Citation Nr: 21070086
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 16-11 884
DATE: November 23, 2021

ORDER

Entitlement to a rating in excess of 20 percent for left shoulder rotator cuff tendonitis with degenerative arthritis is denied.

Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease with pars defect is denied.

FINDINGS OF FACT

1. The Veteran's minor joint of the left shoulder does not limit motion of the arm to 25 degrees from the side or less.

2. The Veteran's lumbar spine disability does not result in forward flexion of 30 degrees or less and the evidence does not show ankylosis of the entire thoracolumbar spine.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 20 percent for left shoulder rotator cuff tendonitis with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5201.

2. The criteria for entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease with pars defect have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served active duty in the United States Army from October 1992 to October 1995, February 2002 to October 2002, May 2004 to August 2005, December 2007 to February 2009, and from April 2009 to January 2012, with additional periods of active duty for training and National Guard service.

This matter comes to the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In June 2019 and June 2021, the Board remanded the issues on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's June 2021 remand directed the RO to comply with 38 C.F.R. § 19.31 by issuing a Supplemental statement of the case (SSOC). An SSOC was provided in July 2021, affirming the previous denial of increased ratings. As such, substantial compliance with the Board's remand has been achieved and the issues may be adjudicated on the merits. Id. at 271.

Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

Where entitlement to compensation has already been established and 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, where the evidence of record indicates fluctuations in the severity of symptoms during the rating period on appeal, an assignment of staged ratings is permissible. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999).

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. 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); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).

With any form of arthritis, painful motion is an important factor of disability; the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

VA's schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76, 453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

1. Entitlement to a rating in excess of 20 percent for left shoulder rotator cuff tendonitis

The Veteran contends he is entitled to a disability rating higher than 20 percent for his left shoulder disability. He asserts his pain has increased with use of the shoulder, particularly at 90 degrees and above or overhead. 

The Veteran's left shoulder has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5201 for limitation of motion of the arm with an effective date of January 16, 2012. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

Prior to February 7, 2021, Diagnostic Code 5003 for degenerative arthritis (hypertrophic or osteoarthritis) that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Effective February 7, 2021, Diagnostic Code 5003 was revised as follows: Degenerative arthritis, other than post-traumatic, established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent disability rating is warranted. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent disability rating is warranted. 

Under Diagnostic Code 5201, prior to February 7, 2021, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201.

Effective February 7, 2021, the criteria for limitation of motion of the arm under Diagnostic Code 5201 was revised to clarify that limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201).

Normal range of motion (ROM) of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013).

The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent. The February 2020 examiner noted all normal ROM for the left shoulder in flexion, abduction, external rotation, and internal rotation. The examination report shows pain was noted on flexion and abduction but did not result in functional loss, with no additional loss after repetitive testing. The evidence of record shows that the Veteran is right-hand dominant. While the Veteran's right shoulder exhibited limitation in functional ability with repeated use over time, the left shoulder did not exhibit similar loss. See 38 C.F.R. § 4.45;  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Muscle strength was found to be within normal limits and no ankylosis or pain on passive motion was found. See Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the Veteran reported he did not experience flare ups and symptoms in other shoulder and arm joints was not shown on examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran submitted private treatment records from 2006 to 2011 that are consistent with the above findings of the VA examiner. 

The evidence throughout the appeal period does not show the Veteran experienced limitation of motion to midway between the side and shoulder level sufficient to warrant a higher rating of 30 percent under DC 5201. Rather, full ROM was noted at examination with no additional loss of function. However, the Veteran reports painful motion of the shoulder, which is supported by the objective medical evidence, therefore warranting a rating of 20 percent. See 38 C.F.R. § 4.59.

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain when lifting and weakness with fast movement. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major or minor extremity. 

The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect impairment of the humerus, clavicle, or scapula that would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. 

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for left shoulder rotator cuff tendonitis with degenerative arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

2. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease with pars defect

The Veteran contends the symptoms of his back disability warrant a higher rating. He is currently in receipt of a 20 percent disability rating for his degenerative disc disease of the lumbar spine rated under DC 5242. 

Under the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. VA regulation defines normal range of motion of the lumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V.

The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lumbar spine degenerative disc disease. 

The Veteran's February 2020 VA examination notes diagnoses of degenerative disc disease and pars defect of the lumbar spine. ROM testing showed forward flexion limited to 70 degrees, and extension, lateral flexion, and lateral rotation limited to 30 degrees. ROM results following repetitive use testing showed additional limitation of motion to 60 degrees for forward flexion, 25 degrees for extension, 25 degrees for right and left lateral flexion, and 30 degrees for right and left lateral rotation. The examiner estimated further limitation of ROM with repeated use over time to 55 degrees for forward flexion, 20 degrees for extension and right and left lateral flexion, and 25 degrees for right and left lateral rotation. Ankylosis, intervertebral disc syndrome (IVDS), muscle guarding, and neurologic abnormalities were not found on examination. Muscle spasms were noted but did not result in abnormal gait or spinal contour as they occur only occasionally and are able to be worked out. The Veteran reported chronic pain without flare-ups, noting a constant dull deep pain and sharp pain with use, especially bending and when carrying weight over 20 pounds. He also reported an incident occurred at work that resulted in three days of rest, which occurred once in a year.

Pain resulting in functional loss was noted on examination, however, there was no evidence of pain on non-weight bearing and passive range of motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). Diagnostic imaging was performed at the February 2020 examination. The interpreting radiologist noted mild lower lumbar degeneration and a possible pars injury at L5. He explained the Veteran may be experiencing pain radiating in or around the lower back due to an injured or strained interarticularis, as a pars defect typically refers to a break in the bone. 

The Board finds the Veteran does not demonstrate forward flexion of the thoracolumbar spine less than 30 degrees or a combined range of motion less than 120 degrees, even with consideration of pain or repetitive use. Rather, the evidence demonstrates the Veteran's disability picture most nearly approximates his current rating of 20 percent, as evidenced by his February 2020 VA examination. 

Additionally, the Veteran's July 2013 VA examination shows normal range of motion in all directions with no objective evidence of painful motion. No additional loss in ROM was found after repetitive use testing that would warrant a rating higher than 20 percent. Muscle strength testing and reflex exams were normal and no muscle guarding or spasms were found. The evidence does not show an increase is warranted for limitation of motion on the basis of flare-ups as the Veteran denied flare-ups at both examinations. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, repetitive use testing did not demonstrate limited ROM that would warrant a rating in excess of 20 percent at either exam. 

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  While the Veteran reports an incapacitating episode following sharp pain after bending at the waist while at work, the objective evidence does not demonstrate the presence of IVDS. The definition of the term "incapacitating episodes" that appears in the regulation requires that the bed rest be prescribed by a physician. 38 C.F.R. § 4.71a, DC 5243, Note 1. However, the evidence does not show the Veteran was prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Further, following regulation changes effective February 7, 2021, IVDS is assigned DC 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve root, which is not applicable in this case. 

The Board acknowledges the Veteran's lay reports that there is functional loss due to limited bending. See 38 C.F.R. §§ 4.40, 4.45. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Note 5. The evidence does not show that the Veteran experienced ankylosis (whether favorable or unfavorable) of the thoracolumbar spine or the entire spine such that would warrant a rating of 40 or higher at any time during the period on appeal. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability.

Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Tabitha Chapman, 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.