Citation Nr: 21069299
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 16-05 785A
DATE: November 18, 2021

ORDER

Entitlement to an increased rating in excess of 10 percent for hypertension is denied.

Entitlement to a 10 percent rating, and no greater, for left eye pterygium with dry eye syndrome is granted.

Entitlement to a 10 percent rating, and no greater, for right wrist ganglion cyst with painful motion, prior to June 13, 2019 is granted.

Entitlement to an increased rating in excess of 10 percent right wrist ganglion cyst with painful motion, from June 13, 2019, is denied.

Entitlement to a rating of 20 percent, and no greater, for lumbar spine intervertebral disc syndrome (IVDS), prior to August 8, 2016, is granted.

Entitlement to a 40 percent rating, and no greater, for IVDS from August 8, 2016 is granted.

Entitlement to a separate 10 percent rating for right lower extremity radiculopathy, from December 30, 2013, is granted.

Entitlement to an increased rating in excess of 20 percent for left shoulder disability prior to June 1, 2012 is denied.

Entitlement to a rating of 30 percent for left shoulder disability from June 1, 2012 is granted.

Entitlement to an increased rating in excess of 20 percent for right shoulder disability prior to June 1, 2012 is denied.

Entitlement to a 40 percent rating, and no greater, for right shoulder disability, from June 1, 2012, is granted.

Entitlement to a rating of 60 percent for right shoulder disability from April 1, 2014 is granted.

Entitlement to total disability based on individual unemployability (TDIU) is moot.

FINDINGS OF FACT

1. For the period on appeal, the Veteran's hypertension did not manifest in diastolic readings of predominantly 110 or more, or systolic readings of predominantly 200 or more.

2. Prior to the period on appeal, the Veteran's left eye pterygium was surgically removed, without recurrence.  His visual acuity has been 20/40 or better since removal.  He does not have scar or recurrence that would meet any characteristic s of disfigurement.  He had dry eye syndrome following surgery with an objective finding of delated tear break up time. 

3. For the period prior to June 13, 2019, the severity of the Veteran's right wrist ganglion cyst manifested as limited range of motion without ankylosis.

4. For the period from June 13, 2019, the severity of the Veteran's right wrist ganglion cyst manifested as limited range of motion without ankylosis.

5. Resolving reasonable doubt in the Veteran's favor, prior to August 8, 2016, the Veteran's IVDS resulted in forward flexion greater than 30 degrees, but not greater than 60 degrees. 

6. From August 8, 2016, the Veteran's IVDS resulted in forward flexion to less than 30 degrees.

7. The Veteran's IVDS did not result in incapacitating episodes of at least 6 weeks in a 12-month period, nor did it manifest in ankylosis of the thoracolumbar spine.

8. From December 30, 2013, the Veteran's lumbar spine resulted in right lower extremity radiculopathy that manifested in no more than mild incomplete paralysis. 

9. Prior to June 1, 2012, the Veteran's left shoulder disability manifested in motion limited at shoulder level. 

10. Resolving reasonable doubt in the Veteran's favor, from June 1, 2012, the Veteran's left shoulder disability manifested in motion limited to 25 degrees from side.

11. Prior to June 1, 2012, the Veteran's right shoulder disability manifested in motion limited at shoulder level.

12. From June 1, 2012, the Veteran's right shoulder disability manifested in motion limited to 25 degrees from side

13. Following right shoulder replacement, the Veteran had chronic residuals consisting of severe, painful motion or weakness in the affected extremity.

14. The Veteran reported on his TDIU claim forms that he was last employed on September 15, 2013.  He is currently in receipt of a temporary total (100 percent) rating from February 6, 2013 to April 1, 2014, with special monthly compensation for that period as well.  With this decision, he is in receipt of a combined schedular 100 percent rating from April 1, 2014.

CONCLUSIONS OF LAW

1. The criteria for rating in excess of 10 percent for hypertension have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.104, DC 7101.

2. The criteria for a 10 percent rating, and no greater, for left eye pterygium with dry eye syndrome have been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, DCs 6034, 6018.

3. The criteria for a 10 percent rating, and no greater, for right wrist ganglion cyst with painful motion, prior to June 13, 2019, have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DCs 7819-5215.

4. The criteria for a rating in excess of 10 percent right wrist ganglion cyst with painful motion, from June 13, 2019, have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DCs 7819-5215.

5. The criteria for of 20 percent, and no greater, for lumbar spine IVDS prior to August 8, 2016 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243.

6. The criteria for a 40 percent rating for IVDS from August 8, 2016 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243.

7. The criteria for a rating in excess of 40 percent for IVDS have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243.

8. The criteria for a separate 10 percent rating for right lower extremity radiculopathy, from December 30, 2013, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520.

9. The criteria for a rating in excess of 20 percent for left shoulder disability prior to June 1, 2012 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5201.

10. The criteria for a 30 percent rating for left shoulder disability from June 1, 2012 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5201.

11. The criteria for a rating in excess of 20 percent for right shoulder disability prior to June 1, 2012 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5201.

12. The criteria for a 40 percent rating for right shoulder disability, from June 1, 2012 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5201.

13. The criteria for a 60 percent rating for right shoulder disability from April 1, 2014 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5051.

14. The issue of entitlement to TDIU is moot.  38 U.S.C. § 1155; 38 C.F.R. § 4.16. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army National Guard from November 1978 to March 1979, and October 2006 to March 2008.

These matters come before the Board of Veterans' Appeals (Board) on appeal from May and June 2012 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  Here, the Veteran has expressly raised the issue of entitlement to TDIU by submitting several TDIU claim forms and repeatedly noting that his service-connected disabilities rendered him unemployable. 

Increased Rating

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).

1. Entitlement to a rating in excess of 10 percent for hypertension is denied.

The Veteran is seeking a rating in excess of 10 percent for hypertension.

For VA purposes, hypertension or isolated systolic hypertension means that the diastolic blood pressure is predominantly 90 or more, or the systolic blood pressure is predominantly 160 or more with a diastolic blood pressure of less than 90.  38 C.F.R. § 4.104, DC 7101 at Note (1).  For hypertension to be considered compensably disabling at 10 percent, the evidence must show that the diastolic blood pressure is predominantly 100 or more, or the systolic blood pressure is predominantly 160 or more, or shows a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  38 C.F.R. § 4.104, DC 7101.  A 20 percent disability rating is assigned for diastolic readings of predominantly 110 or more, or systolic readings of predominantly 200 or more.  A 40 percent disability rating is assigned for diastolic readings of predominantly 120 or more.  A 60 percent disability rating is assigned for diastolic readings of predominantly of 130 or more.  38 C.F.R. § 4.104, DC 7101. 

The Board may factor the ameliorative effects of blood pressure medication into its analysis of claims for increased ratings for hypertension because DC 7101 expressly mentions the effect of hypertension medications.  See McCarroll v. McDonald, 28 Vet. App. 267, 276-77 (2016). 

The Board notes that word "predominantly" is not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6.

In evaluating the evidence in any given appeal, it is the responsibility of the Board to make appropriate determinations of (a) competence; (b) credibility; and (c) weight.  Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Medical opinions are deemed competent since they are from medical professionals.  38 C.F.R. § 3.159(a)(1).

In a January 2021 statement, the Veteran argued for entitlement to a rating in excess of 10 percent for his hypertension because his "active duty medical records clearly showed that [his] systolic blood pressure was 220 and [his] diastolic blood pressure was 110."

The Board notes that an October 2008 rating decision granted entitlement to service connection for hypertension and provided an initial rating.  The current claim is on appeal from a September 22, 2010 increased rating claim.  As such, the current period on appeal is from September 22, 2010 to the present.

The Veteran participated in a VA hypertension examination on February 25, 2011.  At that time, he reported that his blood pressure was controlled with medications (HCZ 12.5 mg and Lisinopril 10 mg).  He denied hospitalizations due to uncontrolled hypertension.  At the time of the examination, his blood pressure was 136/83, 124/86, and 122/86.  

VA treatment records contain a number of blood pressure readings over the year.  The Board will cite some of them for reference.  On February 6, 2013, he had the following blood pressure readings: 131/74, 120/75, 141/89.  On December 5, 2013, his blood pressure was 119/77.  On June 2, 2014, his blood pressure was 124/80.  On December 13, 2015, his blood pressure was 137/96.  His VA treatment records included that his hypertension was "controlled."

The claims file includes SSA records from March 26, 2014.  On January 22, 2014, the Veteran underwent a musculoskeletal evaluation in support of his SSA claim.  At the time of that evaluation his blood pressure was 161/111.  

An August 8, 2016 VA general medical examination included blood pressure readings of 117/72, 115/69, and 114/70.  An October 26, 2016 VA treatment record showed blood pressure of 114/77.  A January 10, 2017 record showed blood pressure of 106/73.  On January 26, 2017, he had two blood pressure readings of 128/80, 131/89.  An October 17, 2017 record showed blood pressure of 125/85.  Blood pressure readings in February 2018 were 132/88 and 107/67.

A June 13, 2019 hypertension disability benefits questionnaire included that the Veteran was diagnosed with hypertension in 2008.  His hypertension has been controlled since onset, with no symptoms.  He was on HCTZ 25 mg and an ace inhibitor.  His blood pressure readings on evaluation were 118/84, 122/86, and 122/84, with an average reading of 120/84.  

VA treatment records included the additional blood pressure readings of 125/82 (January 3, 2020), 134/82 (December 11, 2019), 120/85 (April 4, 2019), and 122/76 (October 31, 2018). 

A February 1, 2021 VA treatment record included the Veteran's report of regular normal blood pressure at home.

A March 24, 2021 hypertension examination included the Veteran's report that his hypertension was managed and controlled with medications, but "sometimes he has episodes when blood pressure increases a little."  He was consistent with taking his blood pressure medication.  He was on HCTZ 12.5/Lisinopril 10 mg to control his hypertension.  He had a history of diastolic blood pressure elevation to predominantly 100 or more, with his last episode 1 or 2 weeks prior.  On the day of the examination, his blood pressure readings were: 133/96, 150/104, and 157/104.  Regarding functional impact, the Veteran reported episodes of headache, and blood pressure elevation, when he forgets to take his medication early in the morning, or when in a stressful situation.

The Board reviewed the treatment records, and only cited some of the blood pressure readings contained in the file.  The only cited blood pressure reading which meets the criteria for a 20 percent rating is from the January 2014 SSA evaluation.  The Board attempted to find additional blood pressure readings wherein the Veteran's diastolic pressure was 110 or more or his systolic pressure was 200 or more, but was unable to locate any other blood pressure readings from January 2010 to the present.  As such, the Board does not find that the Veteran's hypertension has resulted in diastolic pressure that was predominantly 110 or more, or systolic pressure predominantly 200 or more.  A single blood pressure reading of 161/111 does not show that his diastolic pressure was "predominantly" 110 or more.  The Board finds that entitlement to a rating in excess of 10 percent for hypertension is not warranted. 

2. Entitlement to a compensable rating for left eye pterygium with dry eye syndrome is denied.

The Veteran is seeking a compensable rating for his service-connected left eye pterygium.  The Board as added the additional condition of dry eye syndrome based on VA examination findings.  On a January 2021 statement, the Veteran argued that "VA failed to address that this condition occurred while on active duty," and he argued in favor of entitlement to service connection.  The Board notes that the condition is service-connected; therefore, VA has acknowledged that it began on active duty.  

During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018).  The final rule went into effect May 13, 2018.

Under the prior version of DC 6034, pterygium was to be evaluated based on visual impairment, disfigurement (diagnostic code 7800), conjunctivitis (diagnostic code 6018), etc. depending on the particular findings.

Under the revised version of DC 6034, pterygium is to be evaluated under the General Rating Formula for Diseases of the Eye (rating based on visual impairment or incapacitating episodes, whichever is higher), disfigurement (diagnostic code 7800), conjunctivitis (diagnostic code 6018), etc., depending on the particular findings, and combine in accordance with § 4.25.

Both the former and revised criteria provide for consideration of visual impairment.  The amendments made no substantive changes to how visual acuity is rated. 

During a February 25, 2011 eye examination, the Veteran was noted to have undergone left eye pterygium surgery in July 2007.  His corrected distance vision was 20/15-1 right and 20/15 left.  It was noted that his decreased vision was caused by his refractive error.  He complained of occasional bilateral dry eye sensation in the past 2 to 3 years.  He denied ocular pain.  He did not have diplopia or visual field defect.  On evaluation, the Veteran had a right nasal pinguecula, but his left eye conjunctiva was clear.  There was no recurrence of the Veteran's left pterygium.  He had "poor tear meniscus" of both eyes.  He had floaters in his vitreous.  He was diagnosed with refractive error, right nasal pinguecula, mild dry eyes, and no recurrent pterygium noted in his left eye. The examiner noted that the Veteran's symptoms (dry eye sensation) were a result of mild dry eyes.

An October 30, 2015 VA eye note showed the Veteran had dry eye and refractive error.  There were no other findings on evaluation.

An August 8, 2016 General Medical examination showed his corrected distance vision was 20/20 bilaterally.

A November 5, 2018 VA eye note again assessed the Veteran with dry eye and refractive error.  No other abnormal findings were noted.

A June 18, 2019 VA eye disability benefits questionnaire diagnosed the Veteran with bilateral dry eyes.  He was service-connected for left pterygium.  He reported a symptom of "dryness" which he treated with eye drops.  His corrected distance vision was 20/20 or better.  He did not have diplopia.  Slit lamp evaluation showed tear break up time of 3 seconds in each eye, otherwise normal.  Internal eye examination was normal throughout.  He did not have visual field defect.  The examiner found that the Veteran did not have a disorder of the lacrimal apparatus.  He had bilateral dry eye syndrome, which he reported had onset in 2007.  He had no treatment for his dry eye syndrome.  The Veteran did not have a decrease in visual acuity or other visual impairment attributable to dry eye syndrome.  He did not have scarring or disfigurement, or incapacitating episodes due to an eye condition.  The examiner found that the Veteran's dry eye was a progression of his service-connected pterygium.  "Studies have found that the change of the tissue composition in the pterygium caused increased evaporation of the lacrimal film, leaving the eye dry."  The examiner additionally noted the Veteran's pterygium had resolved via surgical removal in 2007, without recurrence.

As the pterygium was removed without recurrence and without scarring, a compensable rating under DC 7800 for scarring or disfigurement is not warranted.

Under DC 6018 (chronic conjunctivitis) former criteria, an active disease process (with objective findings, such as red, thick conjunctivitae, mucous secretion, etc.) is assigned a 10 percent rating.  

Under the revised criteria, an active disease process is rated pursuant to the General Rating Formula for Diseases of the Eye, with a minimum rating of 10 percent. 

For an inactive disease process, both the former and revised criteria instruct to evaluate based on residuals, such as visual impairment and disfigurement (DC 7800).

Here, the Veteran's only objective finding is decreased tear break up time.  The Board will provide the Veteran with a 10 percent rating under DC 6018 due to an objective finding associated with dry eye syndrome, rated analogous to active conjunctivitis.

A greater rating is not warranted as the Veteran did not have visual impairment due to his resolved left pterygium or residual dry eye.

Joints and Spine

When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must consider the extent to which a veteran may have additional functional impairment beyond the limitation of motion objectively demonstrated, such as when the symptoms are most prevalent due to the extent of the pain and painful motion, weakness, premature or excess fatigability, and incoordination.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  

The rating schedule is intended to recognize actually painful, unstable, or malaligned joints due to healed injury as entitled to at least the minimum compensable rating for the joint.  See 38 C.F.R. § 4.59.  Application of 38 C.F.R. § 4.59 is not limited to cases of painful motion in which there is a finding of arthritis.  See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).  Case law and VA guidelines anticipate that VA examiners will use information procured from relevant sources, including lay statements, to estimate additional functional loss during flare-ups of musculoskeletal disability.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).

3. Entitlement to a 10 percent rating, and no greater, for right wrist ganglion cyst with painful motion, prior to June 13, 2019, is granted.

4. Entitlement to a rating in excess of 10 percent right wrist ganglion cyst with painful motion, from June 13, 2019, is denied.

The Veteran is currently in receipt of staged ratings for his right wrist ganglion cyst; a noncompensable rating prior to June 13, 2019, and a 10 percent rating thereafter.  With this decision, the Board is providing a 10 percent rating for the entire period on appeal, and finds that a rating in excess of 10 percent is not warranted.

DC 7819 applies to benign skin neoplasms and directs that the disability at issue be rated based on limitation of function.  38 C.F.R. § 4.118, DC 7819.

DC 5215 assigns a maximum 10 percent rating for limitation of motion of the wrist.  38 C.F.R. § 4.71a, DC 5215.  Without ankylosis, a rating in excess of 10 percent under DC 5214 is not warranted.  38 C.F.R. § 4.71a, DC 5214.

The Veteran's right hand is his dominant hand.  The Veteran alleged he was entitled to an increased rating for his right wrist because he had his "wrist problem long before June 2019."  He stated that his wrist was on appeal from a noncompensable rating assigned in a 2008 rating decision, and therefore, his 10 percent rating should be provided from 2008.  He also noted that his medical records "clearly show that [he had] ankylosis of [his] wrist favorable to 20 to 30 degrees dorsiflexion."  The Board notes that the Veteran is service connected for his right ganglion cyst from an initial 2008 effective date; however, the current increased rating claim is on appeal from a September 22, 2010 increased rating claim date.  As such, the increased 10 percent rating provided in this decision is provided from September 22, 2010.

During a February 2, 2011 VA joint examination, the Veteran requested an increased rating for his right wrist ganglion cyst due to "progression of condition."  He had right wrist pain at the time of the examination.  He did not report flare-ups of joint symptoms.  He had bilateral wrist dorsiflexion to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees.   There was no objective evidence of pain following repetitive motion. There was no limitation of motion following repetitive testing.

There are limited treatment records which directly or indirectly address the Veteran's right wrist.  A February 8, 2016 physical therapy for the right elbow note included the Veteran's report of discomfort in his right wrist and fingers and extensors muscles group (dorsal aspect), persisted sensitive to deep palpation, especially at the proximal level.  His right hand grip strength was 65 lbs. and 45 lbs. left.  

A January 27, 2016 right elbow physical therapy note included that the Veteran's active range of motion of both wrists were "within normal limits."

A July 11, 2017 primary care treatment record included the Veteran's complaint of "episodes of bilateral wrist pain, on and off."  His bilateral wrist pain was mild to moderate osteoarthritis.  He reported good response to his pain from Meloxicam.  

On June 13, 2019, the Veteran participated in a wrist disability benefits questionnaire.  He was assessed with a right wrist ganglion cyst measuring 4 to 5 mm, and unchanged in size over the years.  He described mild, intermittent pain due to his cyst.  He denied flare-ups of wrist symptoms.  He did not report any functional impairment or loss.  Range of motion testing of the right wrist showed full/normal range of motion throughout.  He had objective pain with palmar flexion, but it did not result in or cause functional loss.  He had mild pain on the palmar surface of the wrist over the cyst.  There was no pain with weightbearing.  He was able to perform repeat range of motion testing without loss of range of motion.  The Veteran was not being examined immediately after repetitive use over time; however, the examiner found that pain, weakness, fatigability and incoordination did not significantly limit functional ability with repeated use over time.  The examiner noted "no loss of [range of motion] expected with repeated use."  The examiner noted that the Veteran had not reported flare-ups so an estimation of loss during a flare-up was not possible.  He had full (5/5) muscle strength in both wrists.  He did not have muscle atrophy or ankylosis of the right wrist joint.  There was no objective evidence of pain on nonweight bearing.  His passive range of motion was the same as his active range of motion.

A September 2020 rating decision granted an increased 10 percent rating for right wrist ganglion cyst due to painful motion of wrist.

A November 24, 2020 VA wrist examination diagnosed right wrist ganglion cyst.  The Veteran reported that his condition at worsened.  He reported weekly flare-ups of right wrist symptoms, lasting hours.   The functional impact of his right wrist ganglion cyst was "loss of hand grip strength."  His range of motion was palmar flexion to 40 degrees, dorsiflexion to 50 degrees, ulnar deviation to 35 degrees, and radial deviation to 10 degrees.  His range of motion was limited due to pain.  He had objective pain with palmar flexion and dorsiflexion.  There was evidence of pain with weightbearing.  There was localized tenderness of the ventral aspect.  His left wrist range of motion was normal throughout.  His right wrist was not examined immediately after repeated use over time or during a flare-up, but the examination was medically consistent with the Veteran's report of functional loss during both.  However, the examiner selected that pain, weakness, fatigability or incoordination did not significantly limit his functional ability and therefore the examiner did not estimate any additional loss of motion after repeated use or during a flare-up.  His right wrist had decreased flexion and extension strength (4 out of 5), with a reduction in muscle strength due to his ganglion cyst.  His left wrist had normal strength.  There was no muscle atrophy and no ankylosis. 

The Veteran again participated in a VA wrist examination on April 22, 2021.  He had a soft tissue mass at the wrist level with daily pain at the wrist with limited range of motion.  He had "poor response" to pain medications.  He avoided carrying heavy objects due to his wrist pain.  He did not report flare-ups of wrist pain.  He described functional loss following repeated use of his right wrist as "can't carry heavy objects."  On range of motion testing, he had dorsiflexion to 35 degrees, palmar flexion to 45 degrees, ulnar deviation to 25 degrees, and radial deviation to 20 degrees.  He had objective pain with dorsiflexion, ulnar deviation, and palmar flexion.  He had passive range of motion of dorsiflexion to 55 degrees, palmar flexion to 40 degrees, ulnar deviation to 30 degrees, and radial deviation to 20 degrees.  He had objective pain on passive range of motion in all directions.  He had objective pain with weightbearing and active range of motion as well.  He had tenderness to palpation at the right wrist volar area near the cyst, located below the thenar eminence.  He was able to perform repeat range of motion testing without loss of range of motion.  Range of motion of his left wrist was normal throughout.  The Veteran was not examined immediately after repeated use over time, but evidence suggested pain significantly limited functional ability with repeated use over time.  The examiner estimated the following range of motion after repeated use over time: dorsiflexion to 25 degrees, palmar flexion to 30 degrees, ulnar deviation to 20 degrees, and radial deviation to 15 degrees.  He did not have muscle atrophy or ankylosis of the wrist.  He had no prior surgical history.  The functional impact of his ganglion cyst was described as "limited for occupational tasks that require repetitive movements of the wrist joint."

Here, as the Veteran has stated that his wrist pain has been present throughout the appeal period, and did not "begin" in 2019, and available medical evidence additionally suggests right wrist pain prior to 2019, the Board will provide a 10 percent rating for his right wrist ganglion cyst prior to June 13, 2019.  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).

DC 5215 provides a maximum 10 percent evaluation where the wrist manifests palmar flexion limited in line with the forearm, or dorsiflexion of less than 15 degrees.  38 C.F.R. § 4.71a, DC 5215.  Normal palmar flexion is to 80 degrees and normal dorsiflexion is to 70 degrees. 38 C.F.R. § 4.71, Plate I.  Thus, the Board notes that the Veteran is already in receipt of the maximum available rating under Diagnostic Code 5215 for the residuals of his right wrist ganglion cyst.

Therefore, the Board will consider whether the Veteran is entitled to a higher disability rating for his right wrist ganglion cyst under another applicable DC.

Under DC 5214, the only other DC relevant to the wrist, a 30 percent rating is warranted for favorable ankylosis of the major (dominant) wrist in 20 to 30 degrees of dorsiflexion.  A 40 percent rating is warranted for any other position, except favorable of the major wrist; and a maximum 50 percent rating requires unfavorable ankylosis of the major wrist in any degree of palmar flexion or with ulnar or radial deviation. 

Although the Veteran argued that medical evidence showed that he had wrist ankylosis between 20 and 30 degrees, the Board was unable to find evidence to support this assertion.  The above cited records, including two recent examinations, noted that the wrist continued to have movement, and the 2021 examiner estimated additional loss of motion, but continued motion, during a flare-up.  As such, the record does not indicate ankylosis, or even symptoms that more nearly approximate ankylosis when considering functional impact.

A rating in excess of 10 percent is not shown based on limitation of motion of the right wrist.  The Veteran has complained of decreased grip strength, and was noted to have decreased (4/5) strength during the examination.  However, this would not warrant a separate compensable rating under a muscle diagnostic code.  The Veteran's symptoms are limited to subjective decreased grip strength, and 4/5 wrist strength on testing.  Muscle Group IX addresses the forearm muscles used in grasping and the intrinsic muscles of the hand, and provides a noncompensable rating for slight disability.  The Veteran is able to grasp and lift, and perform activities of daily living and the record does not indicate he has difficulty moving any of his fingers.  As such, a compensable muscle rating is not warranted.

5. Entitlement to a rating of 20 percent, and no greater, for lumbar spine intervertebral disc syndrome (IVDS) prior to August 8, 2016 is granted.

6. Entitlement to a 40 percent rating, and no greater, for IVDS from August 8, 2016 is granted.

7. Entitlement a rating in excess of 40 percent for IVDS from October 6, 2020 is denied.

8. Entitlement to a separate 10 percent rating for right lower extremity radiculopathy, from December 30, 2013, is granted.

The Veteran is seeking increased ratings for his service-connected lumbar disability.  On his January 2021 statement, the Veteran argued that his medical records clearly showed that his back condition was chronic and severe.  He had a right L5 epidural steroid injection due to his severe lumbar radiculopathy.  He stated that the pain in his low back occasionally radiated down his right leg, with associated numbness and tingling.  He argued that his records showed his back had worsened, and that he had 7 weeks of bedrest in the year 2016. 

The Board reviewed the claims file, and was unable to find a record of the Veteran's treatment by a physician for his lumbar spine with prescribed bedrest, or similar manifestation of lumbar spine disability.  The VA treatment records from 2016 included left shoulder complaints, left shoulder surgery in November 2016, and physical therapy thereafter.  His 2016 records also included complaints of ongoing neck pain.  He participated in several VA examinations in August 2016.  The Board was unable to locate any 2016 records which indicated lumbar spine IVDS manifesting in incapacitating episodes.

The Veteran's lumbar spine degenerative disc disease is rated under 38 C.F.R. § 4.71a, DC 5243.  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

Prior to August 8, 2016

A February 28, 2011 spine examination report revealed that the Veteran had bulging disc of L3-4 producing mild stenosis of the spinal canal.  He complained of progression of his condition with complaints of occasional low back pain (stabbing and pressure-like sensation without irradiation).  He reported flare-ups of back pain every 2 weeks, of moderate severity, lasting "hours."  Precipitating factors for flare-ups were running and prolonged seated position.  He denied incontinence, paresthesias, leg/foot weakness, or numbness.  He had symptoms of spasm and spine pain.  The pain was stabbing/pressure-like pain of a mild severity.  There were no incapacitating episodes of spine condition.  He was limited to walking 1 to 3 miles.  His gait and spinal contour were both normal.  He had objective spasm, pain with motion and tenderness.  Range of motion testing showed flexion to 80 degrees, extension to 25 degrees, left lateral flexion to 26 degrees, left lateral rotation to 30 degrees, right lateral flexion to 26 degrees, and right lateral rotation to 30 degrees.  There was no objective pain or additional limitation of motion following repeat range of motion testing.  He had normal deep tendon reflexes at the knee, and hypoactive reflexes at the ankles.  He had normal sensorial evaluation of both lower extremities.  His motor evaluation was normal throughout the upper and lower extremities.  He had increased absenteeism at work due to his back disability.  

A February 22, 2013 VA physical therapy record included that the Veteran had chronic low back pain without neurologic deficits.

During an August 8, 2013 VA physical therapy session, the Veteran complained of low back pain "that does not go away.  Bending, brisk movement and moving in bed will cause more pain."  His pain was constant, more on the right side, and into both hips.  The lumbar spine active range of motion was "markedly decreased flexion, extension, side-gliding and with all" range of motion, the Veteran felt pain.  He also had pain with hip flexion.  He was assessed with chronic low back pain without neurologic deficits, and with more deconditioning.  

A November 1, 2013 physical therapy record included the Veteran's report that physical therapy alleviated pain only while he was getting treatment.  His deep tendon reflexes were symmetric knees and ankles.  He had negative straight leg raise.  He had a normal gait.  He was assessed with chronic low back pain without neurologic deficits and with more deconditioning.  "Chronic pain expected."

On December 30, 2013, the Veteran was seen for a chief complaint of low back pain.  He had constant, localized right lower back pain with occasional radiation down his right leg, associated with numbness and tingling.  A March 2012 MRI showed degenerative changes, most notable L5-S1 where disc bulge abuts the traversing S1 nerve roots in the lateral recesses, and there was moderate bilateral neural foraminal narrowing.  He had tenderness over the right lower lumbar paraspinals.  His active range of motion was "limited by pain."  His sensation was intact, muscle strength full (5/5), and deep tendon reflexes were hypoactive (1+).  He had negative straight leg raise tests, but positive hamstring tightness.  He was assessed with chronic low back pain, "clinical picture is suggestive of radiculopathy."  The Board notes that this is the first indication of right radiculopathy.

Social Security Administration records from March 26, 2014 show that the Veteran was found disabled from February 6, 2013 due to disorders of muscle/ligament/fascia and disorders of the back.  The records contain a January 22, 2014 musculoskeletal evaluation wherein the Veteran reported constant low back pain, which radiated to his right buttocks, down the back of the leg, to his right foot first toe.  The pain was associated with tingling and numbness of his right toes.  His pain was constant, and severe (9 out of 10).  His symptoms worsened with moderate physical activity.  He had difficulty doing most house chores.  He was able to do most of his activities of daily living.  He was in no acute distress, ambulated with an antalgic gait protecting his right leg, but maintained good balance.  He had moderate tenderness and pain at the level of the sacral area, mostly on the right.  He had lumbar range of motion with extension to 25 degrees, flexion to 70 degrees, left lateral flexion to 25 degrees, and right lateral flexion to 20 degrees.  Neurological evaluation showed normal deep tendon reflexes and no focal motor/sensory deficit present.  He had full muscle strength in the lower extremities.  He was not assessed with radiculopathy. His gait was affected by pain, protecting his right leg (including knee). 

A December 3, 2015 VA record included evidence of low bac pain irradiated to L4-5 dermatome.  He was noted to have "limitation" of extension and flexion.

The Board notes that the medical evidence prior to August 8, 2016 shows forward flexion of the lumbar spine to 80 degrees (2011) and 70 degrees (2014), with a combined rating of 217 (2011).  The Veteran was noted to have objective spasm, although the examiner did not indicate that the muscle spasm resulted in abnormal gait or spinal contour.  The 2011 examination did not include estimation of additional loss of motion during a flare-up or with repeated use over time.  A 2019 examiner estimated that during a flare-up or with repeated use over time, the Veteran would have a loss of 15 degrees of forward flexion.  Applying this estimated loss to the range of motion findings in 2011 and 2014, the Veteran would have had an estimate range of motion during a flare-up or after repeated use over time of 65 degrees, and 55 degrees.  Given the above, the Board will resolve reasonable doubt in the Veteran's favor, and provide a 20 percent rating for the period prior to August 8, 2016 for forward flexion greater than 30 degrees but less than 60 degrees.  

From August 8, 2016

On August 8, 2016, the Veteran participated in a spine disability benefits questionnaire, and was diagnosed with IVDS.  He reported his condition had worsened.  He had weekly flare-ups of symptoms lasting hours.  He had functional loss of "standing and ambulation tolerance."  He had forward flexion to 35 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, and left lateral flexion and bilateral rotation to 15 degrees.  Pain resulted in functional impairment.  There was evidence of pain with weightbearing.  He was able to perform repeat range of motion testing without additional loss of motion.  He was not being examined immediately after repeated use over time.  The examiner remarked that he was unable to provide estimated loss of range of motion due to flare-ups or after repeated use over time without resorting to mere speculation.  He had muscle spasm, localized tenderness, and guarding, but not resulting in abnormal gait or spinal contour.  He had full muscle strength in his bilateral lower extremities.  He had normal (2+) deep tendon reflexes and normal sensory evaluations of his lower extremities.  He did not have ankylosis of the spine.  He did not have radicular pain or any other signs of radiculopathy.  The examiner did not answer the questions regarding incapacitating episodes because, despite the diagnosis section including a diagnosis of IVDS, in the IVDS section the examiner selected that the Veteran did not have IVDS.  Although the examination did not adequately address estimation of loss of range of motion or functional loss due to repeated use over time, the examination did provide a base for range of motion of his lumbar spine.  Applying the 2019 loss of 15 degrees to the findings in the 2016 examination, the Veteran would have 20 degrees of flexion. 

A June 13, 2019 VA back disability benefits questionnaire included a diagnosis of discogenic disease of the lumbar spine, IVDS, bulging disc L3-4 producing mild stenosis of the spinal canal, bulging disc L5-S1 stenosis of the spinal canal, and degenerative joint disease of the lumbar spine with facet joint hypertrophy (by MRIs).  The Veteran reported that his symptoms had worsened over time with pain, now going into both hips and right leg.  He had an EMG and was told it was inflammation only, "no nerve impingement."  He did not report flare-ups of spine symptoms.  He reported functional impairment of "prolonged bending and sitting increases the pain and he avoids lifting."  Range of motion testing showed flexion to 60 degrees, extension to 15 degrees, lateral flexion to 20 degrees, and rotation to 15 degrees.  He had pain with each range of motion/pain on examination, but it did not cause functional loss.  He also had mild tenderness to the lumbar paraspinals.  There was no evidence of pain with weight bearing.  He was able to perform repeat range of motion testing without change in range of motion.  The Veteran was not being examined immediately after repetitive use over time.  The examiner estimated loss of range of motion following repeated use over time as follows: flexion to 45 degrees, extension to 0 degrees, and lateral flexion and rotation all to 15 degrees.  He had muscle spasm, that did not result in abnormal gait or spinal contour. He had normal muscle strength throughout his lower extremities.  He had normal deep tendon reflexes and normal sensory examination of both lower extremities.  The examiner found that the Veteran did not have radicular pain or other signs of radiculopathy.  He did not have ankylosis of the spine.  He had not had any incapacitating episodes of IVDS in the prior 12 months.  The functional impact of his spine disorder was that he "could not bend or lift or do prolonged sitting."  There was no objective evidence of pain with nonweight-bearing.  His passive range of motion was the same as his active range of motion.  "There is worsening of the Veteran's symptoms, however, no change to the service-connected diagnosis" or additional diagnosis.  Although the 2019 examination shows range of motion warranting a 20 percent rating, the August 2016 examination shows range of motion (with consideration of additional loss during a flare-up or with repeated use over time) warranting a 40 percent rating.

From October 6, 2020

Although the claim continued on appeal from the September 22, 2010 claim date, it appears the RO provided an increased 40 percent rating for the Veteran's lumbar spine based on an October 6, 2020 intent to file an increased rating.  With this decision, the Board is providing the increased 40 percent rating from August 8, 2016. 

A March 24, 2021 VA spine examination diagnosed lumbar IVDS.  The Veteran reported that his back pain had increased "lately."  His limited range of motion contributed to: "loss of ambulation, standing, driving, and even sitting tolerance."  He had weekly flare-ups of pain to a level 9 out of 10, lasting for hours and causing the above functional loss.  His back pain was "usually aggravated by lifting objects from the floor, standing for more than 20 minutes, [and] rainy days."  His pain was alleviated by medications.  On range of motion testing, his forward flexion was limited to 20 degrees.  He was further limited in all other ranges of motion.  He had objective pain with flexion, extension, lateral flexion, and rotation.  Passive range of motion was not performed as it was medically contraindicated due to pain.  There was evidence of pain with nonweight-bearing and active motion, and caused functional loss.  He was able to perform repeat range of motion testing; there was no change in range of motion during the evaluation.  The Veteran was not being examined immediately after repeated use over time.  The examiner estimated a change in range of motion after repeated use over time due to pain and lack of endurance, with forward flexion to 25 degrees (improvement of 5 degrees), extension to 10 degrees (unchanged), and lateral flexion and rotation each to 10 degrees (decrease of 5 degrees).  The examiner provided these estimated changes in range of motion based on lay statements from the Veteran.  The Veteran had localized tenderness and muscle spasm, without resulting abnormal gait or abnormal spinal contour.  His low back pain interfered with sitting, standing, and locomotion.  He reported difficulty dressing his lower half (shoes, socks, pants, etc.).  He had full muscle strength and normal deep tendon reflexes throughout.  He had normal sensation to both lower extremities.  He did not have radicular pain or other signs of radiculopathy.  There is no ankylosis of the spine.  

The Veteran has IVDS of the thoracolumbar spine.  The examiner selected that the Veteran had acute signs or symptoms of IVDS requiring bedrest in the past 12 months, but then selected no episodes of bedrest in the past 12 months.  The examiner noted that the indication that he had an episode requiring bedrest was based on medical history described by the Veteran only.  The Veteran's lumbar spine disability resulted in limitations with driving, lifting, ambulating, and even sitting tolerance.  

The Board finds that a rating in excess of 40 percent is not warranted.  Under DC 5243, a rating in excess of 40 percent would require unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of 6 weeks during the past 12 months.  The lay and medical evidence of record does not show that the Veteran had ankylosis of his lumbar spine, nor did his flare-ups or repeated use over time result in functional loss that more nearly approximated ankylosis.  The Veteran's estimated range of motion was based up on the veteran's report of functional impairment.  The Veteran has reported the necessity for bedrest due to his lumbar spine disability.  As noted above, the Board searched for evidence that the Veteran was seen by a physician and prescribed bedrest, or something similar.  The Board was unable to locate such records.  Indeed, the Veteran's treatment records contain a number of physical therapy records, and none indicate that the Veteran needed treatment akin to bedrest.  As such, the Board finds that entitlement to a rating in excess of 40 percent for lumbar spine disability is not warranted.

The Board is providing a separate 10 percent rating for mild incomplete paralysis of the sciatic nerve for right lower extremity radiculopathy, from December 30, 2013.  

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520.  (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720).  Under these criteria, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Moderately severe incomplete paralysis is rated as 40 percent disabling.  Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling.  Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling.  38 C.F.R. § 4.124a. 

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves."  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).

The Veteran has described pain that occasionally radiated from his low back down his right lower extremity, with tingling and numbness.  Objectively, he had occasional findings of hypoactive deep tendon reflexes and decreased muscle strength.  However, he also had occasional normal findings related to these.  He had normal sensation throughout.  The Board finds that these results more closely approximate a finding of mild incomplete paralysis.  A separate rating in excess of 10 percent is not warranted.

9. Entitlement to a rating in excess of 20 percent for left shoulder disability prior to October 6, 2020 is denied.

10. Entitlement to a rating in excess of 30 percent for left shoulder disability from October 6, 2020 is denied.

11. Entitlement to a rating in excess of 20 percent for right shoulder disability prior to June 1, 2012 is denied.

12. Entitlement to a rating of 40 percent for right shoulder disability from June 1, 2012 is granted.

13. Entitlement to a 60 percent rating, and no greater, for right shoulder disability, from April 1, 2014 is granted.

The Veteran is seeking increased staged ratings for his bilateral shoulder disabilities.  A January 2021 statement included the Veteran's argument that his right shoulder disability warranted an increased rating due to his "constant painful motion and weakness completely affecting" his arm.  He also argued for an increased rating for his right shoulder because he is right handed, and he cannot lift more than 10 lbs.  He argued that he had fibrous union of his right humerus.  The Board notes that the ratings for the shoulder contemplate the major and minor shoulders; the Veteran is in receipt of higher staged ratings for his right shoulder because it is his dominant hand.  The Board also notes that there is no competent evidence of fibrous union of the Veteran's right humerus, as will be noted in examinations cited below.

The January 2021 statement additionally included the Veteran's argument for an increased rating for his left shoulder.  He noted his left shoulder never improved after surgery.  He stated he was unable to move his shoulder and had limitation of motion to 25 degrees from his side. 

The Veteran's shoulder disabilities are rated under 38C.F.R. §4.71a, DC 5201, for limitation of motion of the arm.  Under DC 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity (here, the right and left shoulders, respectively).  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.  38C.F.R. §4.71a, DC 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."  See Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013).

Under DC 5051 for total shoulder replacement, a 100 percent evaluation is assigned for prosthetic replacement of the shoulder joint for one year following implantation of prosthesis.  38 C.F.R. § 4.71a, DC 5051.  With chronic residuals consisting of severe, painful motion or weakness in the affected extremity, a 60 percent evaluation is assigned for the major extremity and a 50 percent evaluation for the minor extremity.  Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to diagnostic codes 5200 and 5203.  The minimum rating that can be assigned is 30 percent for the major extremity and 20 percent for the minor extremity.  

A February 28, 2011 joints examination diagnosed bilateral shoulder osteoarthritis.  He had moderate weekly flare-ups of shoulder pain which lasted hours.  Precipitating factors included cold/rainy days, when lifting heavy objects, and when doing overhead activities with both shoulders.  On evaluation, his had crepitus and guarding of movement of both shoulders.  Shoulder range of motion included left flexion and abduction to 160 degrees, and internal and external rotation to 70 degrees.  He had right flexion and abduction to 160 degrees, and internal and external rotation to 70 degrees.  He had additional limitations after three repetitions, with bilateral flexion to 158 degrees, abduction to 155 degrees, and internal/external rotation both to 65 degrees. 

A March 12, 2012 VA treatment record showed the Veteran had full right active range of motion except internal rotation limited "to reach center of his back."  He had left shoulder abduction to 135 degrees and internal rotation also limited to reach center of back.  He had full passive range of motion of both shoulders.  

During a June 1, 2012 VA shoulder examination, the Veteran was diagnosed with bilateral shoulder degenerative osteoarthritis, and bilateral shoulder impingement syndrome secondary to supraspinatus tears.  He had worsened pain intensity of both shoulders and decreased range of motion since his last examination in February 2011.  He had flare-ups that resulted in an increased difficulty in performing overhead activities.  He had right shoulder flexion to 90 degrees, with objective pain at 60 degrees.  He had right shoulder abduction to 80 degrees, with pain at 60 degrees.  He had left shoulder flexion to 90 degrees, with pain at 60 degrees.  He had left shoulder abduction to 80 degrees, with pain at 60 degrees.  After repeat range of motion testing, there was no change in his range of motion.  He had guarding and localized tenderness of both shoulders.  He had full muscle strength of both shoulders.  He did not have ankylosis of either shoulder.  He had positive rotator cuff tests.  The Veteran did not have a history of subluxation and he had a negative crank apprehension and relocation test (instability).  The examiner selected that the Veteran did not have an AC joint condition; however, there was tenderness of the AC joint and he had a positive cross-body adduction test (may indicate AC joint pathology).  He had not had a total shoulder joint replacement or other arthroscopic surgery.  The functional impact of the Veteran's shoulders was that he could not lift more than 15 lbs. and could not perform repetitive overhead activities.  

The Board notes that limitation of motion of the arm midway between side and shoulder warrants a 20 percent for the minor (left) arm and 30 percent for the major (right) arm.  A 2021 examination estimated right shoulder loss of 70 degrees (remaining 10 degrees) of motion during a flare-up/after repeated use over time, and loss of 75 degrees for the left shoulder (remaining 15 degrees).  When applied to the 160 degrees shown for flexion and abduction in the 2011 examination, the Veteran would have 90 degrees for his right arm and 85 degrees for his left arm.  When applied to the 2012 findings of abduction to 80 degrees, the Veteran would have 10 degrees for his right arm and 5 degrees for his left arm.  

In applying the estimated loss of range of motion from the 2021 examination to the prior objective ranges of motion of the right shoulder in the 2011 and 2012 examination, the Board finds that a 20 percent rating is warranted prior to June 1, 2012, and a 40 percent rating is warranted thereafter.  

In applying the estimated loss of range of motion from the 2021 examination to the prior objective ranges of motion of the left shoulder in the 2011 and 2012 examination, the Board finds that a 20 percent rating is warranted prior to June 1, 2012, and a 30 percent rating is warranted thereafter

A May 10, 2013 record included the Veteran's report of constant severe right shoulder pain secondary to right rotator cuff repair on February 2, 2013.  He had minimal tenderness in his right shoulder.  He had flexion to 149 degrees, extension to 47 degrees, and abduction to 139 degrees.  His left shoulder range of motion was "within functional limits."  The assessment noted that the Veteran had "increasing" active range of motion to his right shoulder.  His pain remained level after physical therapy intervention.  

A July 25, 2013 shoulder disability benefits questionnaire included a diagnosis of right shoulder degenerative joint disease, right shoulder rotator cuff tear and impingement, status post-surgical AC decompression, and clinical right long head of biceps tear.  He continued to have shoulder pain, but the pain was not worse.  He had cramping of his shoulder muscles upon movement of his arm, and had pain mostly with abduction, but less with forward flexion.  He also stated that the area of his arm depression was tender to palpation and painful when he contracts his biceps.  He had right shoulder flexion to 110 degrees, with objective pain at 85 degrees.  He had right shoulder abduction to 95 degrees, with pain at 80 degrees.  He had left shoulder flexion to 135 degrees, with pain at 120 agrees.  He had left shoulder abduction to 120 degrees, with pain at 110 degrees.  He was able to perform repeat range of motion testing, resulting in right flexion to 110 degrees, right abduction to 95 degrees, left flexion to 120 degrees, and left abduction to 110 degrees.  He had full (5/5) bilateral shoulder muscle strength.  He did not have ankylosis of either shoulder.  He had total right shoulder joint replacement on February 6, 2013 with residuals of pain and decreased range of motion.  Scars from the surgery were not painful, unstable, or of a total area greater than 6 sq. inches.  He also had medical biceps concavity, positive Popeye sign on his right arm (not on left arm), and tenderness to palpation at medial biceps.  Regarding functional impact, the examiner noted that the Veteran could not do any strenuous lifting of more than 10 lbs. and no repetitive overhead activities due to his right shoulder condition. 

The Board notes that under DC 5051, shoulder replacement warrants a 100 percent rating for one year following implantation of prosthesis.  Here, the Veteran warranted a 100 percent rating from February 6, 2013 to February 6, 2014.  The Veteran is in receipt of a temporary total (100 percent) evaluation for his right shoulder from February 2, 2013 to March 31, 2014, following right shoulder surgery.  As such, he is in receipt of the appropriate period of time for his 100 percent rating.  Chronic residuals consisting of severe, painful motion, or weakness in the affected extremity warrants a 60 percent for the dominant (right) shoulder.  The Board finds that the medical and lay evidence of record supports a 60 percent rating from April 1, 2014. 

A January 22, 2014 Social Security Administration musculoskeletal examination included the Veteran's history of right shoulder tear, osteoarthritis right foot, hypertension, degenerative disc disease, and status post rotator cuff tear surgery on February 6, 2013.  He had left shoulder normal abduction, adduction, flexion, extension and internal/external rotation.  His right shoulder had a well-healed surgical scar.  The range of motion chart showed left shoulder abduction to 150 degrees, adduction to 30 degrees, extension to 50 degrees, and flexion to 150 degrees.  His right shoulder range of motion showed abduction to 110 degrees, adduction to 30 degrees, extension to 40 degrees, and flexion to 110 degrees.  

An April 25, 2014 physical therapy record included that the Veteran's right shoulder pain persisted after February 2013 surgery.  His pain was constant, and increased spontaneously.  He had right shoulder internal rotation "at side full with pain," abduction to 110 degrees, flexion was full but slow.  He had full (-5/5) strength.

A March 26, 2018 physical medicine record noted the Veteran's chronic bilateral shoulder pain.  He had right shoulder rotator cuff repair in 2013 and left shoulder surgery in November 2016.  He completed rehabilitation in 2017.  He also had chronic bilateral long head of biceps tendon tear.  He had left shoulder abduction to 110 degrees, flexion to 150 degrees both slow with pain.  His external and internal rotation was full.  He had painful internal rotation.  He had right shoulder abduction to 130 degrees, and flexion to 150 degrees, both slow with pain.  His external and internal rotation abducted "terminal lag.".  He had painful internal and external rotation.  The impression was of chronic bilateral shoulder pain and impaired active range of motion secondary to internal derangement including degenerative joint disease, long head biceps tendon tear unresolved with surgery.  

On August 8, 2015, the Veteran participated in a VA shoulder examination.  He was diagnosed with bilateral shoulder impingement syndrome, right bicipital tendon tear, and bilateral rotator cuff tear.  He had weekly flare-ups of shoulder pain, lasting hours.  He reported a "loss [of ability to perform] overhead activities."  On range of motion testing, his right shoulder had flexion to 90 degrees, abduction to 80 degrees, and external and internal rotation to 20 degrees.  Pain noted on examination caused his functional loss.  His left shoulder had flexion to 90 degrees, abduction to 70 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees.  Pain noted on examination caused his functional loss.  He was able to perform repetitive range of use testing without additional loss of motion of either shoulder.  His right shoulder was not examined immediately after repeated use over time, but the evaluation was medically consistent with the Veteran's statements regarding functional loss.  The examiner noted that it was "not feasible to provide an additional limitation due to pain, weakness, or incoordination (if present), including [range of motion] loss, the evaluation must be done during the presence of a flare-up in order to objectively compare baseline to flare-up limitations."  The examiner found that he would be unable to provide an estimation of functional loss in terms of range of motion without resorting to mere speculation.  

On muscle strength testing, the Veteran had decreased (4/5) strength of both shoulders with forward flexion and abduction.  The Veteran did not have ankylosis of either shoulder.  There was no indication of shoulder instability, dislocation, or labral pathology.  He had bilateral degenerative joint disease of the AC joint, affecting range of motion and tenderness to palpation of the AC joint.  The Veteran did not have any impairments of the humerus.  He had a history of right repairment of rotator cuff in 2013 with residual pain and loss of motion.  

The Veteran is in receipt of a temporary total (100 percent) rating for his left shoulder from November 19, 2016 to December 31, 2017 for surgical convalescence. 

A February 10, 2017 physical therapy record noted the Veteran's left shoulder pain was 3 out of 10 severity; "movement has improved."  His active left shoulder motion was full except external rotation with arm abducted 90 degrees which caused immediate pain.  He had painful elevation past 100 degrees.  "No longer wearing a sling."

A November 14, 2017 orthopedic surgery note included that the Veteran had a history of rotator cuff repair in 2013.  He had flexion and abduction to 120 degrees, with pain at 90 degrees.  He had external rotation to 60 degrees, and internal rotation "to lumbar spine."  He was considered to have "good range of motion and minimal pain with mild cramping in bilateral arms, will continue with conservative management."

On June 13, 2019, the Veteran participated in a VA shoulder examination, and was diagnosed with bicipital tendon tear of the right (2012), right shoulder rotator cuff tear and impingement status-post surgical AC decompression (total shoulder joint replacement) degenerative arthritis of the right (dominant) shoulder (2007).  He reported continued pain in the right shoulder and left with activity.  He also had some atrophy of the right biceps following surgery.  His current symptoms were described as "no pain in muscle or arm, pain still in shoulder with overhead reach and pushing and pulling with force."  He did not report flare-ups of shoulder symptoms.  He reported functional impairment of "overhead reach or lifting and pushing will cause more pain in both shoulders."  On muscle strength testing of forward flexion and abduction, the Veteran had full (5/5) strength of both arms.  However, the examiner noted that the Veteran had muscle atrophy of his right upper extremity 12 cm below AC joint part of long head biceps was atrophied.  His "more normal" left side measured 20 cm, and his atrophied right side was 18 cm.  He did not have ankylosis of either shoulder joint.  He did not have impairment of the humerus.  In the "other pertinent physical findings" the examiner described "long head of biceps is abnormal and reduced in size from the prior surgery and 2012 tear of muscle with a visible loss of mass compared to the left, but veteran still has overall normal strength."  He had right shoulder arthroscopic surgery scar measuring 0.5 cm x 0.5 cm; the scars were not painful or unstable.  The examiner noted that a November 2011 MRI showed supraspinatus tear of both shoulders.  Regarding his right shoulder, the examiner noted that the Veteran underwent surgery in February 2013, with physical therapy records showing he fell on his shoulder in March 2013 and had pain with Popeyes sign of biceps retracted.  The biceps injury "technically happened after the surgery" but the surgery resulted in instability and need for physical therapy which "made him prone to subsequent injury."  As such, the examiner opined that the Veteran's biceps tear and atrophy were due to his service-connected right shoulder disability. 

On testing, the Veteran's right shoulder range of motion was flexion to 90 degrees, abduction to 90 degrees, external rotation to 50 degrees, and internal rotation to 60 degrees.  There was no evidence of pain with weight-bearing.  He was able to perform repeat range of motion testing, with no additional loss of motion.  He was not examined immediately after repeated use over time, but the examiner found that pain would significantly limit his functional ability with repeated use over time.  When asked to estimate loss of range of motion after repeated use, the examiner wrote that no further loss of range of motion was "expected during this scenario, only increased pain, thus no estimate of [range of motion was] warranted."  The same finding that pain would increase without additional limitation of motion was noted for when the Veteran was experiencing a flare-up of right shoulder symptoms.  There was objective evidence of pain when the right shoulder was used in nonweight bearing.  His passive range of motion was the same as his active range of motion.  

The Veteran's left shoulder range of motion was flexion to 150 degrees, abduction to 150 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees.  He had objective pain with flexion and abduction.  He had no pain with weightbearing, and no localized tenderness.  He was able to perform repeat range of motion testing, with no additional loss of motion.  The left shoulder was not being examined immediately after repetitive use over time.  Pain would significantly limit functional ability with repeated use.  The examiner was able to estimate loss of range of motion of flexion to 100 degrees, abduction to 100 degrees, external rotation to 45 degrees, and internal rotation to 45 degrees.  The same loss of range of motion estimations were provided for flare-ups of left shoulder pain.  There was no objective evidence of pain when the left shoulder was used in nonweight bearing.  His passive range of motion was the same as his active range of motion.

A March 24, 2021 shoulder examination diagnosed bilateral rotator cuff tears, and the Veteran reported his pain had increased lately, in frequency and intensity.  He reported flare-ups of pain (9 out of 10, severity) weekly, lasting hours causing loss of overhead activities capability as well as loss of strength in both shoulders, aggravated by overhead activities as well as repetitive motion of the shoulders.  He did not have ankylosis of either shoulder.  Testing showed signs of impingement of both shoulders.  Shoulder instability, subluxation, mechanical symptoms, labral pathology, and crank apprehension/relocation tests were all negative.  Both shoulders had degenerative joint disease of the AC joint, and tenderness to palpation of the AC joint.  He did not have loss of head, nonunion, or fibrous union of either humerus.  He did not have malunion of the humerus with moderate or marked deformity.  He did not have a glenohumeral joint condition.  The functional impact was noted that the Veteran was previously a janitor, but had to quit his job mainly due to lumbar condition in 2012.  In examiner remarked "actual condition in both shoulders precludes patient for gainful employment if such employment required heavy lifting, repetitive use of arms or overhead activities."

On range of motion testing, the Veteran's right shoulder had flexion to 80 degrees, abduction to 70 degrees, internal rotation to 20 degrees, and external rotation to 20 degrees.  He had pain with flexion, abduction, and rotation.  His passive range of motion of the right shoulder was the same as his active range of motion.  There was evidence of pain with weight-bearing, nonweight-bearing, active motion, passive motion, and he had functional loss with loss of strength.  There was no change in range of motion after repeat testing.  The Veteran's right shoulder was not being examined after immediately after repeated use over time or during a flare-up.  However, the examiner was able to estimate that the Veteran would have the following additional loss of motion: flexion to 10 degrees, and abduction, and internal/external rotation each to 5 degrees.  He had right rotator cuff repairment in 2013; however, residuals of surgery included pain and limited range of motion. 

Range of motion testing of the left shoulder showed flexion to 90 degrees, abduction to 80 degrees, internal rotation to 25 degrees, and external rotation to 35 degrees.  He had pain with all four ranges of motion.  His passive range of motion was the same as his active range of motion.  There was evidence of pain with weightbearing, non-weightbearing, active motion, passive motion, and functional loss due to loss of strength.  There was no change in range of motion after repeat testing.  The Veteran's left shoulder was not being examined after immediately after repeated use over time.  However, the examiner was able to estimate that the Veteran would have the following additional losses of motion: flexion to 15 degrees, and abduction, and internal/external rotation each to 10 degrees.  The examination was not performed during a flare-up of left shoulder symptoms.  But the evidence suggested that pain, weakness, and lack of endurance significantly limited functional ability during flare-ups.  His estimated loss of motion during a flare-up were flexion to 15 degrees, and abduction and internal/external rotation all to 5 degrees.  He had left rotator cuff repairment in 2013; however, residuals of surgery included pain and limited range of motion.

With this decision, the Board is provided the following staged right shoulder ratings: 20 percent prior to June 1, 2012, 40 percent from June 1, 2012, and 60 percent from April 1, 2014.  His left shoulder now has the following staged ratings: 20 percent prior to June 1, 2012, and 30 percent thereafter.  Increased staged ratings are not warranted.  The Board has applied estimated loss of range of motion during a flare-up or following repeated use over time in the most favorable way for the Veteran.  The Board finds that ratings in excess of 20 percent for right and left shoulder disabilities prior to June 1, 2012 are not warranted based on the range of motion findings in the 2011 examination.  The 40 percent (right) and 30 percent (left) ratings are the highest ratings available for loss of motion of the shoulder without shoulder replacement, or ankylosis of the scapulohumeral articulation.  The 60 percent rating for right shoulder replacement is the greatest rating available for a shoulder replacement following the initial one-year 100 percent rating provided post-surgery.  

The Board considered providing separate ratings for the Veteran's biceps atrophy.  Under Muscle Group V, for long head of biceps, a noncompensable rating is provided for slight disability under DC 5305.  Group V function includes elbow supination and flexion of the elbow due to long head of biceps as stabilizer of the shoulder joint, and flexor muscles of elbow.  The evidence of record noted positive Popeye's tests and atrophy of the biceps muscle.  The Veteran's Popeye biceps deformity was treated conservatively.  As such, the Board finds that the Veteran has a slight deformity, and a separate compensable rating is not warranted. 

14. Entitlement to total disability based on individual unemployability (TDIU) from September 15, 2013  

The Veteran has filed formal TDIU claims, alleging his service-connected disabilities, particularly his spine and joint disabilities, render him unable to maintain employment.  On his TDIU claim forms, the Veteran indicated that he was last employed on September 15, 2013.

Total disability ratings for compensation may be assigned where the Schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). 

Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a).  Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment.  Age is not a factor. 38 C.F.R. § 4.16 (b).

Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent.  38 C.F.R. § 4.16 (a).  For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident may be considered as one disability. 38 C.F.R. § 4.16 (a).

The evidence indicates that the Veteran's employment history is limited to janitorial work, and his various disabilities which limit his ability to stand, walk, run, navigate stairs, lift more than 10 to 15 lbs., and reach over shoulder height would severely limit his ability to continue to perform labor-intensive employment duties.  However, the issue of entitlement to TDIU is moot because, with this decision, the Veteran has a schedular 100 percent rating for the period upon which TDIU is claimed.

The Veteran is in receipt of a temporary total (100 percent) evaluation for residuals of right shoulder surgery from February 6, 2013 to April 1, 2014.  With this decision, in particular the Board's grant of a 60 percent rating for his right shoulder from April 1, 2014, the Veteran has a combined schedular 100 percent rating from April 1, 2014.  As such, the Veteran is at a schedular 100 percent rating during the entire period he has reported he has been unable to work.

In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court, held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation.  See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate)); see 38 U.S.C. § 1114 (s).

The Veteran is in receipt of SMC (s) for periods of temporary total ratings for post-surgery convalescence.  Following review of the record, the Board does not find that SMC (s) is available for any period of time on appeal.  Although the Veteran's disabilities would have combined with his work and education history to warrant TDIU from September 15, 2013, the evidence supports that a grant of TDIU would be based upon the combined impact of his various service-connected disabilities.  None of his disabilities rise to the severity that TDIU may be based on a single disability, and none of his disabilities prior to April 1, 2014 met the schedular criteria for TDIU based on a single disability.  In particular, the Veteran's back, shoulders, right wrist and right knee combine to limit his employability.  As such, entitlement to special monthly compensation is not indicated.

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. H. Stubbs, 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.