Citation Nr: 21005447
Decision Date: 02/01/21	Archive Date: 02/01/21

DOCKET NO. 15-16 035
DATE: February 1, 2021

ORDER

Entitlement to a rating in excess of 20 percent for a right shoulder disability is denied.

Entitlement to a rating in excess of 10 percent for a lumbar spine disability prior to August 20, 2019 is denied.

From August 20, 2019, a rating of 40 percent for a lumbar spine disability, but no higher, is granted. 

Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is denied.  

Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is denied.  

Entitlement to service connection for a right knee disorder is denied.

Entitlement to service connection for a left knee disorder is denied.

Entitlement to service connection for a left shoulder disorder is denied.

Entitlement to service connection for right ear hearing loss is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran’s right shoulder disability is manifested by flexion and abduction limited to, at most, 100 degrees.

2. For the period prior to August 20, 2019, the Veteran’s lumbar spine was manifested by flexion limited to, at most, 80 degrees.  There is no evidence of ankylosis.

3. For the period since August 20, 2019, the Veteran’s functional impairment of the lumbar spine warrants the next higher rating of 40 percent. 

4. For the entire appeals period, the competent and credible evidence shows the Veteran’s radiculopathy of the right lower extremity is manifested by moderate incomplete paralysis of the sciatic nerve.

5. For the entire appeals period, the competent and credible evidence shows the Veteran’s radiculopathy of the left lower extremity is manifested by moderate incomplete paralysis of the sciatic nerve.

6. The preponderance of the evidence is against finding that the Veteran has a right knee disorder due to a disease or injury in service, to include a specific in-service event, injury, or disease. 

7. The preponderance of the evidence is against finding that the Veteran has a left knee disorder due to a disease or injury in service, to include a specific in-service event, injury, or disease. 

8. The preponderance of the evidence is against finding that the Veteran has a left shoulder disorder due to a disease or injury in service, to include a specific in-service event, injury, or disease. 

9. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of right ear hearing loss for VA purposes.  

CONCLUSIONS OF LAW

1. The criteria are not met for a rating in excess of 20 percent for the right shoulder disability.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 

2. For the period prior to August 20, 2019, the criteria for a rating in excess of 10 percent for the lumbar spine disability have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5243.

3. For the period since August 20, 2019, the criteria for a rating of 40 percent, but no higher, for the lumbar spine disability have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5243.

4. The criteria are not met for an initial rating in excess of 20 percent for radiculopathy of the right lower extremity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8620. 

5. The criteria are not met for an initial rating in excess of 20 percent for radiculopathy of the left lower extremity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8620. 

6. The criteria for service connection for a right knee disorder have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 

7. The criteria for service connection for a left knee disorder have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 

8. The criteria for service connection for a left shoulder disorder have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 

9. The criteria for service connection for right ear hearing loss have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1985 to January 1986 and from April 1986 to January 1996.  The Veteran presented testimony before the undersigned Veterans Law Judge of the Board in March 2018.  

In July 2018, the Board previously remanded these claims to the RO for additional development and consideration.

An April 2020 rating decision, issued during the pendency of the appeal, granted service connection for left ear hearing loss and tinnitus.  These grants of service connection represent full grants of the benefits sought on appeal.  

Additionally, the April 2020 rating decision awarded a rating of 20 percent for the lumbar spine disability, effective from August 20, 2019.  However, a higher rating is available for this disability.  The Veteran is presumed to seek the maximum available benefit for a disability and, as such, this claim is still considered to be on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

With respect to the claims on appeal, all requested actions have been completed and the appeal is once again before the Board.  

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R.§ 4.1 (2020). 

Under 38 C.F.R. § 4.71a (2020), which sets forth the schedular rating criteria for the musculoskeletal system, Diagnostic Code 5010 directs VA to rate arthritis due to trauma under degenerative arthritis, or Diagnostic Code 5003.  Diagnostic Code 5003 provides that degenerative arthritis is to be evaluated on the basis of limitation of motion as per the diagnostic codes for the specific joint or joints.  Id.  If, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion.  Id.  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, a 10 percent rating can be assigned where there is x-ray evidence of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating can be assigned if such involvement includes occasional incapacitating episodes.  Id.  Note (1) under Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion.  Id.

1. Right shoulder disability

The Veteran is currently rated at 20 percent for his right shoulder disability, diagnosed as tendonitis, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5201, effective from April 4, 2006.  He is seeking a higher rating for this disability.  

By way of procedural background, the RO initially granted entitlement to service connection for this disability in a February 2007 rating decision, and assigned an initial rating of 20 percent, effective from April 4, 2006.  The Veteran most recently filed a claim for an increased rating for this disability on September 4, 2012.  Consequently, the relevant temporal focus for the increased rating claim is from September 4, 2011.  

In a subsequent March 2015 rating decision, issued during the pendency of this appeal, the RO decreased the rating for the right shoulder to 10 percent, effective from October 24, 2014, the date of a VA Shoulder and Arm Conditions Disability Benefit Questionnaire (DBQ).  However, the RO restored the 20 percent rating, effective from October 24, 2014, in a September 2016 rating decision, such that the 20 percent rating has been in effect for the entire appeals period.     

Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203.  The Federal Circuit has held that the plain language of 38 C.F.R. § 4.71(a) confirms that a veteran is only entitled to a single disability rating under Diagnostic Code 5201 for each arm that suffers from limited motion at the shoulder joint.  The diagnostic code 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 (Fed. Cir. 2013).

Diagnostic Codes 5200-5203 distinguish between the major (dominant) extremity and the minor (non-dominant) extremity.  See 38 C.F.R. § 4.69 (2020).  The evidence shows the Veteran to be right-hand dominant.  See September 2013 VA Shoulder and Arm Conditions DBQ.  Given such, the applicable rating will be assigned under the “Major” rating.

Diagnostic Code 5201 provides that limitation of motion of the arm at shoulder level warrant a 20 percent rating.  Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity.  Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.

Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees.  38 C.F.R. § 4.71, Plate I.

Factual Background

During the appeals period, the Veteran was first examined by VA in September 2013 in connection with his claim of entitlement to an increased rating for this disability.  At that time, the Veteran reported flare-ups, which he described as pain that would not go away.  Range of motion testing revealed flexion to 180 degrees, with pain at 160 degrees; and, abduction to 180 degrees, with pain at 160 degrees.  Internal and external rotation were noted to be to 90 degrees, with no evidence of painful motion.  The Veteran was able to perform repetitive testing without additional limitation in range of motion testing.  However, functional loss and/ or limitation was noted in the form of pain on movement.  There was no evidence of pain on palpation.  Pain, weakness, fatigue, and incoordination were noted as contributing factors.  The Veteran’s right shoulder muscle strength was normal.  There was no evidence of muscle atrophy, ankylosis, instability, or impairment of the humerus.  Similarly, there was no evidence of clavicle, scapula, sternoclavicular, or acromioclavicular (AC) joint impairment.  The examiner noted negative results for Hawkins Impingement Test, Empty-Can Test, and External Rotation/ Infraspinatus Strength Test.  A positive Lift-off Subscapularis Test was noted.  However, x-ray findings determined there was no evidence of arthritis or any other significant diagnostic results.  The examiner noted that she was unable to speculate on flare-ups on additional limitations due to pain, weakness, fatiguability, or incoordination, or provide an estimated degree of additional range of motion lost.  See September 2013 VA Shoulder and Arms Condition DBQ. 

The Veteran was next examined by VA in October 2014.  See October 2014 VA Shoulder and Arms DBQ.  During this examination, the examiner confirmed the prior diagnosis of tendonitis and included a diagnosis of degenerative joint disease of the right shoulder.  The Veteran again reported flare-ups which he stated resulted in an inability to do any heavy lifting and decreased range of motion.  Range of motion testing revealed flexion to flexion to 160 degrees, with pain at 155 degrees; and, abduction to 160 degrees, with pain at 155 degrees.  Internal and external rotation were noted to be to 85 degrees, with evidence of painful motion at 80 degrees, bilaterally.  The Veteran was able to perform repetitive testing without additional limitation in range of motion testing.  However, functional loss and/ or limitation was noted in the form of less movement than normal, fatiguability, and pain on movement.  There was evidence of pain on palpation, but no guarding.  The Veteran’s right shoulder muscle strength was normal.  There was no evidence of muscle atrophy, ankylosis, instability, or impairment of the humerus.  Similarly, there was no evidence of clavicle, scapula, sternoclavicular, or acromioclavicular (AC) joint impairment.  The examiner noted positive results for Hawkins Impingement Test, Empty-Can Test, External Rotation/ Infraspinatus Strength Test, and Lift-off Subscapularis Test was noted.  X-ray findings determined there was evidence of arthritis, and space narrowing of the AC joint, with marginal degenerative hypertrophic bone spurring.  

The examiner noted that pain, weakness, fatigue, and incoordination were noted as contributing factors, with additional limitation of functional ability of the shoulder joint during flare-ups or with repeated use over a period of time.  Further, she was unable to provide an estimated degree of range of motion loss during a flare-up as the examination did not occur during a flare.  See October 2014 VA Shoulder and Arms Condition DBQ.

The Veteran was most recently examined by VA in an August 2019 VA Shoulder and Arm Conditions DBQ.  The Veteran stated that his right shoulder disability is characterized by pain and decreased range of motion.  He stated that during a flare-up the pain gets so bad he cannot stand it.  As for functional limitations, he reported the inability to lift things or do certain type of activities because of the decreased range of motion and pain in the shoulders.  Range of motion testing revealed flexion to 100 degrees, abduction to 100 degrees, external rotation to 70 degrees, and internal rotation to 60 degrees.  Pain was reported on examination with respect to flexion and abduction.  The examiner also stated there was evidence of pain on weight bearing and non-weight bearing, as well as for passive range of motion testing.  There was no evidence of crepitus or localized tenderness or pain on palpation.  The Veteran was able to perform repetitive testing without additional functional loss or range of motion.  Pain and fatigability were noted to significantly limit functional ability with repeated use over a period of time and during a flare-up, but range of motion testing was not available due to the fact the Veteran was unable to lift his arm as high or reach behind back.  Further, while the examiner noted the examination was not conducted during a flare-up, the examination is medically consistent with the Veteran’s statements describing functional loss during flare up.  Less movement than normal due to pain was also listed as a contributing factor for this disability.  

The Veteran’s right shoulder muscle strength was normal.  There was no evidence of muscle atrophy, ankylosis, instability, or impairment of the humerus.  Similarly, there was no evidence of clavicle, scapula, sternoclavicular, or acromioclavicular (AC) joint impairment.  The examiner noted negative results for Hawkins Impingement Test, Empty-Can Test, External Rotation/ Infraspinatus Strength Test, and Lift-off Subscapularis Test was noted.  X-ray findings determined there was evidence of arthritis of the AC joint, and cross-body adduction was positive.   

The Board also notes that there are VA and private treatment records associated with the claims file.  However, these records do not contain any additional objective range of motion of findings materially different from the findings included in the VA examinations discussed above.  In fact, these records primarily show the Veteran’s continued treatment for his right shoulder disability throughout the pendency of the appeal.  Specifically, an October 2017 physical assessment, received by VA in April 2018, notes the Veteran’s functional limitations in gripping and reaching overhead.  It also shows a 25 percent decrease in hands and arms use over an 8 hour work day, and shows evidence of chronic shoulder pain.  See October 2017 Physical Assessment.  However, there are no range of motion findings included in this assessment.   

The Veteran also submitted lay statements in support of his claim for a higher rating.  Specifically, he has reported extreme pain in the shoulder.  See September 2008 Statement in Support of Claim, and March 2018 Board Hearing Transcript.  A September 2010 statement from his wife notes that the Veteran has problems holding a job due, in part, to his shoulder disability.  

Analysis

The Board finds that the Veteran’s symptoms of his right shoulder disability most closely approximates the criteria for the currently assigned 20 percent rating.  In this case, Veteran’s limitation of motion for forward flexion and abduction were limited to, at worst, 100 degrees.  See August 2019 VA Shoulders and Arms Conditions DBQ.  

As an initial matter, the Board notes a rating higher than 20 percent for the right shoulder is not available under Diagnostic Code 5003 as the Veteran is already in receipt of the highest rating under this code.  See Diagnostic Code 5003.

While the Veteran has also reported right shoulder pain, limitation of motion, fatigability, an inability to perform overhead activities, and flare-ups, the evidence does not demonstrate that limitation of the right arm is to 25 degrees from the side at any time.  See again September 2013, October 2014, and August 2019 VA Shoulders and Arms Conditions DBQs.  As such, based on the objective evidence of record, an increased 30 percent rating is not warranted. 

The Board has also considered whether a higher rating is warranted under any other diagnostic code for the shoulder.  In this respect, an evaluation in excess of 20 percent is available if there is ankylosis of the scapulohumeral articulation, recurrent dislocation of the humerus with frequent episodes and guarding of all arm movements, fibrous union of the humerus, nonunion of the humerus (false flail joint), loss of head of the humerus (flail shoulder), or malunion of the humerus with marked deformity.  38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202.  The Board notes, however, that the Veteran’s right shoulder is not productive of ankylosis of scapulohumeral articulation or impairment of the humerus.  The VA examinations specifically note no ankylosis, no shoulder instability, and no impairment of the humerus.  Thus, the Board finds that Diagnostic Codes 5200 and 5202 are not for application. 

Further, a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss—i.e., “the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance”—including as due to pain.  38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017).  A higher disability evaluation may also be awarded where there is a reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.  38 C.F.R. § 4.45 (2020).  However, the Veteran’s functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45.   See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016).

Here, the Board finds that the Veteran is not entitled to a higher rating based on additional functional loss because even when considering the Veteran’s reported right shoulder symptomatology including pain and fatigability, the reported symptomatology does not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 20 percent at any point during the appeals period under 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca, where none of the VA examiners found additional limitations after three repetitions of range of motion or during flare-ups.  Id.; see again September 2013, October 2014, and August 2019 VA Shoulders and Arms Conditions DBQs.   

In addition, the discussion above reflects that all the symptoms of the Veteran’s service-connected right shoulder disability are contemplated by the applicable rating criteria.  The various functional loss factors of his disability, including pain, fatigability, limitation in motion, and lack of endurance have been fully considered and are contemplated in the rating schedule.  That is, the Board finds that these symptoms are contemplated under the relevant rating criteria and under the Deluca criteria, including §§ 4.40 and 4.45, which compensate for limitation of motion, and symptoms such as pain, weakness, and fatigability in producing functional limitations.  38 C.F.R. § 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 44; Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).  Moreover, even considering his subjective complaints of pain and other symptoms described in DeLuca, the evidence of record shows that motion of the Veteran’s right arm is limited to above shoulder level, or 100 degrees, which is properly rated as 20 percent disabling under Diagnostic Code 5201.  See again September 2013, October 2014, and August 2019 VA Shoulders and Arms Conditions DBQs.   

Finally, with respect to the failure of the September 2013and October 2014 VA Shoulders and Arms Conditions DBQs to adequately address and consider the requirements as delineated in Correia v. McDonald and Sharp v. Shulkin, the Board finds that the August 2019 VA Shoulders and Arms Conditions DBQ corrected this error.  Specifically, it was noted there was evidence of pain on passive and active motion, as well as on weight-bearing and non-weight bearing.  The August 2019 VA examiner also noted that flare-ups resulted in functional limitations productive of pain and an inability to lift/ hold items overhead.  While the Board notes the Veteran is competent to describe the limitations he experiences during the flare-ups, the 20 percent rating currently in effect contemplates motion limited to shoulder level or even midway between his side and shoulder level.  The Veteran has not indicated that his right arm is limited to 25 degrees from the side, even during the reported flare-ups.  In fact, his statements are that he cannot elevate the arms, which would indicate that he suffers from ankylosis, a fact which has been dispelled during the multiple examinations discussed above.  Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).  Nevertheless, as discussed above, the evidence does not demonstrate that limitation of motion of the right arm is limited to 25 degrees from the side at any time.  As such based on the evidence of record, an increased 30 percent rating is not warranted.  

The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his right shoulder disability submitted during the course of his appeal, to include the September 2010 statement from his wife and his March 2018 Board hearing testimony.  To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects.  The Board is likewise aware of the Veteran’s contentions that his right shoulder disability impacts his employability and daily activities.  Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and limitation of motion.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely, determinations as to range of motion of the right shoulder and functional impairment are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The medical evidence also largely contemplates the Veteran’s descriptions of his symptoms, including his reports of impairment with respect to physical activities, such as raising his arms above his head, chronic pain, and fatigability.  The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

In sum, the evidence deemed most probative by the Board establishes that the Veteran’s right shoulder disability more nearly approximates the criteria for the currently assigned 20 percent rating and a higher rating is not warranted.  Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102.  For these reasons, the claim is denied.

2. Lumbar spine disability

The Veteran is seeking entitlement to a rating in excess of 10 percent for a lumbar spine disability prior to August 20, 2019, and a rating in excess of 20 percent since.  He is presently rated under Diagnostic Codes 5242-5232.  

By way of procedural background, the RO initially granted entitlement to service connection for this disability in a February 2007 rating decision, and assigned an initial rating of 10 percent, effective from April 4, 2006.  The Veteran most recently filed a claim for an increased rating for this disability on September 4, 2012.  Consequently, the relevant temporal focus for the increased rating claim is from September 4, 2011.  Finally, during the pendency of this appeal in April 2020, the RO granted the Veteran a 20 percent rating for his lumbar spine disability, effective from August 20, 2019.  

Diagnostic Code 5242-5243 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020).

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 

The General Rating Formula provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is assigned 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 

Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  See also Plate V, 38 C.F.R. § 4.71a.  When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula, rating for degenerative arthritis under Diagnostic Code 5003 should also be considered.  38 C.F.R. § 4.71a.

The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (effective September 26, 2003) provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.

Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 

The General Rating Formula for Diseases and Injuries of the Spine, provide further guidance in rating diseases or injuries of the spine.  In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code.  Here, the Board notes the Veteran has already been assigned separate ratings for radiculopathy of the right and left lower extremities.  As such, these disabilities will be addressed below.  

Factual Background

During the appeals period, the Veteran was first examined by VA in connection with his claim for an increased rating in a September 2013 VA Back Conditions DBQ.  At that time, the Veteran stated that sometimes he would wake up and could not move.  He also reported flare-ups of the lumbar spine disability, which resulted in difficulty in lifting, carrying, and bending.  He also reported that walking and standing is limited, which required breaks at work.  Range of motion testing revealed flexion to 90 degrees, extension to 30 degrees, right and left lateral rotation to 30 degrees, and right and left lateral extension to 30 degrees.  There was no evidence of pain on motion.  The Veteran was able to perform repetitive testing with no decrease in range of motion or additional functional impairment/ limitations.  There was also no evidence of pain on palpation, muscle spasms, or muscle atrophy.  

Muscle strength, deep tendon reflexes, and sensory examinations were all normal.  Additionally, straight leg raising was negative and there was no evidence of radiculopathy.  There was also no evidence of other neurological impairments such as bowel or bladder impairment, and no evidence of IVDS.  The examiner also stated there was no evidence of abnormal posture or gait.  Finally, there was no evidence of contributing factors such as pain, weakness, fatigability, or incoordination during flare-ups or over time that could significantly limit the functional ability of the lumbar spine.  

In October 2014, the Veteran was again examined by VA to assess the severity of his lumbar spine disability.  At that time, the VA examiner noted the diagnosis of lumbar strain and also indicated evidence of IVDS bilateral sciatic nerve.  The Veteran again reported flare-ups of the lumbar spine disability, which resulted in difficulty in lifting and decreased range of motion.  He also reported stiffness, spasms, and sharp pains.  Range of motion testing revealed flexion to 85 degrees, with pain at 80 degrees; extension to 25 degrees, with pain at 20 degrees; and right and left lateral rotation to 25 degrees, and right and left lateral extension to 25 degrees, all with pain at 20 degrees.  The Veteran was able to perform repetitive testing with no additional limitation in range of motion.  However, additional functional impairment/ limitations in less movement than normal, excess fatigability, and pain on movement were noted.  There was also no evidence of pain on palpation, muscle spasms, or muscle atrophy.  

Muscle strength and sensory examinations were normal, but deep tendon reflexes revealed values of +1 at the knees and ankles, bilaterally.  Additionally, straight leg raising was positive and the examiner indicated there was evidence of moderate radiculopathy manifested by paresthesias/ dysesthesias and intermittent pain in the right and left lower extremities at the sciatic nerve.  There was no evidence of other neurological impairments such as bowel or bladder impairment.  However, the VA examiner did find evidence of IVDS, but stated there were no incapacitating episodes within the past 12 months.  The Veteran reported the occasional use of a brace.  The examiner also stated there was no evidence of abnormal posture or gait.  Finally, there was evidence of contributing factors such as pain, weakness, fatigability, or incoordination during flare-ups or over time that could significantly limit the functional ability of the lumbar spine in that he is unable to do heavy lifting due to pain and fatigability.  However, the examiner stated range of motion testing was not available as the Veteran was not then experiencing a flare-up.  See October 2014 VA Back Conditions DBQ.  

The Veteran was most recently examined by VA in August 2019.  At that time, the VA examiner noted the diagnoses of lumbar strain, IVDS bilateral sciatic nerve, and degenerative arthritis.  The Veteran reported lower back pain accompanied with radicular symptoms that radiate down the bilateral lower extremities.  He, once again, reported flare-ups of the lumbar spine disability, which results in severe pain, occurring two to three times a day, lasting an hour each time.  He also reported an inability to walk, stand, or sit for prolonged periods of time due to back pain, radicular symptoms, and back stiffness.

The Veteran’s range of motion testing revealed flexion to 45 degrees; extension to 25 degrees; right and left lateral flexion to 20 degrees; right lateral rotation to 20 degrees; and, left lateral rotation to 25 degrees.  Pain was noted for flexion and extension, and at rest, but no range of motion findings were included.  There was also evidence of pain on weight-bearing, but there was no evidence of pain while in a non-weight bearing position.  The Veteran was able to perform repetitive testing with no additional limitation in range of motion.  However, he did report additional functional impairment/ limitations in pain, fatigue, and weakness during flare-ups or with repeated use over a period time.  While range of motion testing was not provided during flare-ups or after repeated use, the Veteran reported that he was unable to bend over as far and unable to reach around his body with repeated use over time or during flare-ups.  There was no evidence of pain on palpation, muscle atrophy, or guarding.  Further, while muscle spasms were noted, the examiner found the spasms did not result in abnormal gait or spinal curvature.  Additional contributing factors noted on examination were less movement than normal due to pain, disturbances in locomotion, and interference with sitting and standing.  

Muscle strength and sensory examinations were normal, but deep tendon reflexes revealed values of +1 at the knees and ankles, bilaterally.  Additionally, straight leg raising was positive and the examiner indicated there was evidence of radiculopathy manifested by moderate paresthesias/ dysesthesias, and mild numbness and intermittent pain in the right and left lower extremities at the sciatic nerve.  The overall severity level of the right and left lower extremity radiculopathy was found to be mild.  There was no evidence of ankylosis, or other neurological impairments such as bowel or bladder impairment.  However, the VA examiner did find evidence of IVDS, but stated there were no incapacitating episodes within the past 12 months.  The Veteran reported the occasional use of a brace.  The examiner also stated there was no evidence of abnormal posture or gait.  See August 2019 VA Back Conditions DBQ. 

The Board also notes that there are VA and private treatment records associated with the claims file.  However, these records do not contain any additional objective range of motion of findings materially different from the findings included in the VA examinations discussed above.  In fact, these records primarily show the Veteran’s continued treatment for his lumbar spine disability throughout the pendency of the appeal.  Specifically, an October 2017 physical assessment, received by VA in April 2018, notes the Veteran functional limitations due to his lumbar spine disability result in decreased time he can sit and stand during an hour work day due to pain.  It also indicates the Veteran’s physician’s belief the Veteran would require a 10 minute break every 2 hours during an 8 hour work day.  See October 2017 Physical Assessment.  However, there are no range of motion findings included in this assessment.   

The Veteran also submitted lay statements in support of his claim for a higher rating.  Specifically, he has reported pain, weakness, and less movement than normal as a result of his lumbar spine disability.  See March 2018 Board Hearing Transcript.  A September 2010 statement from his wife also notes that the Veteran has problems holding a job due, in part, to his lumbar spine disability.  

Analysis

Period Prior to August 20, 2019

Based on the evidence as noted above, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for his service-connected lumbar spine disability for the period prior to August 20, 2019 under Diagnostic Code 5242 on the basis of limitation of motion.  In particular, the Board acknowledges the Veteran’s complaints of back pain, which the record clearly documents.  However, the Veteran’s flexion was limited, at most, to 80 degrees, even when considering any pain on motion.  See October 2014 VA Back Conditions DBQ.  Additionally, while the Veteran reported flare-ups in both the September 2013 and October 2014 VA examinations, his range of motion was again, never limited to more than 80 degrees, even when considering his reports of pain and limitations due to pain.  See again September 2013 and October 2014 VA Back Conditions DBQs.  

The Board also notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance, including as due to pain.  38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017).  A higher disability evaluation may also be awarded where there is a reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.  38 C.F.R. § 4.45 (2020).  However, the veteran’s functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45.  See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016).

Here, with respect to functional loss, the examiner reported pain during both the September 2013 and October 2014 VA Back Condition DBQs, but only the October 2014 examination noted objective findings of pain.  Further, while the October 2014 VA examiner found additional limitations on repetitive motion resulting in functional loss, the fact of the matter remains that the evidence shows that the Veteran’s range of motion for flexion was well in excess of 60 degrees, which is required for the next higher 20 percent rating for this first period on appeal (i.e. prior to August 20, 2019).  Therefore, the Board finds that even when considering the functional limitations of less movement than normal as identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca v. Brown and Mitchell v Shinseki, the Veteran’s functional loss did not equate to the criteria required for a 20 percent rating when considering the cumulative picture of his low back disability.  8 Vet. App. 202 (1995), 25 Vet. App. 32 (2011).

Further, as noted by the Board, neither the September 2013 nor the October 2014 VA examinations complied with the holdings in Correia or Sharp.  In this respect, the Veteran’s reported functional limitations resulted in difficulty in lifting and decreased range of motion.  He also reported stiffness, spasms, and sharp pains.  For the period prior to August 20, 2019, even considering the additional restrictions due to his flare-ups, including the decrease in range of motion, and the reported pain on motion, when combining all the numerical values of his ranges of motion, he is still able to move well in excess of the minimum required for the next higher rating 20 percent rating.  See again September 2013 and October 2014 VA Back Conditions DBQs.  

As to whether the Veteran may be entitled to the next higher 20 percent rating under Diagnostic Code 5243 based on IVDS for the period prior to August 20, 2019, the Board finds no basis upon which to award a higher rating.  Diagnostic Code 5243 the provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  Here, the September 2013 VA examiner failed to find evidence of IVDS, and the October 2014 VA examiner, while noting IVDS, determined it did not result in any incapacitating episodes within the past 12 months.  

Thus, a rating in excess of 10 percent is not warranted under either Diagnostic Code 5242 or 5243.  

Period Since August 20, 2019

Based on the evidence as noted above, the Board concludes that the evidence supports the finding that the Veteran is entitled to the next higher rating of 40 percent for his service-connected lumbar spine disability for the period since August 20, 2019, based on the functional impairment resulting from his lumbar spine disability.  

In particular, the Board acknowledges the Veteran’s complaints of back pain, which the record clearly documents.  However, the Veteran’s flexion was limited, at most, to 25 degrees, even when considering pain on motion.  See again August 2019 VA Back Conditions DBQ.  Additionally, while the Veteran reported flare-ups during this VA examination, his range of motion was, never limited to more than 25 degrees, even when considering his reports of pain and limitations due to pain.  See id.  Thus, he does not meet the diagnostic criteria for the next higher rating under Diagnostic Code 5242.  

However, the Board also notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance, including as due to pain.  38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017).  A higher disability evaluation may also be awarded where there is a reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.  38 C.F.R. § 4.45 (2020).  However, the veteran’s functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45.  See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016).

Here, with respect to functional loss, the Veteran reported pain during the August 2019 VA Back Condition DBQs, and the VA examiner did note additional limitations on repetitive motion resulting in functional loss.  Specifically, the Veteran reported flare-ups during the August 2019 VA Back Conditions DBQ that resulted in severe pain, occurring 2 to 3 times a day, lasting an hour each time.  He also reported an inability to walk, stand, or sit for prolonged periods of time due to back pain, radicular symptoms, and back stiffness.  Moreover, the examiner noted pain on both active and passive motion, as well as during weight bearing.  The August 2019 VA examiner indicated that range of motion testing was not available during a flare-up, and also failed to provide numerical values for range of motion testing for when pain began, noting only the existence of pain on active motion.  Therefore, for the period since August 20, 2019, considering the additional restrictions in the severity, frequency, and duration of his flare-ups and functional limitations due to pain, including the decrease in range of motion, the Board finds that, on this basis, the Veteran is entitled to the next higher rating, which is 40 percent effective from August 20, 2019.  See again August 2019 VA Back Conditions DBQ; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158, 168 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017).  

However, the Board finds the Veteran is not entitled to a rating higher than 40 percent.  The next higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71, Diagnostic Code 5242.  Alternatively, the next higher rating for IVDS of 60 percent requires incapacitating episodes having a total duration of at least 6 weeks in the past 12 months.  Id.  Neither of these requirements are shown by the evidence of record.  See again August 2019 VA Back Conditions DBQ.  

Therefore, even considering any additional functional impact of the Veteran’s lumbar spine as noted above and his reports of pain, the fact remains the Veteran retains motion in his lumbar spine, albeit limited, which precludes a finding of ankylosis.  Therefore, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran’s functional loss did not equate to the criteria required for a 50 percent rating. 

	Other Considerations

In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code.  As previously mentioned, since the Veteran is already in receipt of separate ratings for his right and left lower extremity radiculopathy, the Board will address the propriety of the currently assigned ratings separately below. 

Here, there is no indication the Veteran suffers from bowel or bladder impairment, aside from the separate rated radiculopathy, that would warrant the assignation of additional ratings.  See September 2013, October 2014, and August 2019 VA Back Conditions DBQs.  

Finally, The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his lumbar spine disability submitted during the course of his appeal, to include the September 2010 statement from his wife and his March 2018 Board hearing testimony.  To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects.  The Board is likewise aware of the Veteran’s contentions that his lumbar spine disability impacts his employability and daily activities.  Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and limitation of motion.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely, determinations as to range of motion of the lumbar spine and functional impairment are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The medical evidence also largely contemplates the Veteran’s descriptions of his symptoms, including his reports of impairment with respect to physical activities, such as pain, stiffness, and limitations with movement, to include sitting and standing.  The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

In sum, the evidence deemed probative by the Board establishes that the Veteran’s lumbar spine disability more nearly approximates the criteria for the currently assigned 10 percent rating for the period prior to August 20, 2019 and a higher rating is not warranted.  Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102.  For these reasons, the claim is denied with respect to the period prior to August 20, 2019.

For the period since August 20, 2019, the Board finds a rating of 40 percent, but no higher, is warranted.  Accordingly, the appeal is granted.  

3. Radiculopathy of the Left and Right Lower Extremities

For the sake of brevity, the Board will refer to the findings contained in the September 2013, October 2014, and August 2019 VA Back Conditions DBQs, as discussed in detail above.

By way of history, the RO granted service connection for radiculopathy of the right and left lower extremities in a March 2015 rating decision and assigned initial ratings of 20 percent, effective from October 24, 2104, the date of a VA examination showing the presence of bilateral lower extremity radiculopathy.

However, as the Court held in Hamilton v. Brown, a valid notice of disagreement filed to a particular claim extends to all subsequent RO and Board adjudications on the same claim until a final RO or Board decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.  Hamilton v. Brown, 4 Vet. App. 528, 538 (1993) (en banc), aff’d, 39 F.3d 1574, 1582-85 (Fed. Cir. 1994).  AB v. Brown, 6 Vet. App. 35, 38 (1993) (noting that a "claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded").

Here, by filing his claim for an increased rating for the lumbar spine disability and perfecting his appeal to the Board, all manifestations of the lumbar spine disability must be considered, to include the neurological manifestations.  Even in light of the March 2015 rating decision granting the separate ratings for the right and left lower extremity radiculopathy, the Board finds that these claims remain in appellate status until a final disposition of the claim is made, and no additional notice of disagreement is required in order to continue the appellate process.  See ibid.  Thus, the Board has jurisdiction over the claims and must consider whether he is entitled to higher ratings.  

Neurological impairments affecting the sciatic nerve are evaluated under Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia), using the criteria under Diagnostic Code 8520.  For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve.  The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  See 38 C.F.R. § 4.124a , Diseases of the Peripheral Nerves.  When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree.  Id.  Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a , Diagnostic Code 8520.

Under Diagnostic Code 8620, for incomplete paralysis, a 20 percent disability rating is assigned for moderate incomplete paralysis.  If the condition is considered “moderately severe,” a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered “severe, with marked muscular atrophy.”

The Board observes that the words “mild,” “moderate,” and “severe,” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6.

In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for radiculopathy of the right or left lower extremities at any point during this appeal as there is no evidence to support a finding that the Veteran’s lower extremity radiculopathy has been manifested by moderately severe incomplete paralysis of the sciatic nerve.

Turning to the evidence of record, the VA examination conducted in September 2013, along with the available post-service treatment records, prior to October 24, 2014, failed to show a diagnosis of radiculopathy.  However, the subsequent October 2014 Back Conditions DBQ noted the straight leg raising test was positive in the right and left legs.  The examiner diagnosed the Veteran with moderate right and left lower extremity radiculopathy.  

Thereafter, the August 2019 VA examiner, during the course of the August 2019 VA Back Conditions DBQ, found only mild bilateral radiculopathy of the lower extremities.  

Additionally, the VA and private treatment records dated throughout the appeals period support the findings included in the October 2014 and August 2019 VA Back Conditions DBQs discussed above.

The Board finds that the radiculopathy of the right and left lower extremities are best rated as moderate and a higher rating is not warranted.  38 C.F.R. § 4.124a , Diagnostic Code 8620.  In fact, there is no evidence of record to suggest that the Veteran’s right or left lower extremity radiculopathy is moderately severe, as is required for the next higher 40 percent rating.

In addressing why the Veteran is not entitled to the next higher rating of 40 percent associated with moderately severe incomplete paralysis, the Board notes that, at no time during the appeal, did the Veteran present symptoms of either extremity approaching complete paralysis of the middle radicular group.  Specifically, during October 2014 and August 2019 VA Back Conditions DBQs, the objective evidence showed the Veteran had normal muscle strength and no muscle atrophy.  Additionally, there is no evidence of foot paralysis at any point during the appeals period.

Finally, the Veteran himself has not argued that his radiculopathy of the left and right lower extremity is more severe than the currently assigned 20 percent ratings.  Specifically, aside from reporting tingling and shooting pain, he has not set forth any lay evidence that would suggest the radiculopathy warrants higher ratings than 20 percent.  See October 2014 and August 2019 VA Back Conditions DBQs; see also March 2018 Board Hearing Transcript.  

As a preponderance of the evidence is against the award of a higher rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).

Service Connection

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include hypertension and arthritis, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection for an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a) can also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

4. Right and Left Knee Disorders

The Veteran contends that he is entitled to service connection for right and left knee disorders that are due to injuries sustained during his military service.  Specifically, he states that he injured his right and left knees as a result of his duties as a paratrooper in the military and his Old Guard duty, and has suffered from pain, aches, cramping, and stiffness since that time.  See September 2008 Statement in Support of Claim.  The Board notes the Veteran’s DD Form 214 does, in fact, show that he received a Parachutist Badge, Air Assault Badge, and Honduran Military Airborne Badge.  

The Board concludes that, while the Veteran has current diagnoses of degenerative arthritis of the right and left knees (see August 2019 VA Knee and Lower Leg Conditions DBQ), which satisfies the first element of service connection, a current disability, the preponderance of the evidence is against finding that the disorders began during active service, or are otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d).

The Veteran’s service treatment records fail to show any treatment, complaint, or diagnoses pertaining to either the right or left knees.  

Following service, the available VA treatment and private records fail to show any symptoms, treatment for, or complaints pertaining to the knees until several years later, when arthralgia of the knee was first noted in a VA treatment record dated in September 2006.  Moreover, the record reflects that the Veteran was not diagnosed with arthritis of the right and left knees until 2019.  See August 2019 VA Knee and Lower Leg Conditions DBQ.  As arthritis was not diagnosed within 1 year of separation, which would be 1997, the Veteran is not entitled to presumptive service connection for these disorders.

The record also includes several VA examinations during the appeals period.  First, the May 2009 VA examination report noted a diagnosis of bilateral knee strain.  However, regarding the etiology of these diagnosed disorders, the VA examiner determined that it was less likely as not that these disorders are due to the Veteran’s military service because there was no documentation of chronic problems in service and no documentation of chronic continuing care since service.  However, as the Board previously determined in the July 2018 Board remand, this opinion is inadequate for rating purposes.

Thereafter, the Veteran was scheduled for an August 2019 VA Knee and Lower Leg Conditions DBQ to determine the nature and etiology of his claimed left and right knee disorders.  After a review of the record, examination of the Veteran, and an in-person interview, the VA examiner concluded that arthritis of the left and right knees was less likely than not due to or the result of the Veteran’s military service.  In this respect, the VA examiner concluded that arthritis occurs progressively over time, and the Veteran’s arthritis is not due to any traumatic event or occurrence while in the service.  See August 2019 VA Medical Opinion (Right Knee) - DBQ; see also August 2019 VA Medical Opinion (Left Knee) - DBQ.  

Subsequently, an May 2020 Addendum Opinion was obtained to specifically address the Veteran’s lay statements regarding his left and right knee disorders, to include reports of pain since his service.  The VA examiner determined the left and right knee disorders are less likely than not caused by or the result of paratrooper and Old Guard duties during service.  In this respect, the examiner noted that the service treatment records are silent for right or left knee complaints.  Further, there was no evidence of record to support Veteran's lay statement that either the right or left knee conditions resulted from paratrooper jumps, or Old Guard duties since he first complained of knee pain in 2006, and reported the pain began 3 years prior, so in 2003.

Notwithstanding aforementioned reasons for not finding a nexus, independently the examiner determined there was no nexus to service due to the Veteran’s post-service civilian occupation, where the Veteran was working for Pepsi, which the examiner described as a strenuous job.  In assessing his job duties, the examiner found that the Veteran’s job more likely attributed to his diagnosed knee conditions.  To support this position the examiner noted that the Veteran was working 60 or more hours a week, and his main job duties were kneeling/ squatting, bending, stooping, climbing, lifting, and pulling, which puts strain on knee joints over a period of time.  Consequently, the VA examiner concluded that the Veteran’s right and left knee degenerative arthritis is not related to service or paratrooper and Old Guard duties during service.  See May 2020 Addendum Opinion.  

Based on the foregoing, the Board concludes that the preponderance of the evidence is against the service connection claims.  The August 2019 VA examiner conducted a comprehensive clinical examination and evidentiary review and indicated familiarity with the Veteran’s pertinent medical and lay history.  Thereafter, the May 2020 VA examiner, who authored the addendum opinion, noted there was no evidence in-service of the claimed disorders, and also attributed the claimed disorders to an alternative, post-service cause.  There are no other opinions of record. 

Post-service VA and private treatment records reflect the Veteran’s complaints of pain and treatment for his right and left knee disorders prior to and during the pendency of the appeal.  However, no opinions were promulgated in these treatment records regarding the etiology of the Veteran’s knee disorders.  

Notably, the Board has considered continuity of symptomatology.  Continuity of symptomatology is established if a claimant demonstrates (1) a condition "noted" during service; (2) evidence of postservice continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptoms.  Id.; see 38 C.F.R. § 3.309(a) (2020); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("Whether lay evidence is competent and sufficient in a particular case is a fact[ual] issue to be addressed by the Board.").  Continuing symptoms, not treatment, must be the focus of the evidentiary analysis.  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  A condition is "noted" in service where evidence is "indicative of but not dispositive of a chronic disease."  Walker v Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013).

However, here, as stated previously, after service, the available treatment records did not show any symptoms for or complaints for either the left or the right knees post-service until 2006, when the Veteran first noted pain in the knees beginning in 2003, which is 7 years since his separation from service.  Further, a VA treatment record from 2006 provided a diagnosis of arthralgia, which is 10 years since his separation from service.  Moreover, the Veteran’s service treatment record are devoid of any treatment, complaint, or diagnoses pertaining to either the right or left knees.  As such, there has been no evidence that this disability was noted in service, which precludes alternatively establishing service connection based on continuity of symptomatology.

Moreover, even if noted in service.  In fact, the only evidence offered in support of his claim, that his left shoulder disorder is due to his military service are the Veteran’s own statements, to include during his prior Board hearing testimony.  To this extent, the Board notes that he is competent to describe the symptoms associated with his disorder, such as sharp stabbing pains and stiffness, which are readily observable by laypersons.  See March 2018 Board Hearing Testimony Transcript; see also June 2006 and September 2008 Statements in Support of Claim.  However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion as to the etiology of his diagnosed disorder of arthritis of the left shoulder.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the diagnosis and etiology of orthopedic disorders, such as is the case here, requires medical testing to diagnose and medical expertise to determine the etiology.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”).

In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

5. Left shoulder disorder

The Veteran contends he is entitled to service connection for a left shoulder disorder that is due to injuries sustained during his military service.  Specifically, he states that he injured his left shoulder as a result of his duties as a paratrooper in the military and his Old Guard duty, and has suffered from pain, aches, cramping, and stiffness since.  See September 2008 Statement in Support of Claim.  The Board notes the Veteran’s DD Form 214 does, in fact, show that he received a Parachutist Badge, Air Assault Badge, and Honduran Military Airborne Badge.  

The Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the left shoulder (see August 2019 VA Shoulder and Arm Conditions DBQ), the preponderance of the evidence is against finding that the disorder began during active service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d).

The Veteran’s service treatment records fail to show any treatment, complaint, or diagnoses pertaining to the left shoulder disorder.  

Following service, the available VA treatment and private records fail to show any symptoms, treatment for, or complaints pertaining to the left shoulder until Veteran was diagnosed with shoulder strain during the May 2009 VA Examination.  See May 2009 VA Examination.  Moreover, the record reflects the Veteran was not diagnosed with arthritis of the left shoulder until 2019.  See August 2019 VA Shoulder and Arm Conditions DBQ.  As arthritis was not diagnosed within 1 year of separation, which would be 1997, the Veteran is not entitled to presumptive service connection for this disorder.  38 C.F.R. § 3.309.

The record also includes several VA examinations during the appeals period.  First, the May 2009 VA examination noted a diagnosis of left shoulder strain.  However, regarding the etiology of the diagnosed disorder, the VA examiner determined that it was less likely as not this disorder is due to the Veteran’s military service because there was no documentation of chronic problems in service and no documentation of chronic continuing care since service.  However, as the Board previously determined in the July 2018 Board remand, this opinion is inadequate for rating purposes.  

The Board notes the record contains VA shoulder examinations dated in September 2013 and October 2014.  However, these examinations were conducted of the right shoulder only, and to assess the current severity of his service-connected disability.   

Thereafter, the Veteran was scheduled for an August 2019 VA Shoulder and Arm Conditions DBQ to determine the nature and etiology of his claimed left shoulder disorder.  After a review of the record, examination of the Veteran, and an in-person interview, the VA examiner concluded that arthritis of the left shoulder was less likely than not due to or the result of the Veteran’s military service.  In this respect, the VA examiner concluded that arthritis occurs progressively over time, and the Veteran’s arthritis is not due to any traumatic event or occurrence while in the service.  See August 2019 VA Medical Opinion (Left Shoulder) - DBQ.  

Subsequently, a May 2020 Addendum Opinion was obtained to specifically address the Veteran’s lay statements regarding his left shoulder disorder, to include reports of pain since his service.  The VA examiner determined the left shoulder disorder is less likely than not caused by or the result of paratrooper and Old Guard duties during service.  In this respect, the examiner noted that the service treatment records are silent for left shoulder complaints.  Further, there is no evidence of record to support Veteran’s lay statement that the left shoulder condition resulted from paratrooper jumps, or Old Guard duties.  The examiner also notes the Veteran’s post-service civilian occupation was working for Pepsi, a strenuous job, which is more likely attributed to the diagnosed left shoulder condition.  It was noted the Veteran was working 60 or more hours a week, and his main job duties were kneeling/ squatting, bending, stooping, climbing, lifting, and pulling, which puts strain on knee joints over a period of time.  Consequently, the VA examiner concluded that the Veteran’s left shoulder degenerative arthritis is not related to service or paratrooper and Old Guard duties during service.  See May 2020 Addendum Opinion.  

Finally, as noted above, while the available post-service VA and private treatment records reflect the Veteran’s complaints of pain and treatment for his left shoulder disorder prior to and during the pendency of the appeal, there are no opinions promulgated in these treatment records regarding the etiology of the Veteran’s left shoulder disorder.  

Based on the foregoing, the Board concludes that the evidence is against the service connection claim.  The August 2019 VA examiner conducted a comprehensive clinical examination and evidentiary review and indicated familiarity with the Veteran’s pertinent medical and lay history.  Thereafter, the May 2020 VA examiner, who authored the addendum opinion, noted there was no evidence in-service of the claimed disorder, and also attributed the claimed disorder to an alternative, post-service cause.  Parenthetically, the Board notes the May 2020 VA examiner referred to the knees in promulgating this opinion for the left shoulder.  However, the Board finds that this is most likely a clerical error as all claimed disorders have the same diagnosis of arthritis, which the Veteran alleges occurred from the same in-service injuries.  There are no other opinions of record. 

Notably, the Board has considered continuity of symptomatology.  However, here, as stated previously, after service, the available treatment records did not show any symptoms for or complaints for the left shoulder post-service until the May 2009 VA examination, when he first noted pain in the left shoulder, which is 13 years since his separation from service.  Essentially, no evidence that this disability was noted in service. As such, there has been no evidence of a chronic disease in service or continuity of symptomatology.  

Moreover, even if noted in service.  In fact, the only evidence offered in support of his claim, that his left shoulder disorder is due to his military service are the Veteran’s own statements, to include during his prior Board hearing testimony.  To this extent, the Board notes that he is competent to describe the symptoms associated with his disorder, such as sharp stabbing pains and stiffness, which are readily observable by laypersons.  See March 2018 Board Hearing Testimony Transcript; see also June 2006 and September 2008 Statements in Support of Claim.  However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion as to the etiology of his diagnosed disorder of arthritis of the left shoulder.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the diagnosis and etiology of orthopedic disorders, such as is the case here, requires medical testing to diagnose and medical expertise to determine the etiology.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”).  Thus, the Veteran’s opinions regarding the etiology of his claimed left shoulder disorder is not competent medical evidence.  

In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

6. Right Ear Hearing Loss

The Veteran is seeking entitlement to service connection for right ear hearing loss that he believes is due to his military service.  The Board notes that the Veteran has previously established entitlement to service connection for left ear hearing loss and tinnitus and, in so doing, has conceded in-service noise exposure.   

Sensorineural hearing loss is a condition that is considered chronic, and therefore, will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10 percent disabling) within one year after discharge from service.  See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015) (specifying that sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system subject to § 3.309(a)).  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 

The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  Hensley, 5 Vet. App. 155, 159.

The Veteran’s service treatment records are completely silent for any complaints, treatment, or diagnoses of right ear hearing loss.  Further, post-service VA treatment records do not contain a diagnosis of right ear hearing loss and do not show auditory thresholds or speech recognition scores meeting the definition of a hearing loss disability for VA purposes.

The Veteran was scheduled for VA audiological examinations in October 2013 and August 2019.  The October 2013 VA audiological examination indicated that testing could not be done due to discrepancies between the pure tone average and speech recognition thresholds in the right ear.  Accordingly, the test results were deemed not valid for rating purposes.

Thereafter, during the August 2019 VA Hearing Loss and Tinnitus DBQ, the VA examiner determined the Veteran’s speech discrimination score for the right ear was 100 percent.  Further, the Veteran’s auditory thresholds were all under 26 decibels.  38 C.F.R. § 3.385.  Consequently, the VA examiner determined the Veteran has normal hearing in the right ear pursuant to 38 C.F.R. § 3.385.  

Additionally, VA treatment records, including the report of a February 2008 audiological evaluation, all note normal hearing in the right ear, for VA purposes.  See February 2008 VA Audiological Evaluation.  

Thus, the only evidence in support of the Veteran’s claim are his lay assertions that he currently suffers from right ear hearing loss.  While the Veteran may, in fact, experience some level of hearing loss, the fact remains that the objective medical evidence does not support a diagnosis of hearing loss for VA purposes.  The issue before the Board is medically complex and specialized medical education pertaining to the complicated organic system of the ear, as well as the ability to interpret complicated diagnostic medical testing in the form of audiograms, is necessary to render a diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence.

The Board must deny service connection because there is no evidence the Veteran currently has right ear hearing loss for VA purposes.  Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.”).

In sum, the Veteran’s claim fails to meet the first prong of service connection, which is the requirement of a current disability.  As the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for right ear hearing loss, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C. § 5107 (b).  As such, the claim must be denied.

REASONS FOR REMAND

1. TDIU

The Board finds that the August 2019 VA Shoulder and Arms Conditions and August 2019 VA Back Conditions DBQs note that the Veteran’s service connected right shoulder and lumbar spine disabilities impact his employment as a truck driver in that he is unable to hold a steering wheel for long periods of time.  See August 2019 VA Shoulder and Arm Conditions DBQ; see also August 2019 VA Back Conditions.  Further, the Veteran’s October 2017 private assessment indicates serious functional limitations in a work-like setting as a result of his shoulder and lumbar spine disabilities.  Therefore, the issue of entitlement to a TDIU has been reasonably raised by the record and additional development is necessary.  Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (holding that TDIU is not a separate issue that must be raised with specificity; rather, it is a component of an increased rating claim).  

Here, the AOJ has not sent the Veteran the required VCAA notice letter regarding a claim for TDIU.  Similarly, VA Forms 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) are not of record.  As such, the AOJ should send the Veteran a VCAA notice letter for his TDIU claim.  This notice letter must include (1) a VA Form 21-8940, and (2) a VA Form 21-4192.  The AOJ should request that the Veteran fill out these TDIU forms and submit them back to the AOJ.  

Thereafter, a VA examination should be scheduled to determine whether the Veteran’s service-connected disabilities preclude his ability to obtain or maintain substantially gainful employment. 

The matters are REMANDED for the following action:

1. Send the Veteran a VCAA notice letter for his TDIU claim.  This notice letter must include (1) a VA Form 21-8940, and (2) a VA Form 21-4192.  The AOJ should request that the Veteran fill out these TDIU forms and submit them back to the AOJ.  

2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine if it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran is precluded from substantially gainful employment on account of his service-connected disabilities alone and in combination.  In making this determination, the person should take into account the Veteran’s education and work history, but may NOT consider the Veteran’s age or any impairment caused by nonservice-connected disabilities.

3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL.  IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED.

4. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION.

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YVETTE R. WHITE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. Berry, 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.