Citation Nr: 21006062 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-10 795 DATE: February 3, 2021 ORDER Entitlement to a rating in excess of 10 percent for left shoulder arthritis is denied. Entitlement to a rating in excess of 10 percent prior to August 25, 2018, for lumbar muscle strain with radicular symptoms is denied. Entitlement to a rating of 20 percent but no higher beginning August 25, 2018 for lumbar muscle strain with radicular symptoms is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s left shoulder arthritis was manifested by no more than arthritis due to trauma of one minor joint with no evidence of limitation of motion at shoulder level, midway between side and shoulder level or to 25 degrees from side. 2. For the period prior to August 25, 2018, the Veteran’s lumbar muscle strain with radicular symptoms was manifested by no more than forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. 3. For the period from August 25, 2018, the Veteran’s lumbar muscle strain with radicular symptoms was manifested by no more than forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for entitlement to a rating in excess of ten percent for the service-connected left shoulder arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201-5010. 2. Prior to August 25, 2018, the criteria for entitlement to a rating in excess of 10 percent for lumbar muscle strain with radicular symptoms have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5243. 3. From August 25, 2018 and thereafter, the criteria for entitlement to a rating of 20 percent, but no higher, for lumbar muscle strain with radicular symptoms have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 through October 1982, from April 1984 to March 1988 and from November 1988 to February 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating General Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, subject to the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Regulation 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles- Shoulder The Veteran’s left shoulder arthritis is currently rated under diagnostic code 5201-5010. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Here, the additional diagnostic code is 5010. Under that diagnostic code, arthritis due to trauma, substantiated by x-ray findings should be rated as degenerative arthritis under diagnostic code 5003. Under diagnostic code 5003 a rating of 10 percent is warranted if there is evidence of degenerative arthritis established by x-ray and the limitation of motion of the specific joint or joints involved ins noncompensable under the appropriate diagnostic code. A 20 percent is warranted if there is x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. A shoulder injury can also be rated under diagnostic codes 5200, 5201, 5202 or 5203. Ratings are provided for the major and minor side. As reflected in the January 2015 VA examination, the Veteran is right hand dominant, so ratings for the minor side are referenced below. See January 2015 C&P Exam at 4. Under diagnostic code 5200, a rating of 20 percent is warranted if there is evidence of scapulohumeral articulation ankylosis of the minor joint with favorable abduction to 60 degrees and the Veteran can reach mouth and head. A rating of 30 percent is warranted if there is evidence of scapulohumeral articulation of the minor joint with intermediate ankylosis between favorable and unfavorable. A rating of 40 percent is warranted if there is evidence of scapulohumeral articulation, ankylosis of the minor joint with unfavorable abduction limited to 25 degrees from side. Under diagnostic code 5201, a rating of 20 percent is warranted if there is evidence of limitation of motion of the minor arm at shoulder level. Alternatively, a rating of 20 percent is warranted if there is evidence of limitation of motion of the minor arm midway between side and shoulder level. A rating of 30 percent is warranted if there is evidence of limitation of motion of the minor arm to 25 degrees from side. Under diagnostic code 5202, for minor joints, a rating of 20 percent is warranted if there is evidence of malunion of the humerus with moderate deformity. A rating of 20 percent is also warranted if there is evidence of malunion of the humerus with marked deformity. A rating of 20 percent is warranted if there is evidence of recurrent dislocation at scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level. A rating of 20 percent is warranted if there is evidence of recurrent dislocation at scapulohumeral joint with frequent episodes and guarding of all arm movements. A rating of 40 percent is warranted if there is evidence of fibrous union of the humerus. A rating of 50 percent is warranted if there is evidence of nonunion of the humerus. A rating of 70 percent is warranted if there is evidence of loss of head of the humerus. Under diagnostic code 5203, a rating of 10 percent is warranted if there is malunion of the clavicle or scapula. A rating of 10 percent is warranted if there is evidence of nonunion of the clavicle without loose movement. A rating of 20 percent is warranted if there is evidence of nonunion of the clavicle with loose movement. A rating of 20 percent is also warranted if there is evidence of dislocation of the clavicle or scapula. Rating Principles- Lumbar muscle strain The Veteran’s lumbar muscle strain with radicular symptoms is currently rated under diagnostic code 5242-5243 with a rating of 10 percent. Diagnostic code 5243 is evaluated under a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes (IVDS Formula). Schedular disability ratings are assigned for the spine from 10 percent to 100 percent according to the general rating formula as follows: A 10 percent rating contemplates forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating contemplates 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 contemplates forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating contemplates unfavorable ankylosis of the entire spine. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Formula for Rating Intervertebral Syndrome Based on Incapacitating Episodes, Note 1. Note 1 to the General Rating Formula provides for a separate evaluation for any associated, objective, neurologic abnormalities. 38 C.F.R. § 4.71a. Note 2 to the General Rating Formula for Diseases and Injuries of the Spine 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 is zero to 30 degrees, and left and right lateral rotation is 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. Analysis Entitlement to a rating in excess of ten percent for arthritis of the left shoulder. The Veteran’s arthritis of the left shoulder was initially service connected in an August 2010 rating decision with a rating of 10 percent, effective September 2009. In June 2014, the Veteran filed a claim seeking entitlement to a rating in excess of 10 percent for arthritis of the left shoulder. The Veteran perfected his appeal with his timely filed February 2016 Form 9. The Veteran contends that he is entitled to a rating in excess of ten percent for his left shoulder arthritis. However, the record, as discussed below, does not establish entitlement to an increased rating. July 2014 VA treatment records show that the Veteran endorsed symptoms of shoulder pain with swelling. The Veteran rated his pain as 6/10 when not doing anything, and greater when he moves his left arm. July 2014 imaging of the Veteran’s shoulder showed satisfactory anatomical alignment of the shoulder girdle with no displaced fracture, lytic or blastic lesions, but moderate acromioclavicular joint degeneration. In August 2014, the Veteran was noted to have limited abduction of the left arm to approximately 80 degrees, but otherwise demonstrated normal rotator cuff testing. By October 2014 the Veteran was reporting a two-month history of left shoulder pain, which he rated as a six on a scale of one to ten. The Veteran was afforded a VA examination in January 2015. Subjectively, the Veteran reported limited range of motion, an inability to lift weights with his left shoulder and loss of power and numbness in his left hand. The Veteran denied any current treatment for his left shoulder but reported that he was being evaluated for treatment. Objective findings noted forward flexion to 160 degrees, abduction to 160 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. The Veteran did not demonstrate pain with weight bearing or localized tenderness or pain on palpitation. He remained able to perform repetitive use testing with at least three repetitions and no additional functional loss. Pain, weakness, fatiguability or incoordination did not significantly limit functional ability with repeated use over time and the Veteran denied flare ups. Additionally, the Veteran retained full muscle strength with no evidence of muscle atrophy, ankylosis, shoulder instability and no suspected clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition. Further, despite the presence of arthritis, there was no objective evidence of crepitus. VA treatment records from March 2015 note ongoing complaints of left arm pain, with degenerative changes present. The Veteran reported that steroid injections were not successful. In June 2015 the Veteran reported chronic left shoulder pain with pain and mobility worsening for approximately two months. The Veteran reported that his limited range of motion interfered with his activities of daily living. VA treatment records from July 2015 note that the Veteran was referred to an orthopedist for shoulder degenerative joint disease related to prior trauma. July 2015 imaging showed degenerative changes and joint space narrowing of the AC joint space. However, the joints were noted as fairly well preserved with no peritendinous calcifications and no bone lesions. August 2015 VA treatment records note subjective complaints of pain and limited motion in the left shoulder, with more difficulty reaching backwards than forward. The Veteran reported that he could not lift anything straight up. October 2015 imaging of the Veteran’s chest noted degenerative changes of the shoulder. See February 2016 CAPRI at 5. Nonetheless, the Veteran was noted to have full shoulder strength, abduction and adduction. The Veteran continued to report shoulder pain in April 2016. The Veteran underwent glenoid labrum repair with distal clavicle resection in February 2017. As result the Veteran had a mild deformity of the left clavicle distal 1/3 due to prior fracture and resection. Notably, the Veteran was placed on a limited military profile due to moderate to severe left shoulder pain in June 2017. The Veteran was advised not to engage in strenuous physical activity; he was also advised to perform injury specific exercises. The Veteran was afforded a VA examination for his peripheral nerve conditions in August 2018. The exam noted normal sensation and normal nerve conduction study (EMG) of the left upper extremity. The Veteran was also afforded a VA examination for muscle injuries in August 2018. The Veteran reported that his shoulder pain is gradually getting worse in his AC joint, laterally over the rotator cuff and posteriorly over the medial border of the spine of the scapula. The Veteran characterized his pain as constant, worsening with overhead activity. The Veteran was also afforded a VA examination for shoulder and arm conditions in August 2018. The Veteran endorsed flare ups of shoulder and arms, worse with activity and was again noted to have functional loss of less motion and more pain. Objectively, the Veteran demonstrated shoulder flexion to 120 degrees, abduction to 120 degrees, external rotation to 70 degrees, and internal rotation to 40 degrees. The Veteran’s pain was noted to cause functional loss. The Veteran exhibited pain with flexion, abduction, external rotation and internal rotation but no pain with weight bearing. Similarly, the Veteran did not demonstrate localized tenderness or pain on palpation of the joint. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional functional loss or range of motion after three repetitions. Pain, weakness and fatigability did not limit functional ability with repeated use over a period of time or with flare-ups. The Veteran retained full shoulder strength with no muscle atrophy and ankylosis. However, the Veteran did demonstrate a positive Hawkins impingement test, a positive empty can test, a positive external rotation infraspinatus strength test and a positive lift off subscapularis test. The Veteran had no shoulder instability and no clavicle, scapula, AC joint or sternoclavicular joint condition. The Veteran also had no conditions or impairments of the humerus. However, as a result of his left shoulder disability the Veteran was noted to have difficulty with prolonged overhead or above the shoulder activities. The record contains no subsequent treatment records for the Veteran’s left shoulder arthritis. Ultimately, the evidence shows that the Veteran is not entitled to a rating in excess of 10 percent for his left shoulder arthritis. While the evidence shows some reduced range of motion and frequent reports of shoulder pain, there was no evidence of ankylosis to warrant a rating under diagnostic 5200, no evidence of arm limitation of motion to 25 degrees from side. While the Veteran was noted to have difficulty with prolonged overhead activity, he also demonstrated range of motion to 120 degrees. Accordingly, a rating under diagnostic code under 5201 is not warranted. Because there is no evidence of an impairment of the humerus to warrant a rating under diagnostic code 5202 and no evidence of a dislocation, nonunion or malunion of the clavicle to warrant a rating under diagnostic code 5203. The Board notes that the Veteran does have consistent symptoms of pain with some functional loss and reduced range of motion as well as a positive Hawkins test, positive empty can test, a positive external rotation infraspinatus strength test and a positive lift off subscapularis test. However, these symptoms have been contemplated in the Veteran’s current ten percent rating. Further, the severity of the Veteran’s symptoms does not more nearly approximate the criteria for a higher rating under diagnostic code 5200, 5201, 5202 or 5203. Finally, diagnostic code 5010 provides for a higher rating of 20 percent with there is involvement of two or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. The Board notes that the Veteran is noted to have arthritis of the left shoulder, a minor joint based on the Veteran being right hand dominant. However, the Veteran’s left shoulder is already rated at 20 percent. Therefore, additional contemplation of the Veteran’s left shoulder symptoms is not warranted. 38 C.F.R. § 4.14. Entitlement to a rating in excess of 10 percent for lumbar muscle strain with radicular symptoms prior to August 25, 2018. The Veteran alleges entitlement to a rating in excess of ten percent for lumbar muscle strain with radicular symptoms due to worsening. However, the evidence of record, as discussed below, shows significant gaps in treatment with no evidence of worsening prior to August 25, 2018 and thereafter. In July 2014, the Veteran reported pain in the upper posterior back behind his left shoulder. He reported difficulty sleeping at night due to pain. The Veteran characterized his pain as a feeling like a knife stabbing him in the back. September 2014 imaging of the thoracic spine showed mid anterior wedge deformity and mild multilevel degenerative disc disease of the mid lower thoracic spine. The Veteran was afforded a VA examination for his thoracolumbar spine (back) condition in January 2015. The Veteran complained of shooting pains in his lower back that radiated into his left arm and leg sometimes. He reported that physical activities such as jumping, standing and sitting for long periods of time brought on back pain. He reported that his back pain was not being treated. Objectively, the Veteran demonstrated normal range of motion and was able to perform repetitive use testing with at least three repetitions. Pain, weakness and fatigability or incoordination did not significantly limit functional ability with repeated use over time or with flare ups. The Veteran did not demonstrate guarding or muscle spasms and maintained full muscle strength and normal reflexes. Th Veteran’s sensation remained intact and he demonstrated a negative straight leg raise with no signs or symptoms related to radiculopathy. Similarly, the Veteran had no ankylosis or other neurologic abnormalities but was noted to have intervertebral disc syndrome (IVDS) with no incapacitating episodes in the prior twelve months. The Veteran did not require the use of an assistive device. Imaging noted degenerative arthritis. March 2015 VA treatment records note thoracolumbar levoscoliosis and degenerative disease at the right sacroiliac articulation. April 2015 VA treatment records note no back pain. In October 2015, the Veteran reported chronic back pain, lasting more than six months. The Veteran endorsed ongoing low back pain in April 2016. Treatment records show the Veteran was prescribed Baclofen in July 2016 based on back pain and muscle spasms. The Veteran was subsequently prescribed a topical medication in August 2016 to alleviate lower back pain. He also continued to report back pain in August 2016. In March 2018 the Veteran was noted to have chronic lower back pain. The Veteran reported that he has adjusted to his pain and ignores it. The Veteran continued to report lower back pain in June 2018. Ultimately treatment records show recurrent complaints of lumbar pain with no use of an assistive device, normal range of motion and a diagnosis of IVDS with no incapacitating episodes in the prior 12 months. Accordingly, the record does not establish entitlement to a rating in excess of ten percent as there is no evidence of reduced forward flexion or combined range of motion even when considering additional functional loss, no evidence of ankylosis and no evidence of incapacitating episodes related to the Veteran’s IVDS. Accordingly, entitlement to a rating in excess of 10 percent is not warranted for the period prior to August 2018. Entitlement to a rating of 20 percent but no higher beginning August 25, 2018 and thereafter. During an August 2018 peripheral nerve study, the Veteran was noted to have normal thoracic nerves. The Veteran was also afforded a VA examination for his back condition on August 25, 2018. The Veteran reported flare ups of his back one to two time per month for two to three days, with his pain usually being related to activity. He also reported functional loss of less motion and more pain. Objectively, the Veteran demonstrated flexion to 60 degrees, extension to 20 degrees, lateral flexion and rotation to 30 degrees bilaterally. See August 2018 C&P Exam at 3. Nonetheless, the Veteran had a negative straight leg raise and no radicular pain, ankylosis or intervertebral disc syndrome (IVDS). The Veteran was noted to ambulate with a cane occasionally. As a result of his thoracolumbar disability the Veteran was noted to have difficulty with prolonged standing, walking twisting or bending. Based on the evidence of record the Veteran is entitled to a rating of 20 percent effective August 25, 2018. Prior to August 2018, the Veteran endorsed some low back pain but demonstrated normal range of motion of the lumbar spine. Similarly, there was no evidence of either favorable or unfavorable ankylosis. During his August 25, 2018 exam, the Veteran demonstrated forward flexion of the thoracolumbar spine to 60 degrees as require for a rating of 20 percent. However, there was no evidence of forward flexion of 30 degrees or less. Similarly, the Veteran had no ankylosis of the thoracolumbar spine, therefore he is not entitled to a rating of 40 percent for favorable ankylosis of the entire thoracolumbar spine; 50 percent for unfavorable ankylosis of the thoracolumbar spine or 100 percent for unfavorable ankylosis of the entire spine. The Veteran also had no evidence of IVDS with incapacitating episode during the period at issue. The Board notes that the Veteran has frequently reported back pain with some functional loss and occasional use of a cane. However, even taking into consideration these symptoms, the Veteran’s symptoms do not more nearly approximate a rating in excess of 20 percent. Thus, based on the evidence of record, the Veteran is entitled to a rating of 20 percent, but no higher beginning August 25, 2018. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.