Citation Nr: 21077360 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-27 855 DATE: December 29, 2021 ORDER Entitlement to a disability rating greater than 10 percent prior to January 25, 2018, and greater than 40 percent thereafter, for a lumbar spine disability is denied. Entitlement to a disability rating greater than 10 percent prior to January 25, 2018, and greater than 30 percent thereafter, for a cervical spine disability is denied. Entitlement to a disability rating greater than 30 percent for an acquired psychiatric disability is denied. Entitlement to a disability rating greater than 20 percent for a right shoulder disability is denied. Entitlement to an earlier effective date than November 7, 2013 for a 30 percent rating for an acquired psychiatric disability is denied. FINDINGS OF FACT 1. The record evidence shows that, prior to January 25, 2018, the Veteran's lumbar spine disability did not result in forward flexion of the thoracolumbar spine of 60 degrees or greater, a combined range of motion of the thoracolumbar spine of 120 degrees or greater, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or ankylosis of the spine, nor was bed rest prescribed to treat incapacitating episodes of intervertebral disc syndrome. 2. The record evidence shows that, effective January 25, 2018, the Veteran's lumbar spine disability did not result in unfavorable ankylosis of the thoracolumbar spine or the entire spine, nor was bed rest prescribed to treat incapacitating episodes of intervertebral disc syndrome. 3. The record evidence shows that, prior to January 25, 2018, the Veteran's cervical spine disability did not result in forward flexion of 30 degrees or greater, a combined range of motion of the cervical spine greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal cervical spinal contour, or ankylosis of the spine. 4. The record evidence shows that, effective January 25, 2018, the Veteran's cervical spine disability did not result in unfavorable ankylosis of the cervical spine or the entire spine nor was bed rest prescribed to treat incapacitating episodes of intervertebral disc syndrome. 5. The record evidence shows that, for the entire appeal period, the Veteran's acquired psychiatric disorder is manifested by occupational and social impairment with at most occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 6. The record evidence shows that the Veteran's right shoulder disability is productive of no worse than arm limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees). 7. The record evidence shows that the Veteran filed an original claim for service connection for an acquired psychiatric disability (originally claimed as posttraumatic stress disorder (PTSD) with sleep disturbance) on August 3, 2007. 8. The record evidence shows that the RO granted service connection for an acquired psychiatric disability in a December 26, 2007 rating decision which was not appealed and became final. 9. The record evidence shows that, on November 7, 2013, VA received the Veteran's increased rating claim for his service-connected acquired psychiatric disability. 10. The record evidence shows that it is not factually ascertainable that the Veteran's acquired psychiatric disability warranted a 30 percent rating in the 1 year period prior to November 7, 2013. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent prior to January 25, 2018, and greater than 40 percent thereafter, for a lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a disability rating greater than 10 percent prior to January 25, 2018, and greater than 30 percent thereafter, for a cervical spine disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. The criteria for a disability rating greater than 30 percent for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 9411. 4. The criteria for a disability rating greater than 20 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155 , 5107; 38 C.F.R. § 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71a, DC 5201. 5. The December 2007 rating decision is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 6. The criteria for an earlier effective date than November 7, 2013 for a 30 percent rating for service-connected acquired psychiatric disability have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2002 to October 2007 and from October 2008 to October 2009 in the U.S. Army. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA). In January 2019, the Board, in part, remanded the appeal to the Agency of Original Jurisdiction (AOJ) in order to schedule the Veteran for VA examinations to determine the current severity of the disabilities on appeal. He did not contact the VA Medical Center to schedule the examinations and, as a result, the examinations were canceled. In a February 2020 statement to VA, the Veteran requested that VA rate the disabilities on appeal using the Disability Benefit Questionnaires (DBQs) dated in January 2018 which he provided to VA. Thus, the Board will adjudicate the claims based upon the evidence of record. Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. The Board notes that the issue of entitlement to a TDIU also was developed for appellate review in January 2019. The AOJ granted TDIU effective March 9, 2017, in a June 2020 rating decision. In a November 2020 rating decision, the AOJ assigned an earlier effective date of February 3, 2014 for TDIU. That same month, the RO discontinued TDIU after the Veteran failed to submit VA Form 21 8940. He retained an overall 100 percent schedular rating. Thus, the TDIU claim is moot and will not be adjudicated in this decision. On February 7, 2021, revisions to the Schedule for Rating Disabilities for the musculoskeletal system went into effect. In this case, the revisions to the regulations do not change how the lumbar spine is rated. Entitlement to a disability rating greater than 10 percent prior to January 25, 2018, and greater than 40 percent thereafter, for a lumbar spine disability The evidence of record does not show that the Veteran has experienced any IVDS throughout the appeal period. VA examiners did not indicate the presence of IVDS. Moreover, there is no evidence showing that the Veteran has ever been prescribed bed rest to treat his lumbar spine disability. Thus, as prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate and it is therefore more beneficial to evaluate the Veteran's lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine for the period prior to and after January 25, 2018. The Board finds that the weight of the evidence is against a rating greater than 10 percent prior to January 25, 2018, for the lumbar spine. The Veteran was afforded a VA examination in March 2015. The Veteran had forward flexion of the thoracolumbar spine to 85 degrees. His total range of thoracolumbar spine motion was 235 degrees. The Veteran had pain on movement of the lumbar spine but without any functional loss. A sensory examination was within normal limits. There was no evidence of any pain with weight bearing. There was no evidence of any radiculopathy of either the right or left extremity. The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional functional loss. There was no evidence of any muscle spasms or atrophy. The Veteran had tenderness of the lumbar spine that did not result in any abnormal gait, spinal contour or guarding. A straight-leg raise test was negative. There was no evidence of any ankylosis of the thoracolumbar spine. The examiner noted that the Veteran regularly used a left shoe insert. Here, the weight of the evidence does not demonstrate limitation of motion consistent with a rating greater than 10 percent. He showed forward flexion to 85 degrees and a total range of motion of 235 degrees. The Board acknowledges that he had objective evidence of pain on examination but it did not result in any additional loss in terms of range of motion. There was no indication that his range of motion was greater than 30 degrees, but not greater than 60 degrees or a combined range of motion of the thoracolumbar spine not greater than 120 degrees. The VA examiner also reported that although the Veteran had pain on palpation only in the right mid-thoracic region, he did not have guarding or muscle spasms. The Board acknowledges the Veteran's complaints of low back pain. He was assigned a 10 percent rating for his lumbar spine disability based on painful motion. The Board does not have the discretion to assign a rating greater than 10 percent based solely on painful motion. Moreover, the examination report provides a definitive, objective assessment of the Veteran's spinal disability and is the best evidence as to the state of the spinal disability prior to January 25, 2018. The Board next finds that the weight of the evidence is against a disability rating greater than 40 percent effective January 25, 2018, for the Veteran's lumbar spine disability. Here, a private DBQ dated January 25, 2018, reflects that the medical evidence of record indicates the Veteran's forward flexion, accounting for pain, functional loss, and repetitive use testing, was 25 degrees. A rating greater than 40 percent requires unfavorable ankylosis which is not indicated by the medical evidence of record. Where, as here, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion (in this case, 40 percent for the back), further DeLuca analysis is foreclosed. See Johnston v. Brown, 10 Vet. App. 80 (1997). In other words, the required degree of impairment for a disability rating greater than 40 percent is not shown. In addition to rating the orthopedic impairment caused by a back disability, the Board also must consider any neurologic manifestations of a lower back disability. The medical evidence of record clearly indicates negative results for radiculopathy or other objective neurological abnormalities at both VA examinations. The treatment records also do not show any objective neurological abnormalities. Therefore, a separate rating for neurologic impairment as a result of the back disability is not warranted for any period on appeal. Entitlement to a disability rating greater than 10 percent prior to January 25, 2018, and greater than 30 percent thereafter, for a cervical spine disability The Board notes that the Veteran's 10 percent and 40 percent ratings for the service-connected cervical spine disability are based on painful motion. He was afforded a VA examination in March 2015. He reported that he had moderate flare-ups of the cervical spine 4 to 5 times a month without any radicular symptoms. On examination, he showed forward flexion to 45 degrees, extension to 45 degrees, bilateral lateral flexion to 45 degrees, and bilateral lateral rotation to 80 degrees. There was objective evidence of painful motion in all planes of motion, but without any functional loss. The Veteran was able to perform repetitive use testing with no additional loss in terms of range of motion. The examiner reported that the Veteran did not have guarding or muscle spasm of the cervical spine. Muscle strength testing showed normal strength in all planes of motion. There was no evidence of ankylosis of IVDS. VA treatment records during the period prior to June 25, 2018 reflect that when the Veteran presented to the VA clinic in February 2014, he was able to flex his neck without any restriction of movement. Here, the weight of the evidence does not demonstrate limitation of motion consistent with a rating greater than 10 percent prior to June 25, 2018 for the Veteran's service-connected cervical spine disability. He showed full range of motion at the March 2015 VA examination. The Board acknowledges that he had objective evidence of pain on examination but it did not result in any additional loss in terms of range of motion, to include on repetitive-use testing. There was no indication that his forward flexion of the cervical spine was limited to 30 degrees or less or the combined range of motion of the cervical spine was limited to 170 degrees or worse. In reaching this conclusion, the Board has considered whether a higher disability evaluation was warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. Here, the Veteran clearly experienced painful motion on range of motion testing at the March 2015 VA examination. Even if his range of motion were slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran is already in receipt of the minimum compensable rating under this provision during this period on appeal. And the pain was not shown to limit his functional range of motion as to warrant a rating greater than 10 percent prior to January 25, 2018, for the cervical spine disability. The Board acknowledges the Veteran's complaints of neck pain and the limitation which it causes him. He has not identified findings consistent with a higher rating than is currently assigned for his service-connected cervical spine disability. Thus, the Board finds that the criteria for a disability rating greater than 10 percent prior to June 25, 2018, for a cervical spine disability is denied. Regarding the Veteran's claim for a rating greater than 30 percent effective June 25, 2018, the Board next finds that the weight of the evidence does not support a 50 or a 100 percent rating for a cervical spine disability. To achieve a 50 percent or a 100 percent rating, the Veteran must show evidence of ankylosis. The clinical evidence of record has not established such findings. A review of the Veteran's VA treatment records does not reveal any evidence of ankylosis. And the VA examination and treatment reports do not disclose any evidence of ankylosis of the cervical spine. He also has not described the symptoms of ankylosis. In summary, the Board finds that the criteria for a disability rating greater than 30 percent effective June 25, 2018, for a cervical spine disability is denied. As noted above, the Board also must consider any neurologic manifestations of a cervical spine disability. The medical evidence of record clearly indicates negative results for upper extremity radiculopathy or other objective neurological abnormalities at both VA examinations. The treatment records also do not show any objective neurological abnormalities. Therefore, a separate rating for neurologic impairment as a result of the cervical spine disability is not warranted for any period on appeal. Entitlement to a disability rating greater than 30 percent for an acquired psychiatric disability VA examinations of the Veteran performed in March 2015 and October 2019, reflect that he had depression, anxiety and sleep impairment. The October 2019 VA examiner concluded that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The October 2019 report reflects that the Veteran reported having graduated law school and being employed as an attorney. VA treatment records during the appeal reflect that the Veteran indicated that his depression was being managed by medication. The findings and opinions expressed in the 2015 and 2019 examinations do not support a higher rating. The Board finds that they are probative and consistent with the evidence of record. The Veteran has not shown social or occupational impairment that would support the assignment of a higher rating. Looking at the psychiatric symptoms which exemplify a 50 percent rating, they are simply not shown to be present during the course of this appeal. The Veteran has not shown communication difficulty or panic attacks. His social and family interaction suggest that his acquired psychiatric disability does not cause difficulty in establishing or maintaining effective work and social relationships. In other words, the Board finds that the symptoms associated with the Veteran's acquired psychiatric disability are contemplated by the rating criteria and are productive of occupational and social impairment consistent with a 30 percent rating. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 30 percent for his service-connected acquired psychiatric disability. In summary, the Board finds that the criteria for a disability rating greater than 30 percent for an acquired psychiatric disability have not been met. Entitlement to a disability rating greater than 20 percent for a right shoulder disability The Veteran seeks a rating in excess of 20 percent for a right shoulder disability. As noted elsewhere, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect although they do not have any retroactive application. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied from February 7, 2021. VA examined the Veteran in March 2015. At that examination, the Veteran reported that he had daily moderate flare-ups of the right arm. His range of motion of the right shoulder was reported as normal. There was pain on examination of the right shoulder, but it did not result in or cause any functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional functional loss or range of motion after three (3) repetitions. There was no tenderness on palpation of the acromioclavicular joint. Based upon the foregoing, the Veteran's right shoulder range of motion does not qualify for the assigment of a higher rating of 30 percent schedular disability rating under any of the applicable diagnostic codes, to include DC 5201. First, the Veteran's right shoulder is rated under DC 5201. As reflected in the most recent VA examination, the Veteran's right shoulder disability does not include ankylosis. Because there is no right shoulder ankylosis, DC 5200 is not applicable. Next, the record does not show loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. He did not have malunion of the humerus with moderate or marked deformity or a humerus condition. The March 2015 VA examination does not show evidence of any dislocation, nonunion, or malunion of the clavicle or scapula. As such, DC 5201 also is inapplicable. The Veteran is right-handed so his right shoulder is his dominant shoulder. When considering whether a higher rating is warranted under DC 5201, the Board finds that a 30 percent rating is not warranted. The probative evidence does not show that his right arm range of motion is limited to 25 degrees from his side even considering the competent reports of his symptoms. There was no muscle atrophy and ankylosis is no longer indicated. There was no reduction in muscle strength and range of motion was normal at the March 2015 examination. These symptoms are contemplated by the currently assigned 20 percent rating. Considering the DeLuca factors and the evidence of record, the Board finds that the current 20 percent rating adequately compensates the Veteran for any functional loss due to pain affecting the shoulder. DeLuca, 8 Vet. App. at 204-7. Such rating compensates him for pain experienced to include his reported daily moderate pain. Even when considering the Veteran's pain, the range of motion findings did not reveal limitation of motion that would more nearly approximate limitation of motion to 25 degrees from the side. As such, an increase due to functional impairment would not be appropriate under the criteria of 38 C.F.R. §§ 4.40 and 4.45. There also is no evidence that the Veteran's flareups have cause functional loss that would equate to a limitation of motion to 25 degrees from his side. In a February 2020 statement, he requested that VA rate his disabilities based on the evidence of record. Regardless, the Veteran is not competent to assess the level of severity of the residuals of his right shoulder disability. The Board recognizes that the Veteran's right shoulder is painful. This is contemplated by the currently assigned 20 percent rating. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 20 percent for his service-connected right shoulder disability. In summary, the Board finds that the criteria for a disability rating greater than 20 percent for a right shoulder disability is not warranted. Entitlement to an earlier effective date than November 7, 2013 for a 30 percent rating for an acquired psychiatric disability The Veteran seeks an effective date earlier than November 7, 2013 for the grant of an increased 30 percent rating for an acquired psychiatric disability. He contends that the effective date of the 30 percent rating should be the date VA received he was originally awarded service connection on October 23, 2007. By way of history, the Veteran initially filed a service connection claim for an acquired psychiatric disability in August 2007. By a December 2007 rating decision, the RO granted service connection for an acquired psychiatric disability; an initial noncompensable rating was assigned effective October 23, 2007, the day after the Veteran's discharge from his first period of active military service. Thereafter, VA received the Veteran's claim for increased compensation for an acquired psychiatric disability on November 7, 2013. Following a March 2015 VA examination, the RO granted an increased 30 percent rating to the service-connected acquired psychiatric disability effective the date of receipt of the claim for increased compensation, November 7, 2013, in the appealed March 2015 rating action. The Board finds that an earlier effective date than November 7, 2013, for the award of a 30 percent rating for an acquired psychiatric disability is not warranted. First, there is no evidence that the Veteran filed an increased rating claim (formal or informal) after the final December 2007 rating action and prior to receipt of the claim for increased compensation on November 7, 2013. The Veteran does not dispute this point. Having determined that the date of receipt of the Veteran's claim for an increased rating for his service-connected acquired psychiatric disability was November 7, 2013, the Board next must look to all the evidence of record to determine if any increase in disability was factually ascertainable in the year prior to the date of receipt of the claim (i.e., November 7, 2012 to November 7, 2013). See 38 C.F.R. § 3.400(o). The evidence of record contains no basis upon which to conclude that there was a factually ascertainable increase in the severity of the Veteran's acquired psychiatric disability in the year prior to the date of receipt of his claim (i.e., November 7, 2012 to November 7, 2013). Here, by the appealed March 2015 rating action, the RO granted an increased 30 percent rating based on the findings of a March 2015 VA DBQ. Reviewing the record, there is no document within the year prior to November 7, 2013 (November 7, 2012 to November 7, 2013), which would make it factually ascertainable that the Veteran's acquired psychiatric disability warranted a 30 percent rating. The United States Court of Appeals for Veterans Claims (Court) has made it clear that there can be no freestanding claim for an earlier effective date because that would be contrary to the principle of finality. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (prohibiting a collateral attack on a final rating action by filing a freestanding earlier effective date claim). There is no basis for assigning an earlier effective date than November 7, 2013, for an award of a 30 percent rating for the service-connected acquired psychiatric disability. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(2). In summary, the Board finds that the criteria for an earlier effective date than November 7, 2013, for a 30 percent rating for an acquired psychiatric disability have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.