, his right shoulder initial range of motion (ROM) measurements were as follows: flexion was to 122 degrees; abduction was to 120 degrees; external rotation was to 90 degrees; and internal rotation was to 90 degrees. After repetitive use testing, there was objective pain but not additional functional limitation.

During the Veteran's July 2013 VA examination for shoulder conditions, the VA examiner noted a diagnosis for right shoulder AC joint separation. His right shoulder initial range of motion (ROM) measurements were as follows: flexion was to 150 degrees, when pain began; abduction was to 145 degrees, when pain began; external rotation was to 75 degrees, when pain began; and internal rotation was to 60 degrees, when pain began. He experienced less movement than normal, incoordination, and pain on movement and palpation. Muscle strength was 4/5 for flexion and abduction.

During the Veteran's January 2015 VA examination for shoulder conditions, the VA examiner noted diagnoses for shoulder strain, rotator cuff tendonitis, right distal clavicle resection. His right shoulder initial range of motion (ROM) measurements were as follows: flexion was to 140 degrees, abduction was not performed due to fear of pain, external rotation was to 90 degrees, and internal rotation was to 90 degrees. The Veteran was unable to perform repetitive-use testing for fear of pain. He experienced less movement than normal, weakened movement, excess fatigability, and pain on movement. Muscle strength was 3/5 for flexion and abduction, and he was positive for a reduction in muscle strength.

In March 2015, the Veteran's VA treatment records reflect that his flexion was to 90 degrees and abduction was to 80 degrees.

In April 2015, the Veteran's VA treatment records reflect the following ROM scores for his right shoulder: flexion was to 85 degrees, abduction was to 83, external rotation was to 47 degrees, and internal rotation was to 52 degrees. Shoulder extension was to 28 degrees. Muscle strength was 4/5 for flexion and abduction, with pain.

During the Veteran's April 2016 VA examination for shoulder conditions, the VA examiner noted he was positive for degenerative arthritis of the right shoulder. His right shoulder initial range of motion (ROM) measurements were as follows: flexion was to 165 degrees, abduction was to 170, external rotation was to 75 degrees, and internal rotation was to 80 degrees. Pain was noted during the examination, but it did not result in functional loss. The Veteran performed repetitive-use testing, and it did not result in additional functional loss. He experienced less movement than normal, weakened movement, excess fatigability, and pain on movement. Muscle strength was 4/5 for flexion and abduction, and he was positive for a reduction in muscle strength.

An additional VA examination was to be scheduled for the Veteran; however, September 2017 correspondence indicates that he refused to schedule any additional VA examinations. As the Veteran has not provided a reason for refusing the VA examination or requested an additional examination, the Board will proceed with adjudication without a more recent VA examination. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.")

The Veteran has consistently asserted that his right shoulder disability is more severe than is reflected by his current disability rating. While the Veteran is competent to observe his right shoulder disability symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his right shoulder disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

For the period prior to March 30, 2015, the Board finds the preponderance of the evidence is against finding that the Veteran's right shoulder disability resulted in limitation of motion to midway between his side and shoulder level. No medical evidence indicates that the Veteran's shoulder was limited to that degree, and his VA examinations support his current 20 percent disability rating.

From March 30, 2015, the date of the first VA treatment record reflecting decreased ROM scores, to April 19, 2016, the date of his most recent VA examination for shoulder conditions, the preponderance of the evidence indicates that the Veteran's right shoulder disability resulted in limitation of motion to between side and shoulder level. In March 2015, the Veteran's VA treatment records reflect that his flexion was to 90 degrees and abduction was to 80 degrees. In April 2015, the Veteran's VA treatment records reflect the following ROM scores for his right shoulder: flexion was to 85 degrees, abduction was to 83, external rotation was to 47 degrees, and internal rotation was to 52 degrees. Shoulder extension was to 28 degrees. There is no evidence that his shoulder disability resulted in limitation of motion to 25 degrees from his side. Based on these facts, the criteria are met for a 30 percent disability staged rating under DC 5201, but no higher. Accordingly, for the period from March 30, 2015 to April 19, 2016, a 30 percent disability rating for the Veteran's right shoulder is granted.

For the period from April 19, 2016, the Board finds the preponderance of the evidence is against granting a rating in excess of 20 percent. The Veteran's April 2016 VA examination and the other medical records do not reflect his right shoulder limitation of motion being worse than at shoulder level. For the period from February 7, 2021 onward, there is no evidence of flexion or abduction limited to 45 degrees or worse. Accordingly, for the period from April 19, 2016 onward, the Veteran's claim for an increased rating is denied.

In reaching the above conclusions, to the extent they are unfavorable, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b).

2. Entitlement to a disability rating in excess of 10 percent for bilateral plantar fasciitis/bilateral pes planus

The Veteran asserts that his bilateral foot disability is more severe than is reflected by his current evaluation.

The Board notes that the Veteran's bilateral foot disability is rated under DC 5276. See September 2017 codesheet. Under DC 5276, bilateral flatfoot warrants a 10 percent evaluation when symptoms present as moderate, with weight-bearing line over or medial to great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent evaluation may be assigned for severe bilateral flatfoot manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, and characteristic callosities. A maximum 50 percent evaluation may be assigned for pronounced bilateral flatfoot manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276.

After the February 7, 2021 updates, Diagnostic Code 5269 was added to cover plantar fasciitis. Diagnostic Code 5269 provides the following ratings: 30 percent for no relief from both non-surgical and surgical treatment, bilateral, 20 percent for no relief from both non-surgical and surgical treatment, unilateral, and 10 percent for otherwise, unilateral or bilateral. Note (1): With actual loss of use of the foot, rate 40 percent. Note (2): If a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable.

In this case, the Veteran submitted a claim for service connection for plantar fasciitis in September 2013.

During his January 2015 VA examination for foot conditions, the VA examiner found that the Veteran was positive for pes planus and plantar fasciitis. He experienced chronic pain in his feet throughout the day, but the pain was worst in the morning. He used inserts in his shoes daily, but they did not relieve his pain. The Veteran had pain on use of his feet, including weight-bearing and non-weight-bearing. There was also pain during manipulation, but it was not accentuated during manipulation. There was no swelling on use or characteristic calluses. He was negative for extreme tenderness of the plantar surface of his feet, objective evidence of marked deformity, inward bowing or spasm of the Achilles' tendon, and marked pronation. He was positive for decreased longitudinal arch height in his left foot. The examiner indicated that the condition's severity was moderate for both feet.

During his February 2016 VA examination for foot conditions, the VA examiner found that the Veteran was positive for pes planus and plantar fasciitis. He experienced chronic pain in his feet throughout the day, but the pain was worst in the morning, but he did not report flare-ups. He used inserts in his shoes daily, but they did not relieve his pain. The Veteran had pain on use of his feet, but it was not accentuated. There was also pain during manipulation, which was accentuated during manipulation. There was no swelling on use or characteristic calluses. He was negative for extreme tenderness of the plantar surface of his feet, objective evidence of marked deformity, inward bowing or spasm of the Achilles' tendon, and marked pronation. The Veteran claimed he had heel spurs, but the examiner found no evidence of heel spurs during the examination or in the Veteran's medical records. He was positive for decreased longitudinal arch height in both feet.

An additional VA examination was to be scheduled for the Veteran. However, September 2017 correspondence indicates that he refused to schedule any additional VA examinations. As the Veteran has not provided a reason for refusing the VA examination or requested an additional examination, the Board will proceed with adjudication without a more recent VA examination. See Wood v. Derwinski, supra.

The Veteran has consistently asserted that his bilateral foot disability is more severe than is reflected by his current disability rating. While the Veteran is competent to observe his disability symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his bilateral foot disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Overall, the evidence of record is negative for evidence of symptoms consistent with a higher disability rating for symptoms that are more than moderate in degree. While the September 2017 VA examination report indicates that the Veteran had pain accentuated on manipulation of the feet, he did not have pain accentuated during use of the feet. The Veteran was negative for the other symptoms described in the criteria for a 30 percent rating under DC 5276, such as marked deformity, swelling on use, or characteristic calluses. Based on these facts, the Board finds that the Veteran's bilateral foot disability's severity is most consistent with the criteria for a 20 percent rating, rated as pes planus. 

Additionally, for the period from February 7, 2021, the Board also finds that the Veteran has not met the criteria for a higher disability rating under DC 5269 for plantar fasciitis. That code provides 30 percent for no relief from both non-surgical and surgical treatment, bilateral. While the record indicates that the Veteran's plantar fasciitis has not been relieved by orthotic inserts, there is no indication that he has undergone foot surgery to relieve his condition or been recommended for such a procedure. Based, on these facts, the Board finds that the preponderance of the evidence is against granting an increased rating under DC 5269.

Accordingly, his claim for an increased rating for a bilateral foot disability is denied. 38 U.S.C. § 5107(b).

3. Entitlement to a disability rating in excess of 10 percent for thoracolumbar strain

The Veteran asserts that his back disability is more severe than is reflected by his current evaluation.

Spine disorders are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DCs, 5235-5243.

Pertinent to the thoracolumbar spine, the General Rating Formula 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, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a 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, a 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 with forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5242).

In this case, there is no evidence that the Veteran has had a diagnosis for IVDS or has had physician-prescribed bedrest at any point, as contemplated by Diagnostic Code 5243. There is also no indication of traumatic paralysis, addressed by the newly enacted Diagnostic Code 5244. Therefore, the Board will confine its analysis to the aforementioned General Rating Formula for Diseases and Injuries of the Spine.

The Veteran filed claim for service connection for a back disability in March 2009 and September 2013.

The Veteran's VA treatment records reflect consistent treatment for chronic back pain but are negative for symptoms or evidence of limitation of range of motion consistent with a higher disability rating.

December 2014 VA treatment records indicate that the Veteran had not experienced radicular symptoms in many years.

During the January 2015 VA examination for back conditions, the Veteran was diagnosed with thoracolumbar strain. He did not report flare-ups of his condition. His initial range of motion (ROM) measurements were as follows: forward flexion to 90 degrees or greater, with pain at 90 degrees or greater; extension to 20 degrees, with painful motion beginning at 10 degrees; right and left lateral flexion and right and left lateral rotation were all to 30 degrees or greater, with painful motion beginning at 30 degrees or greater. After repetitive-use testing, forward flexion was to 80 degrees, extension was to 15 degrees, and the other forms of motion remained the same. His symptoms included decreased and weakened movement, excess fatigability, incoordination, pain on movement, and interference with sitting and standing. He was positive for guarding, but it was not severe enough to interfere with his gait or spinal contour. Muscle strength was 5/5 for all forms of motion. The Veteran was negative for radiculopathy, IVDS, and other neurologic abnormalities.

In an April 2016 VA addendum medical opinion, the VA examiner opined that the Veteran's radiculopathy was less likely than not related to his service-connected back disability. Their rationale was based on the Veteran's first documented treatment for radiculopathy occurring between 2012 and 2014. There was no evidence of radiculopathy during service. The examiner also noted that a September 2012 MRI was normal, and there was no medical evidence that his back disability had caused his radiculopathy.

Service connection for radiculopathy was denied in a May 2016 rating decision. The Veteran did not appeal this decision.

An additional VA examination was to be scheduled for the Veteran. However, September 2017 correspondence indicates that he refused to schedule any additional VA examinations. Evidence from this examination might have provided greater information as to the severity of the underlying spine disorder, as well as any associated objective neurological abnormalities. However, as the Veteran has not provided a reason for refusing the VA examination or requested an additional examination, the Board will proceed with adjudication without a more recent VA examination. See Wood v. Derwinski, supra.

The Veteran has consistently asserted that his back disability is more severe than is reflected by his current evaluation. While the Veteran is competent to observe his back disability symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his back disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Board finds the preponderance of the evidence is against the Veteran's claim. No medical evidence of record indicates that the Veteran's back disability has a resulted in 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. The record is also negative for neurologic abnormalities related to the underlying disorder, IVDS, and ankylosis. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim. Accordingly, the claim for an increased rating for the Veteran's back disability is denied.

The Board has also considered whether a separate evaluation is warranted for radiculopathy, associated with the Veteran's back disability. The Veteran was negative for radiculopathy in his January 2015 VA examination. Additionally, the Board notes that the April 2016 VA examiner opined that the Veteran's radiculopathy was less likely than not related to his back disability, and its onset was between 2012 and 2014. The Veteran's STRs are negative for treatment for radiculopathy, and the only mention of radiculopathy in his VA treatment records is in December 2014, when it is noted that he has not experienced radicular symptoms in years. As the Veteran refused to attend an additional VA examination, the Board must consider the issue with the evidence currently of record, which is devoid of findings suggesting any secondary relationship. Based on these facts, the Board finds that there is insufficient evidence to conclude that the Veteran experiences radiculopathy that is at least as likely as not related to service or secondary to his back disability. As such, no separate evaluations may be assigned. 

Overall, the claim must be denied. As the preponderance of the evidence is against the Veteran's claim, VA's benefit of the doubt doctrine is not applicable in this matter. 38 U.S.C. § 5107(b).

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran meets the criteria for schedular consideration for entitlement to individual unemployability throughout the period on appeal. See September 2017 codesheet. That said, the Veteran's December 2015 VA examination for mental health conditions indicates that he retired from the military in 2009, began working fulltime after that, and was working at the time of the examination. Additionally, August 2009 and April 2015 VA treatment records indicate that the Veteran has generally maintained full-time employment. Based on these facts, the Board does not find that a claim for individual unemployability has been raised by the record.

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Hicks, 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.