Citation Nr: 21075827
Decision Date: 12/21/21	Archive Date: 12/21/21

DOCKET NO. 07-11 894
DATE: December 21, 2021

ORDER

1. Entitlement to service connection for fatty liver disease is granted.

2. Entitlement to an initial rating in excess of 10 percent for the lumbar spine disability prior to March 13, 2015, is denied.

3. Entitlement to a rating in excess of 20 percent for the lumbar spine disability from March 13, 2015 to August 3, 2021, is denied.

4. Entitlement to a rating of 40 percent, but no higher, for the lumbar spine disability from August 4, 2021 is granted.

5. Entitlement to a rating in excess of 20 percent for residuals of right shoulder injury with limitation of motion at the shoulder level (right shoulder disability) is denied.

6. Entitlement to a rating in excess of 60 percent for gastroesophageal reflux disease (GERD) and recurrent pancreatitis prior to February 25, 2013 and from April 1, 2013 is denied.

7. Entitlement to a rating in excess of 30 percent for status post left ulnar nerve laceration with repair and subsequent neurolysis and epicondylectomy with mild limitation of motion of the left wrist and elbow (left ulnar nerve disability) is denied.

REMANDED

1. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected degenerative disc and joint disease of the lumbar spine (lumbar spine disability), is remanded.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded.

FINDINGS OF FACT

1. The preponderance of the evidence supports a finding that fatty liver disease began during the Veteran's active service.

2. Prior to March 13, 2015, the lumbar spine disability was not shown to result in functional limitation of forward flexion of the thoracolumbar spine to 60 degrees or less or combined range of motion of the thoracolumbar spine to 120 degrees or less, even considering functional limitation factors; nor did the lumbar spine disability cause muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.

3. From March 13, 2015 to August 3, 2021, the Veteran's lumbar spine disability was not shown to result in limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, even considering functional limitation factors; nor has ankylosis of the thoracolumbar spine been demonstrated.

4. From August 4, 2021, the Veteran's lumbar spine disability has been shown to result in limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, considering functional limitation factors, but ankylosis of the entire thoracolumbar spine has not been demonstrated.

5. During the entire appeal period, the right shoulder disability is not manifested by limitation of the arm midway between side and shoulder level.

6. The highest possible schedular evaluation for GERD has been in effect for the entire period on appeal.

7. The Veteran's recurrent pancreatitis with GERD did not manifest with frequently recurrent disabling attacks of abdominal pain with few pain free intermissions and with steatorrhea, malabsorption, diarrhea, and severe malnutrition.

8. During the entire appeal period, the left ulnar nerve disability was not manifested by complete paralysis of the ulnar nerve.

CONCLUSIONS OF LAW

1. The criteria for service connection for fatty liver disease have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. Prior to March 13, 2015, the criteria for a disability rating in excess of 10 percent for the lumbar spine disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71(a), Diagnostic Code 5242.

3. From March 13, 2015 to August 3, 2021, the criteria for a disability rating in excess of 20 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71(a), Diagnostic Code 5242.

4. From August 4, 2021, the criteria for a disability rating of 40 percent for the lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71(a), Diagnostic Code 5242.

5. The criteria for a rating in excess of 20 percent for the right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201.

6. The criteria for a rating in excess of 60 percent for GERD and recurrent pancreatitis prior to February 25, 2013 and from April 1, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 7346 and 7347.

7. The criteria for a rating in excess of 30 percent for the left ulnar nerve disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.14, 4.123, 4.124, 4.124(a), Diagnostic Code 8516.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from February 1987 to March 1989 and from June 1994 to April 1999.

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A June 2005 rating decision, inter alia, denied service connection for fibromyalgia and hip pain. A March 2006 rating decision, inter alia, combined the evaluations of recurrent pancreatitis with GERD and assigned a single 30 percent rating, effective June 1, 2006. A June 2008 rating decision, inter alia, increased the rating of recurrent pancreatitis with GERD to 60 percent, effective June 1, 2006.  Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). An April 2011 rating decision awarded service connection for lumbar spine degenerative disc and joint disease and assigned an initial 10 percent evaluation, effective May 13, 2009, and denied service connection for left lower extremity radiculopathy. A February 2013 rating decision, inter alia, increased the evaluation of status post left ulnar nerve laceration with repair and subsequent neurolysis and epicondylectomy with mild limitation of motion of left wrist and elbow to 20 percent, effective July 5, 2011, and denied entitlement to an evaluation in excess of 20 percent for right shoulder injury with limitation of motion at right shoulder level. A May 2015 rating decision, inter alia, increased the evaluation of status post left ulnar nerve laceration with repair and subsequent neurolysis and epicondylectomy with mild limitation of motion of left wrist and elbow to 30 percent, effective July 5, 2011 and increased the evaluation of lumbar spine degenerative disc and joint disease to 20 percent, effective March 13, 2015. AB, supra.   

In November 2015, the Board, inter alia, found that the record included a claim of service connection for a liver disability and also raised a claim for a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

The Board remanded these matters initially in November 2015 and again in April 2018, after finding that separate compensable evaluations for GERD and recurrent pancreatitis were not warranted.

The Board remanded these matters another time in April 2020 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives as to the issues decided herein and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).

Service Connection

To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

1. Entitlement to service connection for a liver disability, to include as secondary to medications required for service-connected disabilities

The Veteran contends that he has a liver disability which has been caused or aggravated by his service-connected disabilities.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Veteran has a current diagnosis of fatty liver disease. In a March 2021 VA examination, the examiner noted that the Veteran was diagnosed with fatty liver steatosis in 1994, while in a December 2016 VA examiner, he was diagnosed with fatty liver infiltration and disease. Additionally, ultrasound examinations in April 1997, December 2001, December 2003, and July 2005 noted clinical findings of fatty infiltration. The Board notes that the RO denied service connection for steatosis of the liver, also known as fatty liver disease, on the grounds that, like hyperlipidemia, this condition is an abnormal laboratory finding which does not meet the "current disability" requirement of a claim for service-connected disability compensation.

In Woodhouse v. Nicholson, No. 04-1074, 2005 U.S. App. Vet. Claims LEXIS 759 (October 14, 2005), the United States Court of Appeals for Veterans Claims (Court) reversed a Board decision denying service connection for fatty infiltration of the liver. Like the RO in this case, the Board denied the claim on the grounds that fatty infiltration of the liver was "essentially a laboratory finding for which there is no basis for assigning service connection because [the Veteran] suffered from no disability associated with his condition." Id. at *3. However, the Court vacated the Board's decision, in part, because it failed to explain why the Veteran's fatty liver disease should not be service connected with a zero percent disability rating. Id.

As in Woodhouse, the Board can find no support in the record for finding that steatosis of the liver must be classified as a laboratory finding as opposed to a service-connected disability with a zero percent rating. Hepatic steatosis, or liver steatosis, is defined as "fatty liver." Dorland's Illustrated Medical Dictionary 1769 (32nd ed. 2012). Nonalcoholic steatohepatitis is defined as "an inflammatory disease of the liver of uncertain pathogenesis, histologically resembling alcoholic hepatitis but occurring in nonalcoholic patients, most often obese women with type 2 diabetes mellitus; clinically it is generally asymptomatic or mild, but fibrosis or cirrhosis may result." Id.

In this case, the medical record indicates fatty infiltration of the liver. Given the characterization of nonalcoholic steatohepatitis as "an inflammatory disease of the liver," in the medical dictionary and the dictionary's note that the condition is "generally" but not invariably asymptomatic, the Board concludes that the current disability criterion has been met. Moreover, VA's recognition of hepatic steatosis as a "covered illness or condition" associated with exposure contaminated water supplies at Camp Lejeune supports this conclusion. See 38 C.F.R. § 17.400. Further, unlike hyperlipidemia, the Federal Register does not specifically identify fatty liver disease as a laboratory finding as opposed to a disability.

Thus, the remaining question is whether the current fatty liver disease is related to service or a service-connected disability.

Upon review of the evidence of record, the Board finds that service connection is warranted for fatty liver. The Veteran was diagnosed with fatty liver disease during service, and treatment records indicate that the disability has persisted since service. Further, the February 2021 VA examiner opined that the claimed fatty liver was at least as likely as not incurred in or caused by service as the abnormal liver function test was documented in December 1994, during a period of active service.

For the above reasons and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence does show that the Veteran's fatty liver disease was incurred in service. Accordingly, service connection for fatty liver is granted.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4. All potentially applicable rating criteria and regulations must be considered.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b);38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal.

Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire appeal period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999).

2. Entitlement to an initial rating in excess of 10 percent for the lumbar spine disability prior to March 13, 2015.

The Veteran contends that his service-connected degenerative disc and joint disease of the lumbar spine warrants a rating in excess of 10 percent prior to March 13, 2015, pursuant to Diagnostic Code 5242. 38 C.F.R. § 4.114, Diagnostic Code 5242.

The Veteran's lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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.  

The Board notes that on February 7, 2021, Diagnostic Code 5242 was amended to include degenerative disc disease. This amendment is not a substantive change, but rather, was an amendment to accurately describe the disability covered by the rating code.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in 38 C.F.R. § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under 38 C.F.R. § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint."  The spine has no opposite joint.

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

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.  

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. Id. at Note 5.  

The Board will also consider the possibility of awarding a higher rating with consideration of 38 C.F.R. §§ 4.40 and 4.45. The U.S. Court of Appeals for Veterans Claims (CAVC) recently held in Chavis v. McDonough, No. 18-2928 (U.S. Vet. App., April 16, 2021) that application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula for Diseases and Injuries of the Spine of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis in other words, if the demonstrated functional loss is the functional equivalent of ankylosis. In Chavis, the CAVC noted that the rating criteria define ankylosis in terms of limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position.").

Degenerative and/or traumatic arthritis, as shown by X-ray studies, are rated based on limitation of motion of the affected joint.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2016).  When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  Id., Diagnostic Codes 5003, 5010.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id.  In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. Id.  The above ratings are to be combined, not added under Diagnostic Code 5003. Id., note 1.

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. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular 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 weightbearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

The most probative evidence of record in this claim is contained in the VA examinations of record during the period on review.

The evidence does not document that the Veteran's forward flexion of the thoracolumbar spine is more 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.

In February 2006, the Veteran underwent an MRI which showed "vertebral body heights are well maintained. The conus of the spinal cord is in normal position and contains no areas of abnormal signal intensity. There is narrowing of the L3-4, L4-5 and L5-S1 disc spaces. Alignment is satisfactory. No areas of marrow replacement are seen. The L1-2 and L2-3 discs as well as its osseous structures are unremarkable. The L3-4 does demonstrate no posterior bulging or herniation. Mild to moderate lumbar canal stenosis is seen at this level. Facet hypertrophy is seen bilaterally. The L4-5 demonstrates no posterior bulging or herniation. Mild degenerative changes are in the facet joints bilaterally at this level. No canal or neural foraminal stenosis is seen. Degenerative changes in the facet joints at the L5-S1 disc level. Mild neural foraminal stenosis is seen at this level. There is slight lateral leftward bulging of the L5-S1 disc."

The Veteran was afforded a VA examination in July 2010. The Veteran reported an increase in frequency of pain in the back. The Veteran reported flare-ups impacted the function of his back and he avoided lifting and twisting. The Veteran reported flare-ups with mild or moderate back pain every two hours. He also reported flare-ups with severe pain, which would last thirty minutes. The examiner noted knee jerk reflexes were 2+/2+, ankle jerk reflexes were right 2+/left 1+. Straight-leg raising test negative bilaterally. No sensory or motor deficits were documented. No sciatic notch tenderness or paraspinal muscle spasm were documented.

The Veteran was afforded a VA examination in October 2010. The Veteran reported an increase in frequency of pain in the lumbar spine. The Veteran reported flare-ups that impacted the function of his back, and he reported that he avoided lifting and twisting. The Veteran reported weekly flare-ups with severe back pain, which would last one or two days. Range of motion testing revealed forward flexion of 85 degrees or greater, extension to 30 degrees or greater, right lateral flexion to 25 degrees or greater, left lateral flexion to 25 degrees or greater, right lateral rotation to 30 degrees or greater, and left lateral rotation to 30 degrees or greater. Range of motion did not change following repetitive use testing. The examiner did note pain on active motion and repetitive motion. The examiner noted functional loss or functional impairment of the spine. The Veteran did not have localized tenderness or pain to palpation for joints or soft tissue of the spine or muscle spasms. The examiner documented that the Veteran did not exhibit guarding, weakness or muscle spasms, an abnormal gait or abnormal spinal contour. Muscle strength and sensation were normal, and there was no evidence of radiculopathy or other neurological signs or symptoms. The examiner documented there was no evidence of ankylosis or muscle atrophy. Additionally, the Veteran reported he did not use any assistive devices.

In February 2011, December 2011, November 2012 and February 2013 examinations, the Veteran's private physician noted "two mild trigger points in the area of the lumbar spine. No spinous process tenderness in the lumbar spine. Mild left-sided paraspinous tenderness in the lumbar spine at L4-5 and L5-S1. No sacral iliac joint tenderness. Straight leg rise was negative. Faber (test) was negative. Mild pain on flexion of lumbar spine. Mild pain on extension of lumbar spine. Gait was not within normal limits. Strength was 5/5 in the lower extremities. Sensory was within normal limits."

The Veteran's private treatment records document that he received epidural steroid injections to his lumbar spine on numerous occasions. He received injections approximately 4 or 5 times per year from 2010 to 2014. 

The Veteran was afforded a VA examination in January 2013. The Veteran reported an increase in frequency of pain in the back. The Veteran also reported flare-ups impacted the function of his back and he avoided lifting and twisting. The examiner noted that the Veteran received pain management treatment, to include epidural steroid injections. Range of motion testing revealed forward flexion of 65 degrees or greater with pain, extension to 20 degrees or greater with pain, right lateral flexion to 30 degrees or greater with pain, left lateral flexion to 30 degrees or greater with pain, right lateral rotation to 30 degrees or greater, and left lateral rotation to 30 degrees or greater. Range of motion did not change following repetitive use testing. The examiner noted functional loss or functional impairment of the spine. The Veteran reported he did not have localized tenderness or pain to palpation for joints or soft tissue of the spine or muscle spasms. The examiner documented that the Veteran did exhibit guarding and muscle spasms, though they did not result in an abnormal gait or spinal contour. Muscle strength and sensation was normal, and there was no evidence of radiculopathy or other neurological signs or symptoms. The examiner documented there was no evidence of ankylosis or muscle atrophy. Additionally, the Veteran reported he did not use any assistive devices. 

The Board can find no probative evidence that the criteria for a rating in excess of 10 percent under the General Rating Formula was met prior to March 18, 2015. The VA examination reports of record show that the Veteran's forward flexion was limited to, at minimum, 65 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Therefore, there remains no probative evidence that his symptoms resulted in motion loss to a degree that warrants a rating in excess of 10 percent. Moreover, the preponderance of the evidence does not suggest that the Veteran displayed guarding, muscle spasm, or abnormal spinal contour as a result of his lumbar spine disability, prior to March 13, 2015.

Additionally, the Board does not find that a higher rating is warranted based on favorable ankylosis of the thoracolumbar spine. While the Board acknowledges that no VA examination of record diagnosed the Veteran with ankylosis, the functional equivalent of ankylosis during flare-ups of pain, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis, specifically a rating higher than 20 percent for the lumbar spine. Chavis v. McDonough, No. 18-2928, slip op. at 11 (U.S. Vet. App. Apr. 16, 2021). However, as noted above, under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating of 40 percent or higher requires favorable or unfavorable ankylosis of the entire thoracolumbar spine. There is no evidence showing ankylosis of the Veteran's spine ankylosis (a condition in which the spine or a spinal segment is fixed in flexion or extension) or the functional equivalent thereof throughout the appeal period. The February 2013 VA examination found no objective evidence of ankylosis, and the examiner estimated that the Veteran's functional loss of forward flexion limited to 40 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees in initial range of motion. While flare-ups and pain limited the Veteran's ability to perform strenuous activities, movement of the spine was still possible, and in addition, the Veteran was noted to be able to perform sedentary activities.

Additionally, as the Veteran is already in receipt of a compensable rating based on limitation of motion in the lumbar spine, the Board finds an additional, separate rating based on the diagnosis of degenerative arthritis is denied.

The Board has considered the effects of the Veteran's symptoms, including pain, flare-ups, and functional loss. Pain is specifically contemplated by the rating criteria for diseases and injuries of the lumbar spine. The Board finds that the 10 percent rating already assigned contemplates the Veteran's symptoms of pain, to include pain on weightbearing. The aforementioned clinical findings are evidence against symptoms in the lumbar spine that are more than mildly disabling prior to March 13, 2015. Thus, a higher rating than 10 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not approximated in the Veteran's disability picture for the period on appeal. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for his lumbar spine disability for the period prior to March 13, 2015. 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.

3. Entitlement to a rating in excess of 20 percent for the lumbar spine disability from March 13, 2015 to August 3, 2021.

The Veteran contends that his service-connected degenerative disc and joint disease of the lumbar spine warrants a rating in excess of 20 percent beginning March 13, 2015, pursuant to Diagnostic Code 5242. 38 C.F.R. § 4.114, Diagnostic Code 5242.

The Veteran was afforded a VA examination in March 2015. The Veteran reported his disability had worsened and that his current symptoms included pain. The Veteran did not report flare-ups of the lumbar spine. Range of motion testing revealed forward flexion limited to 40 degrees, extension to 10 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 40 degrees in initial range of motion, passive range of motion, non-weightbearing range of motion, following repeated use over time, and during flare-ups. The examiner noted pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. The examiner noted functional loss or functional impairment of the spine; specifically, the Veteran reported his back pain made it hard for him to perform simple daily tasks without pain. The Veteran did not report muscle spasm of the spine. The Veteran reported guarding, which the examiner documented resulted in abnormal gait or spinal contour. Muscle strength was normal. Sensation and reflex examinations were normal. There was no evidence of ankylosis, muscle atrophy, radiculopathy, or other neurologic abnormalities. 

The Veteran was afforded another VA examination in February 2021. The Veteran reported his disability had worsened and that his current symptoms had gotten worse and included disrupted sleep and pain, even at rest but worsened with use. The Veteran did not report flare-ups of the lumbar spine. Active and passive range of motion testing revealed forward flexion limited to 90 degrees, extension to 25 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees in initial range of motion, passive range of motion, and non-weightbearing range of motion. Range of motion testing revealed forward flexion limited to 80 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees with repeated use over time. The examiner noted pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time and on active and passive motion. The examiner noted functional loss or functional impairment of the spine. Specifically, the Veteran reported his back pain made it hard for him to perform simple daily tasks without pain. The Veteran had localized tenderness, which did not result in abnormal gait or spinal contour. Muscle strength was normal. Sensation and reflex examinations were normal. There was no evidence of ankylosis, muscle atrophy, radiculopathy, or other neurologic abnormalities, though the examiner did document objective evidence of crepitus. The examiner noted that in February 2021, the Veteran reported he continued to have chronic back pain that had worsened. He had flare-ups with lifting, twisting, prolonged standing, or walking. 

Based on the evidence detailed above, the Board can find no probative evidence that the criteria for a rating in excess of 20 percent under the General Rating Formula was met from March 18, 2015 to August 3, 2021. The March 2015 VA examination revealed forward flexion limited to 40 degrees. The January 2021 VA examination shows range of motion testing revealed forward flexion limited to 80 degrees. Therefore, there remains no probative evidence that his symptoms resulted in motion loss to a degree that warrants a rating in excess of 20 percent, specifically, forward flexion of the thoracolumbar spine was not limited to 30 degrees or less. 

Additionally, the Board does not find that a higher, 40 percent rating is warranted based on favorable ankylosis of the thoracolumbar spine. While the Board acknowledges that no VA examination of record diagnosed the Veteran with ankylosis, the functional equivalent of ankylosis during flare-ups of pain, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis, specifically a rating higher than 20 percent for the lumbar spine. Chavis v. McDonough, No. 18-2928, slip op. at 11 (U.S. Vet. App. Apr. 16, 2021). However, while the VA examiners documented that flare-ups and pain limited the ability of the Veteran to perform strenuous activities, movement of the spine was still possible and in addition, the Veteran was able to perform sedentary activities. Accordingly, a rating of 40 percent or higher rating is not warranted for ankylosis or the functional equivalent of ankylosis throughout the appeal period. 

As the Veteran is already in receipt of a compensable rating based on limitation of motion in the lumbar spine, the Board finds an additional, separate rating based on the diagnosis of degenerative arthritis is denied.

The Board has considered the effects of the Veteran's symptoms, including pain, flare-ups, and functional loss. Pain is specifically contemplated by the rating criteria for diseases and injuries of the lumbar spine. The Board finds that the 20 percent rating already assigned contemplates the Veteran's symptoms of pain, to include pain on weightbearing. The aforementioned clinical findings are evidence against symptoms in the lumbar spine that are more than mildly disabling prior to March 13, 2015. 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 his lumbar spine disability for the period from March 13, 2015 to August 3, 2021. 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.

4. Entitlement to a rating in excess of 40 percent for the lumbar spine disability from August 4, 2021

The Veteran's lumbar spine disability is currently rated 20 percent disabling from March 18, 2015.

The Veteran was afforded a final VA examination in August 2021. The Veteran reported his disability had worsened and that his current symptoms included pain. The Veteran reported moderately severe flare-ups of the lumbar spine which occurred every two months and lasted for two weeks. During flare-ups the Veteran reported that it was hard to move, but he reported he always had difficulties doing chores and walking up stairs. Range of motion testing revealed forward flexion limited to 40 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees in initial range of motion. Range of motion testing estimations revealed forward flexion limited to 30 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees during flare-ups and after repeated use. The examiner noted functional loss or functional impairment of the spine; specifically, the Veteran reported his back pain made it hard for him to perform simple daily tasks without pain. The Veteran did not report muscle spasm or guarding of the spine. Muscle strength was normal. Sensation and reflex examinations were normal. There was no evidence of ankylosis, muscle atrophy, radiculopathy, or other neurologic abnormalities.

As discussed above, the March 2015 private treatment records do not indicate clinical findings, to include range of motion findings, which would support an increased rating in excess of 20 percent from March 13, 2015 to August 3, 2021. Additionally, these private treatment records also demonstrates that the Veteran has motion in all relevant directions and his thoracolumbar spine is not fixed in flexion or extension and does not demonstrate unfavorable ankylosis or ankylosis of the lumbar spine.

Upon review of the record, the Board finds that a 40 percent rating should be awarded for the Veteran's lumbar spine disorder, effective August 4, 2021. The August 2021 VA examination showed flexion limited to 30 degrees after repetitive movement. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to a 40 percent disability rating.

The Board finds that a rating higher than 40 percent is not warranted at any point during the appeal period. This is so because even though the Veteran's range of motion of the thoracolumbar spine is limited, the VA examination report dated during the relevant time period does not demonstrate unfavorable ankylosis, to include functional ankylosis, as it is clear that the Veteran has motion in all relevant directions and his thoracolumbar spine is not fixed in flexion or extension. 

Resolving reasonable doubt in favor of the Veteran, a 40 percent rating, but not higher, is granted for the period from August 4, 2021. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

5. Entitlement to a rating in excess of 20 percent for the right shoulder disability

The Veteran contends that his service-connected residuals of right shoulder injury with limitation of motion at the shoulder level warrants a rating in excess of 20 percent pursuant to Diagnostic Code 5201. 38 C.F.R. § 4.114, Diagnostic Code 5201.

The Veteran's residuals of right shoulder injury with limitation of motion at the shoulder level is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Veteran is right-handed, and thus the right shoulder is the major joint.

Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013).

Effective February 7, 2021, VA amended Diagnostic Code 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint.

During an August 2011 VA examination, the Veteran reported a progressive worsening for his right shoulder. The Veteran reported "that the current pain in the right shoulder is 9/10, 24/7. He has trouble sleeping because the rolling over or stretching the right shoulder causes a great deal of pain, shooting partly down the arm. In trying to play with his kids, he cannot throw a Frisbee or raise the arm to work overhead. He has trouble even brushing his teeth and combing his hair, as well as peroneal cleanliness. There has been no acute flare-up in the past year, but each year he just seems to have more and more discomfort. He is also limited . . . in yard work and heavy lifting, say anything over 15 or 20 pounds. He has to be careful when he reaches to open a doorknob because that sudden motion will bother the right shoulder."

Upon testing, the Veteran's right shoulder showed flexion to 120 degrees, abduction to 70 degrees, external rotation to 45 degrees and internal rotation to 50 degrees. Repetitive use testing was conducted. There was no further loss secondary to fatigue, weakness, lack of endurance, or incoordination. Tenderness was noted diffusely over the right shoulder, both over the area of the AC joint and the anterior and lateral rotator cuff. The examiner did not find that the Veteran had ankylosis, shoulder instability, or an AC joint condition or sternoclavicular joint condition. 

During a March 2015 VA examination, the Veteran reported a progressive worsening for his right shoulder. The Veteran did not report flare-ups for the right shoulder. Upon testing, the Veteran's right shoulder showed flexion to 70 degrees, abduction to 70 degrees, external rotation to 45 degrees, and internal rotation to 90 degrees. Repetitive use testing was conducted but did not result in additional functional loss. Crepitus was noted on examination. Tenderness was noted with moderate diffuse tenderness to touch of the entire shoulder area on exam. There was evidence of pain on weightbearing, non-weightbearing, active and passive motion, and on rest was noted. Muscle strength testing was normal. The examiner documented the Veteran did not have ankylosis, shoulder instability, or an AC joint condition or sternoclavicular joint condition. However, the examiner did document that the Hawkins' impingement test was positive, signifying a possible rotator cuff tear.

During a February 2021 VA examination, the Veteran reported that his right shoulder disability had worsened with current symptoms of pain, weakness, guarding, and decreased range of motion. The Veteran reported that he avoids using the right arm, but that he was unable to use the arm over his head. The Veteran did not report flare-ups for the right shoulder. Upon testing, the Veteran's right shoulder showed flexion to 80 degrees, abduction to 110 degrees, external rotation to 55 degrees, and internal rotation to 65 degrees. Repetitive use testing was not conducted due to pain, but the examiner estimated that after repetitive use flexion would be limited to 70 degrees and abduction would be limited to 85 degrees. Crepitus was noted on examination, and tenderness was noted with moderate diffuse tenderness to touch of the entire shoulder area on exam. The examiner documented evidence of pain on weightbearing, non-weightbearing, active and passive motion, and on rest. The examiner documented that there was no ankylosis of the right shoulder, but the examiner was unable to complete the Hawkins' impingement test, the empty cane test, and the lift-off subscapularis test as the examiner suspected that there was some residual rotator cuff pathology due to forward flexion being limited to 90 degrees. The examiner was also unable to complete the crank apprehension and relocation test as there was a labral tear that may still be present. An external rotation/infraspinatus strength test was positive, suggesting weakness. The examiner documented that the Veteran had infrequent episodes of guarding of movement only at the shoulder level. The examiner also documented that a crossbody adduction test was positive, which may suggest AC joint pathology as AC joint arthritis was seen on a 2011 MRI and has most likely advanced. The functional impact of the Veteran's right shoulder disability was, as stated by the examiner: "all use of the right shoulder/arm is difficult and avoided in all ranges of motion."

The Board thus finds that based on the lay and medical evidence of record for the entirety of the appeal, the evidence of record does not show limitation of motion of the arm to midway between side and shoulder level or flexion and/or abduction limited to 45 degrees to warrant an increased rating for the Veteran's right shoulder under Diagnostic Code 5201. The Board notes the Veteran's contentions regarding his right shoulder pain and a worsening of his pain and symptomology. The Veteran is competent to testify to such lay observable symptomology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence in this case even when accepted as accurate does not establish a level of disability contemplated by a higher evaluation. As there is no lay or medical evidence indicating the Veteran's right shoulder has been manifested by limitation of motion on flexion and/or abduction to 45 degrees or midway between side and shoulder level, a rating in excess of 30 percent is denied.

The Board has considered whether higher disability ratings are warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. The Board notes, however, that the rating criteria are intended to take into account functional limitations, and therefore, the provisions of 38 C.F.R. §§ 4.40 and 4.45 could not provide a basis for a higher evaluation. See 68 Fed. Reg. 51454-5 (Aug. 27, 2003). In any event, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. Rather, the Board finds that the Veteran's current pain on motion is envisioned in his current ratings. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

Further, the Board has considered whether an increased rating is warranted under the updated Diagnostic Code effective February 7, 2021. However, the Board finds that such is not for application, as there is no evidence of flexion/and or abduction limited to 25 degrees from the side.

The Board also acknowledges that the Veteran has a diagnosis of arthritis in the right shoulder. However, as the Veteran's limitation of motion is already compensable, a separate compensable rating based on a diagnosis of arthritis alone is denied.

Finally, consideration has been given to other potentially applicable diagnostic codes. However, the Board finds no basis upon which to assign evaluation in excess of 20 percent for the right shoulder disability at any point during the period of the appeal. The Veteran has not been found to have ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula to warrant consideration of Diagnostic Codes 5200 (scapulohumeral articulation, ankylosis of), 5202 (other impairment of humerus), or 5203 (impairment of clavicle or scapula). For the aforementioned reasons, the Board must deny the Veteran's claim for an increased rating in excess of 20 percent for his right shoulder.

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 residuals of right shoulder injury with limitation of motion at the shoulder level. 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.

6. Entitlement to a rating in excess of 60 percent for GERD and recurrent pancreatitis prior to February 25, 2013 and from April 1, 2013

The Veteran contends that his service-connected GERD with recurrent pancreatitis warrants a higher rating pursuant to Diagnostic Code 7346-7347 for disabilities of the digestive system. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the disability rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 7346 pertains to hiatal hernia. Diagnostic Code 7347 pertains to pancreatitis. 38 C.F.R. § 4.114, Diagnostic Codes 7346, 7347.

Under Diagnostic Code 7346 for hernia hiatal, the maximum 60 percent disability rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id.

The Veteran is presently in receipt of the maximum 60 percent rating under Diagnostic Code 7346 for his GERD with recurrent pancreatitis. However, he seeks to pursue the highest evaluation, under both Diagnostic Codes 7346 and 7347.

In his October 2007 Decision Review Officer (DRO) hearing, the Veteran stated that he had "an endoscopy and confirmed that there is a hernia in the hiatal area . . . And the pancreatitis, that is an excruciating pain that just comes, and it's separate. So, I've got a hiatal hernia, and I've got the esophagus is where they tightened. It is up is the GERD, and then the pancreas is down here."

As for Diagnostic Code 7347, which addresses pancreatitis, a 60 percent rating is warranted for frequent attacks of abdominal pain, loss of normal body weight and other findings showing continuing pancreatic insufficiency between acute attacks, and a 100 percent rating is provided for frequently recurrent disabling attacks of abdominal pain with few pain free intermissions and with steatorrhea, malabsorption, diarrhea, and severe malnutrition.

In a March 2005 VA examination, the Veteran reported that his pancreatic disability resulted in four or five attacks per year which result in flare-ups for one or two hours. He further noted that this had remained the same over the course of his disability. The Veteran reported abdominal pain, vomiting, and nausea. The examiner noted that the Veteran was not having problems with nausea, vomiting, diarrhea, or constipation.

In a February 2021 VA examination, the Veteran reported that his pancreatic disability had remained the same over the course of his disability. The Veteran reported abdominal pain and urgent bowel movements, which were manageable with dietary changes. The examiner noted that the Veteran had two or more attacks of mild abdominal pain in the past year. The examiner further noted that the Veteran had two attacks of moderately severe abdominal pain in the past year and one attack of severe abdominal pain in the past year. The characteristic of the Veteran's remissions/pain free intermissions between attacks was good pain-free intermissions. The examiner noted that the Veteran had the following symptoms attributable to the pancreas disability: steatorrhea a few days prior to a pancreatic attack, diarrhea after almost every meal, and dumping syndrome associated with his gallbladder removal.

Overall, the evidence does not show that the Veteran's pancreatitis warrants a 100 percent rating under Diagnostic Code 7347. The March 2005 VA examination showed that the Veteran had intermittently recurring disabling attacks of abdominal pain and diarrhea. However, the examiner did not find frequent attacks of abdominal pain, loss of normal body weight and other findings showing continuing pancreatic insufficiency between acute attacks, frequently recurrent disabling attacks of abdominal pain with few pain free intermissions and with steatorrhea, malabsorption, diarrhea, and severe malnutrition. The February 2021 VA examination showed that the Veteran had frequently recurring disabling attacks of abdominal pain with good pain-free intermissions and other findings showing continuing pancreatic insufficiency between acute attacks, as well as steatorrhea and diarrhea. However, malabsorption, and severe malnutrition were not noted. Thus, a 100 percent rating is not warranted for any time during the rating period, because the disability does not more nearly approximate the schedular criteria necessary for assignment of that disability rating.

For the foregoing reasons, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 60 percent for GERD and recurrent pancreatitis prior to February 25, 2013 and from April 1, 2013 and thereafter. 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.

7. Entitlement to a rating in excess of 30 percent for the left ulnar nerve disability

The Veteran contends that his left ulnar nerve disability warrants a higher rating in excess of 30 percent pursuant to Diagnostic Code 8516. 38 C.F.R. § 4.114, Diagnostic Code 8516.

Paralysis of the ulnar nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8516. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8616 and 8716. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity.  Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. The diagnostic code defines complete paralysis as when "the 'griffin claw' deformity due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse) cannot adduct the thumb; flexion of wrist weakened." 38 C.F.R. § 4.124a. Complete paralysis is rated as 60 percent for the major extremity and 50 percent for the minor extremity. In this case, the Veteran is right-handed, and thus, the left ulnar nerve is of the minor arm.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. However, the Board notes that these terms refer to the intensity (severity) of a specific event or condition. Mild has been commonly defined as not acute, moderate in action or effect, not sharp, or not being or involving what is extreme or severe. See https://www.merriam-webster.com/dictionary/mild. Moderate has been defined as tending toward the mean or average amount of dimension. See https://www.merriam-webster.com/dictionary/moderate. Whereas severe has been defined as the condition of being of a great degree, of being very bad, serious, unpleasant, or harsh, causing discomfort or hardship, and very painful or harmful. The term "severe" is not synonymous with serious, as an event may be of acute distress but relatively minor medical significance (e.g., a severe headache). See https://www.merriam-webster.com/dictionary/severe.

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).

None of the VA examinations afforded the Veteran during the period on appeal show complete paralysis of the left ulnar nerve. 

A January 2013 VA examiner documented symptoms more consistent with moderate incomplete paralysis of the left ulnar nerve rather than complete paralysis of the left ulnar nerve. The examiner documented mild intermittent pain and mild numbness, but also documented the evidence did not support that the Veteran experienced paresthesias or dysesthesias. Muscle strength testing and a reflex examination were normal, with the exception of reduced grip strength. The Veteran had muscle atrophy and tropic changes; however, he had normal sensory findings. He was able to spread his fingers, extend his ring finger, and adduct his thumb.

The March 2015 VA examiner documented symptoms more consistent with moderate incomplete paralysis of the left ulnar nerve rather than complete paralysis of the left ulnar nerve. The examiner documented moderate constant pain, and moderate numbness, but also documented the evidence did not support that the Veteran experienced paresthesias or dysesthesias. Muscle strength testing and a reflex examination were normal. The Veteran had decreased sensory perception in left forearm and his left hand as well as muscle atrophy; however, he retained active movement against some resistance in his left wrist. He was able to spread his fingers, extend his ring finger, and adduct his thumb. The immobility of the left hand that would characterize complete paralysis of the left ulnar nerve and support a 40 percent rating was not shown.

A February 2021 VA examination for peripheral nerve disabilities also did not document symptoms supporting a 40 percent rating for complete paralysis of the left ulnar nerve. The Veteran reported that when the arm is touched or exposed to pressure, he "will feel the electricity." He also reported increased pain from the elbow down during cold weather or weather changes, noting that the arm often felt cold, even in the summer. The examiner documented moderate constant pain with severe intermittent pain, moderate paresthesias, and moderate numbness of the left upper extremity. The examiner described the totality of the Veteran's left upper extremity symptoms as mild incomplete paralysis of the left ulnar nerve. Atrophy, and a positive Phalen's sign and Tinel's sign was noted; however, the Veteran's left upper extremity did not have any trophic changes. The Veteran had decreased sensory perception in left forearm and his left hand, and he had active movement against some resistance in his left wrist. However, the Veteran retained the ability to spread his fingers, extend his ring finger, and to adduct his thumb, and a reflex examination of the left upper extremity was normal. Muscle strength testing in the upper extremity was normal with the exception of active movement against some resistance when measuring grip strength of the left hand. Given the aforementioned evidence, the Board finds complete paralysis of the left ulnar nerve is not shown in the March 2021 VA examination.

Similarly, an August 2021 VA examination shows symptoms more consistent with severe incomplete paralysis of the left ulnar nerve rather than complete paralysis of the left ulnar nerve. The Veteran continued to report shooting electricity up the left arm with pain, numbness, and tingling. The VA examiner documented moderate constant pain, moderate paresthesias/dysesthesias, and moderate numbness in the left upper extremity. Muscle strength testing in the upper extremity was normal with the exception of active movement against some resistance when measuring grip strength of the left hand. The VA examiner described the paralysis as moderate incomplete paralysis. Furthermore, though the Veteran had decreased sensory perception in left forearm and his left hand, he retained active movement against some resistance in his left wrist, and the reflex examination was normal with the exception of hypoactive reflexes in the left brachioradialis. Additionally, he was able to spread his fingers, extend his ring finger, and adduct his thumb. The immobility of the left hand that would characterize complete paralysis of the left ulnar nerve and support a 40 percent rating was not shown.

Based on the above, the Board finds that the disability is primarily manifested by impairment of motor functions, sensory disturbance, loss of reflexes, pain, and muscle atrophy. The Board also finds that the preponderance of the most probative evidence of record is against a finding that the disability is manifest by complete paralysis as when "the 'griffin claw' deformity due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse) cannot adduct the thumb; flexion of wrist weakened." 8 C.F.R. § 4.124a. The Board thus finds that the level of impairment is most analogous to severe incomplete paralysis.

The Board has considered all other potentially applicable neurological diagnostic codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves. Therefore, a separate or higher rating under a different neurological diagnostic code is not warranted.  

The Board has also considered whether any other diagnostic code is applicable to the Veteran's ulnar nerve and arm disability during the appeal period. 

Disabilities of the Elbow and Forearm

Under Diagnostic Code 5205, for the major side, a 40 percent rating is warranted for favorable ankylosis of the elbow at an angle between 90 degrees and 70 degrees; a 50 percent rating for intermediate ankylosis of the elbow at an angle of more than 90 degrees, or between 70 and 50 degrees; and a 60 percent rating is warranted for unfavorable ankylosis of the elbow at an angle of less than 50 degrees or with complete loss of supination or pronation.

Under Diagnostic Code 5206, limitation of flexion of either the major or minor forearm to 100 degrees warrants a 10 percent rating; limitation of flexion of either forearm to 90 degrees warrants a 20 percent rating; limitation of flexion of the major and minor forearm to 70 degrees warrants 30 and 20 percent ratings, respectively; limitation of flexion of the major and minor forearm to 55 degrees warrants 40 and 30 percent ratings, respectively; and limitation of flexion of the major and minor forearm to 45 degrees warrants 50 and 40 percent ratings, respectively. 38 C.F.R. § 4.71a.

Diagnostic Code 5207 provides that extension of the forearm limited to 45 degrees is rated 10 percent whether it is the major or minor extremity; extension of the forearm limited to 60 degrees is rated 10 percent whether it is the major or minor extremity; extension of the forearm limited to 75 degrees is rated as 20 percent whether it is a major or minor extremity; extension of the forearm limited to 90 degrees is rated at 30 percent for the major extremity and 20 percent for the minor extremity; extension of the forearm limited to 100 degrees is rated at 40 percent for the major extremity and 30 percent for the minor extremity; and extension of the forearm limited to 110 degrees is rated at 50 percent for the major extremity and 40 percent for the minor extremity. 38 C.F.R. § 4.71a. The standard range of motion for the elbow is flexion from 0 to 145 degrees, forearm pronation from 0 to 80 degrees, and forearm supination from 0 to 85 degrees. 38 C.F.R. § 4.71, Plate I.

Under Diagnostic Code 5208, limitation of forearm flexion to 100 degrees with extension to 45 degrees warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5208.

Under 38 C.F.R. § 4.71a, Plate I, normal flexion of the elbow is 0 to 145 degrees, normal forearm pronation is 0 to 80 degrees, and normal forearm supination is 0 to 85 degrees. 38 C.F.R. § 4.71, Plate I.

Diagnostic Codes 5209, 5210, 5211, 5212, or 5213, require evidence of a joint fracture, non-union of the radius or ulna with false flail joint, impairment of the radius or ulna, or impairment of supination or pronation, respectively.

Disabilities of the Wrist

Disabilities of the wrist are rated, generally, under diagnostic codes 5214 and 5215. See 38 C.F.R. § 4.71a.

Diagnostic Code 5214 applies where there is ankylosis of the wrist, so does not apply in this case.

Under Diagnostic Code 5215, a 10 percent rating is warranted for dorsiflexion less than 15 degrees or for palmar flexion limited in line with the forearm. There is no rating in excess of 10 percent available under Diagnostic Code 5215.

In addition, there are special provisions for rating degenerative arthritis under Diagnostic Code 5003. When there is painful motion of a major joint caused by degenerative arthritis that is detected on X-ray, such painful motion will be considered limited motion pursuant to 38 C.F.R. § 4.59. Painful motion is entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even if there is no actual limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991).

Consideration of other Diagnostic Codes for the Elbow, Forearm and Wrist

In a January 2013 VA elbow and forearm examination, the Veteran was diagnosed with a left arm ulnar nerve disability. He was not diagnosed with any other elbow or forearm disability. Upon physical examination, the examiner noted the Veteran had flexion to 145 degrees, extension to 20 degrees, without pain, and with no change in range of motion on repetitive use. There was no deformity, effusion or discoloration, and no pain or tenderness upon palpation, nor evidence of arthritis.

In a February 2021 VA elbow and forearm examination, the Veteran reported that repetitive flexion or extension of the elbow resulted in pain. The Veteran reported pain on flexion, extension, supination, and pronation. Range of motion reports flexion to 140 degrees; extension to 17 degrees; supination to 70 degrees; and pronation to 80 degrees. Pain was noted on flexion, extension, supination, and pronation on examination. There was evidence of pain with weightbearing, non-weightbearing, active motion, passive motion, and on rest/non-movement which resulted in functional loss including fatiguability, pain, weakness, and lack of endurance. There was no change in range of motion following repetitive motion testing. Range of motion reports following repeated use is flexion to 130 degrees; extension to 20 degrees; supination to 65 degrees; and pronation to 70 degrees. There was no change in range of motion following repetitive motion testing. There was muscle atrophy of the left forearm. There was no flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation; nor was arthritis documented.

In an August 2021 VA wrist examination, the Veteran noted he had left wrist pain and stiffness. He reported moderate flare-ups every two months. Range of motion studies revealed dorsiflexion to 60 degrees, palmar flexion to 70 degrees, palmar deviation to 40 degrees; and radial deviation to 15 degrees. Pain was noted on dorsiflexion, palmar flexion, ulnar deviation, and radial deviation. There was evidence of pain with weightbearing, active motion, and passive motion, which resulted in functional loss including increased pain, and difficulty with movement. Range of motion reports following repeated use over time was dorsiflexion to 50 degrees; palmar flexion to 60 degrees; palmar deviation to 35 degrees; and radial deviation to 10 degrees. Range of motion reports during flare-ups was dorsiflexion to 50 degrees; palmar flexion to 60 degrees; palmar deviation to 35 degrees; and radial deviation to 10 degrees. There was objective evidence of muscle atrophy. There was no evidence of ankylosis.

Based on the evidence of record, the Board finds that the evidence does not support an award for an increased rating for the right elbow under 5205, 5206, 5207, or 5208. First, no evidence of record documents, or reasonably suggests, the Veteran had ankylosis of the elbow, or the functional equivalent of ankylosis. Therefore, Diagnostic Code 5205, which deals with elbow ankylosis, is not applicable. Second, the Veteran has not exhibited forearm/elbow flexion limited to 100 degrees and extension to 45 degrees during the appeal period, thus making Diagnostic Code 5208 inapplicable as both limitations must be present. 

The Board recognizes that Diagnostic Code 5206 (limitation of forearm flexion), Diagnostic Code 5207 (limitation of forearm extension), and Diagnostic Code 5215 (limitation of motion of the wrist), individually, are applicable in this instance. But, to award the Veteran a disability rating under these diagnostic codes would constitute impermissible pyramiding because these symptoms are accounted for within the Veteran's rating for his ulnar nerve disability. See 38 C.F.R. § 4.14.

VA regulation 38 C.F.R. § 4.14 prohibits duplicate compensation for the same manifestation (i.e., symptom) of disability under different diagnoses, known as "pyramiding." See generally Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) ("[A] veteran cannot be compensated more than once for the same disability."). "[T]he key consideration in determining whether rating under more than one diagnostic code is in order is whether the ratings under different diagnostic code would be based on the same manifestation of disability or whether none of the symptomatology upon which the separate ratings would be based is duplicative or overlapping." VAOPGCPREC 9-2004. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507.

As the limited elbow flexion and extension are each symptoms of his ulnar nerve disability, he is not entitled to a separate rating for the factors cited in sections 4.40 and 4.45 twice, that being under Diagnostic Code 5206 and Diagnostic Code 5207. Nor is the Veteran entitled to a separate rating for limitation of elbow flexion and extension under his ulnar joint disability. This would constitute pyramiding because it would be compensating the Veteran twice for the same symptoms; they are not separate and distinct. By rating the Veteran's limited elbow flexion in connection with his ulnar nerve disability under Diagnostic Code 8516-5206, the RO provided the Veteran a higher rating than he would have otherwise been afforded solely under Diagnostic Code 8516.

The Board also finds that the evidence does not support a rating for the right elbow under Diagnostic Codes 5209, 5210, 5211, 5212, or 5213, which require evidence of a joint fracture, non-union of the radius or ulna with false flail joint, impairment of the radius or ulna, or impairment of supination or pronation, respectively. VA examinations did not document joint fracture, non-union of the radius or ulna with false flail joints, impairment of the radius or ulna, or impairment of supination or pronation. Additionally, the evidence of record does not document a past fracture or a flail or false flail joint. Thus, the Veteran is not entitled to a rating under any of these diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Codes 5209-13.

Regarding Diagnostic Codes for the wrist, the above evidence establishes that the Veteran does not meet the criteria for a compensable rating under either Diagnostic Code 5214 or Diagnostic Code 5215. The evidence does not show that the disability is manifested by dorsiflexion less than 15 degrees, palmar flexion limited in line with the forearm, or ankylosis.

Based on the above, the Board finds that the Veteran's ulnar nerve disability did not manifest as complete paralysis, nor did his associated symptomatology of limited elbow flexion and extension warrant a higher disability rating than assigned.

Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for the left ulnar nerve disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to the lumbar spine disability.

The Veteran contends that he has a left lower extremity nerve disability, claimed as left lower extremity radiculopathy which has been caused by his service-connected lumbar spine disability.  

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Veteran's service treatment records (STRs) document that he was treated for left lower extremity sciatica and a tender left sciatic notch. The STRs also indicate that the Veteran was treated by a physical therapist for left lower extremity sciatica which was "resolving."

In an April 2009 treatment note, the Veteran's physician noted a diagnosis of left lower extremity radiculopathy.

The June 2010 VA examiner evaluated the Veteran and noted normal findings of the lower left extremity nerve groups. The VA examiner ordered an EMG to rule out radiculopathy. The VA examiner noted that the EMG findings were negative. The VA examiner did not diagnose left lower extremity radiculopathy. However, the VA examiner noted that the Veteran had neurological claudication of the left lower extremity.

An October 2010 VA examiner noted that the Veteran had pain which radiated down the left leg. The examiner determined that the Veteran had normal detailed reflex testing and sensory findings. The examiner did not diagnose the Veteran with any nerve disability of the left lower extremity. 

A January 2013 VA examiner determined that the Veteran had normal detailed reflex testing and sensory findings. The examiner did not diagnose the Veteran with any nerve disability of the left lower extremity.

A March 2015 VA examiner noted that the Veteran had pain that radiated down the left leg. The examiner determined that the Veteran had normal detailed reflex testing and sensory findings. The examiner did not diagnose the Veteran with any nerve disability of the left lower extremity. 

The February 2021 VA examiner evaluated the Veteran and, despite noting severe numbness in the left lower extremity and noting mild incomplete paralysis of the left lower extremity sciatic nerve, declined to diagnose any disability, including left lower extremity radiculopathy.

The August 2021 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of intermittent pain in the left groin, he did not have a diagnosis of left lower extremity radiculopathy. This examiner, unlike the February 2021 VA examiner, did not document that the Veteran had severe numbness in the left lower extremity and instead, documented that the Veteran had no numbness in the left lower extremity. The examiner, also unlike the February 2021 VA examiner, did not document that the Veteran had any abnormality in the left lower extremity sciatic nerve. 

As detailed above, the Board finds that there is conflicting evidence of record regarding whether the Veteran has a clinical left lower extremity nerve diagnosis.

Accordingly, an addendum opinion is required to reconcile the determination that the Veteran does not have a diagnosis of lower extremity radiculopathy with the remainder of the evidence of record and to provide an opinion as to whether any lower extremity radiculopathy is related to the Veteran's documented sciatica and sciatic notch symptoms, or, in the alternative, whether any lower extremity radiculopathy is related to the service-connected lumbar spine disability.

2. Entitlement to a TDIU. 

Finally, because a decision on the remanded issue of entitlement to service connection for left lower extremity radiculopathy could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required.

The matters are REMANDED for the following action:

Forward the record and a copy of this remand to the examiner who conducted the November 2021 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. Due to COVID-19, the Board defers to the examiner's discretion to determine whether in-person examination is required.

The examiner is asked to opine:

(a)	Does the Veteran have a diagnosis of left lower extremity radiculopathy, or any other nerve-related diagnosis in the left lower extremity? 

In providing this opinion, the examiner is asked to consider the entirety of the evidence in the claims file and reconcile the various notations in previous examinations where symptoms of radiculopathy were documented but no diagnosis was made and previous examinations in which no symptoms or diagnosis were documented.

The examiner's attention is drawn to, but not limited to, the following evidence: 

	VBMS entry with document type, "Medical Treatment Record  Government Facility," receipt date 02/24/2010, p. 1. 

	VBMS entry with document type, "VA Examination," receipt date 06/14/2010.

	VBMS entry with document type, "VA Examination," receipt date 10/21/2010.

	VBMS entry with document type, "VA Examination," receipt date 01/07/2013.

	VBMS entry with document type, "C&P Exam," receipt date 03/18/2015.

	VBMS entry with document type, "C&P Exam," receipt date 03/17/2021.

	VBMS entry with document type, "C&P Exam," receipt date 08/05/2021.

(b)	Is any diagnosed left lower extremity radiculopathy at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease?

In providing this opinion, the examiner must specifically comment on the STRs, which document a diagnosis of left side sciatica. See VBMS entry with document type, "STR-Medical," receipt date, 06/12/2015, p. 3.

(c)	If the answer to (b) is negative, is any diagnosed left lower extremity radiculopathy at least as likely as not (50 percent probability or greater) caused by the service-connected lumbar spine disability?

(d)	If the answers to (b) and (c) are negative, is it at least as likely as not (50 percent probability or greater) that any diagnosed left lower extremity radiculopathy is aggravated by the service-connected lumbar spine disability? Aggravation is different from causation in that it did not cause the disability but that it caused an increase in severity that is not due to the natural progress of the disability.

(e)	If the examiner finds that the service-connected lumbar spine disability aggravates any diagnosed left lower extremity radiculopathy the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for any diagnosed left lower extremity radiculopathy prior to aggravation. If the examiner is unable to establish a baseline for any diagnosed lumbar spine radiculopathy prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

The examiner is advised that the Veteran is competent to report symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 

In providing the above opinion, the examiner should be mindful that even if the Veteran's disability has resolved, an opinion is still required regarding the etiology of the diagnosed disability. See McClain v. Nicholson, 21 Vet. App. 319 (2007).

The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.

 

 

A.	Keninger

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael J. O'Connor, 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.