Citation Nr: 21006614 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-33 066 DATE: February 4, 2021 ORDER 1. Entitlement to increases in the staged (10 percent prior to November 15, 2010, and 30 percent that date) ratings assigned for muscle tension headaches is denied. 2. Entitlement to a rating in excess of 10 percent for residuals of a right wrist sprain is denied. 3. Entitlement to a rating in excess of 10 percent for a right ankle disability is denied. 4. Entitlement to increases in the staged (20 percent prior to November 15, 2010, and 40 percent from that date) ratings assigned for thoracic outlet syndrome of the right shoulder and neck is denied 5. Entitlement to a rating in excess of 10 percent for residuals of a right knee injury, status-post lysis of plica is denied. 6. Entitlement to a rating in excess of 20 percent for thoracic spine muscle spasm is denied. FINDINGS OF FACT 1. Based on the evidence of record, prior to November 15, 2010 it was not factually ascertainable that the Veteran’s tension headaches were manifested by characteristic prostrating attacks occurring at least once a month; from November 15, 2010, the headaches are not shown to have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran’s right wrist disability is not shown to at any time under consideration have been manifested by symptoms/impairment consistent with (equivalent to), or worse than, unfavorable ankylosis. 3. The Veteran’s right ankle disability is not shown to have been manifested by more than moderate limitation of motion. 4. It is not factually ascertainable based on the record that prior to November 15, 2010, the Veteran’s right shoulder and neck thoracic outlet syndrome was manifested by symptoms/impairment worse than mild incomplete paralysis of the upper radicular group; from November 15, 2010, it is not shows to have been manifested by symptoms or impairment worse than reflective of moderate incomplete paralysis of all radicular groups. 5. The Veteran’s residuals of a right knee injury, status post lysis of plica have, at worst, been manifested by painful motion; compensable limitations of flexion or extension, even with factors such as flare-ups, pain, and use considered are not shown; other (separately ratable) compensable pathology or impairment is not shown. 6. The Veteran’s thoracic spine muscle spasm is not shown to have been manifested by limitation of forward flexion to 30 degrees or less or ankylosis of the entire thoracolumbar spine; separately ratable neurological manifestations (other than right shoulder and neck thoracic outlet syndrome) are not shown. CONCLUSIONS OF LAW 1. Ratings for muscle tension headaches in excess of 10 percent prior to November 15, 2010 and in excess of 30 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.124a, diagnostic code (Code) 8100. 2. A rating in excess of 10 percent for residuals of a right wrist sprain is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5214, 5215. 3. A rating in excess of 10 percent for a right ankle disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Code 5271. 4. Ratings for right shoulder and neck thoracic outlet syndrome in excess of 20 percent prior to November 15, 2010 and in excess of 40 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Codes 8510, 8513. 5. A rating in excess of 10 percent for residuals of a right knee injury status-post lysis of plica is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5010, 5256-5263. 6. A rating in excess of 20 percent for thoracic spine muscle spasm is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5245-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1987 to September 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 Department of Veterans Affairs (VA) rating decision that denied ratings in excess of: 10 percent for muscle tension headaches, 10 percent for residuals of a right wrist sprain, 10 percent for residuals of excision ostrigonum of the right ankle, 10 percent for a right knee injury status-post lysis of plica, 20 percent for thoracic spine muscle spasm, and 20 percent for right shoulder and neck thoracic outlet syndrome. In June 2014, a videoconference hearing was held before the undersigned; a transcript is in the claims file. In January 2015 the matters were remanded for development. An October 2020 rating decision awarded the current staged increased ratings for the thoracic outlet and headache disabilities. [The October 2020 rating decision also granted the Veteran a total disability rating based on individual unemployability (TDIU), effective November 15, 2010. That issue is no longer before the Board.] Increased Rating 1. Entitlement to increases in the staged (10 percent prior to November 15, 2010, and 30 percent from that date) ratings assigned for muscle tension headaches is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). “Staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits varying symptoms that warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s muscle tension headache disability is currently rated at 10 percent prior to November 15, 2010, and 30 percent from that date by analogy to Code 8100 criteria (for rating migraine headaches), because the rating schedule does not include a separate specific Code for rating tension headaches. See 38 C.F.R. § 4.20. The Board finds use of that Code for the analogous rating appropriate because the symptoms and impairment shown are most consistent with those in the criteria for rating migraine headaches (and as discussed further below, symptoms and impairment not encompassed by Code 8100 criteria are not shown). Under Code 8100, a 50 percent rating is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month over the last several months; a 10 percent rating is warranted with characteristic prostrating attacks averaging one in 2 months over the last several months; and a 0 percent rating is warranted with less frequent attacks. 38 C.F.R. § 4.124A. The rating criteria do not define “prostrating” and the courts have not defined “prostrating” for purposes of Code 8100. According to Webster’s New World Dictionary of American English, Third College Edition (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. § 3.400 (o)(2). Consequently, the evaluation period for consideration here is from November 2009 (a year prior to the November 15, 2010 date of claim for increase). On April 2009 VA examination the Veteran reported daily headaches that become severe once a week, and last for several hours, and that he treated them with over the counter medications such as Tylenol. It noted that the headaches were not prostrating, and that ordinary activity was possible [when they occurred]. On March 2011 VA headache examination the Veteran reported that he developed headaches after a shoulder and back injury. He indicated that the headaches start in the base of the neck and occipital lobe and make their way to the temporal and frontal regions. He reported associated tightness in the shoulders and back with the headaches; that the headaches occur daily; and that some are severe. He indicated that they worsen with activity which strains the shoulder and back. The Veteran reported having to go to bed with headaches for four to five hours once or twice a week. He also reported occasional nausea. He indicated that he treats the symptoms with extra strength over the counter medication. July 2011 VA treatment records note reports of chronic headaches. They remained on the Veteran’s active problem list in 2012 and 2013. In 2014 he started a new medication for headaches. January 2015 records show treatment for headache and neck pain with diclofenac, hydrocodone, and methocarbamol. He continued to complain of daily headaches. He denied having headache on September 2015 and April 2016 physical examinations, but continued to complain of headache pain generally. On September 2016 VA examination the diagnosis was muscle tension headaches. The Veteran continued to report daily headaches treated with over the counter medication. He related that during the headaches he needs to close his eyes and feels a constant crushing pressure. He reported trying acupuncture without success. He stated that he avoids driving, and his children, when he has a headache. Apart from the pain, he reported sensitivity to light. The typical headache was noted to be less than a day in duration and occurring on both sides of the head. The examiner opined that the Veteran did not have characteristic prostrating attacks of headache pain, but indicated that when the headaches are active, the Veteran would be limited from tasks requiring concentration until resolution. VA treatment records show the Veteran continued to report headaches associated with neck pain in February 2019. He received an injection that reportedly helped briefly in April 2019. He continued to report daily headaches in July 2019. A February 2020 VA examination found that the Veteran continued to report daily headaches associated with neck pain. The examiner referred to a 2019 VA treatment note that did not include headaches on a problem list. However, the examiner noted that the Veteran had tension headaches on examination. The examiner noted that the Veteran treats his headaches with duloxetine, lidocaine, and naproxen. The examination found that the Veteran experiences headache pain on both sides of the head, but no other symptoms such as sensitivity to light or nausea. He reported that his headaches never end, are constant. The examiner opined that the Veteran did not have characteristic prostrating attacks, but stated that the Veteran would likely not be able to work due to headaches due to difficulty with concentration during the daily headaches. In a March 2020 addendum opinion, the February 2020 examiner noted that the Veteran did actually have characteristic prostrating attacks from his headaches with a frequency of once a month, which was increased from a previous frequency of once every two months. The examiner noted that the Veteran would be able to do low stress work, and noted that the Veteran reported having a headache on examination, but was able to converse without problems and to tolerate light. At the Board hearing, the Veteran testified that he then had a headache. He stated that movement makes it worse, and he has to lay down. He states that he has the headaches at least once daily. The indicated that he was only provided Tylenol for the headaches. Considering the competent medical evidence in the record, and the Veteran’s lay accounts, it is not shown that prior to November 15, 2010 it was factually ascertainable that his tension headaches were manifested by characteristic prostrating attacks occurring at least once a month. The April 2009 VA examiner noted that the Veteran’s attacks were not prostrating. The record does not otherwise contain competent medical evidence that he had prostrating attacks prior to November 15, 2010. Accordingly a higher than 10 percent rating prior to that date was not warranted. From November 15, 2020 the Veteran has consistently reported daily headaches, near constant in frequency. He regularly reported worsening pain with increased activity, and treatment with over the counter medication, although it appears that periodically he has used stronger medication as well. He consistently reported that he has to go to bed with headaches for four to five hours at least once a week. However, no competent medical provider has found that he had characteristic prostrating attacks more than once a month. Regarding whether the Veteran had characteristic prostrating attacks of headaches (in the frequency required for higher ratings), the Board finds that the opinions of the multiple VA examiners merit greater probative value than the Veteran’s self-serving assertions regarding the severity of the Veteran’s headache. In part, whether lay accounts (of symptoms and related functional impairment which are capable of lay observation) establish that there were “characteristic prostrating” attacks of migraine is a medical question. The examiners applied their medical expertise to the symptoms and impairment found and reported, and concluded that they do not establish that there characteristic prostrating attacks, with rationale that included that certain aura associated with characteristic prostrating migraine headaches were not noted (and that when the Veteran reported a headache was occurring, he continued to be capable of functioning). To warrant a 50 percent (the next higher) rating for migraine headaches, the evidence must show that they are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Here, prostrating attacks in a frequency of more than once a month are not shown at any time under consideration. While the Veteran reports (and the Board finds no reason to question) that he lies down for four to five hours at a time due to headaches, that of itself does not establish that at such times he is having characteristic completely prostrating and prolonged attacks. Furthermore, while VA examiners have observed that during his headaches the Veteran may have some difficulty with jobs requiring concentration, it was found that he would not be precluded from participating in lower stress occupations. And while he has been found to be unemployable due to service-connected disabilities, that his headaches, of themselves, are productive of severe economic inadaptability is not shown. Consequently, the criteria for a 50 percent rating for headaches have not been met from November 15, 2010; a rating in excess of 30 percent from that date is not warranted. 2. Entitlement to a rating in excess of 10 percent for residuals of a right wrist sprain is denied. The Veteran’s residuals of a right (major) wrist injury are assigned a 10 percent rating under Code 5215 (for limitation of wrist motion where there is no ankylosis), which provides that a (maximum) 10 percent rating is to be assigned for either wrist if palmar flexion is limited in line with the forearm or if dorsiflexion is less than 15 degrees. A higher rating (under Code 5214) requires ankylosis of the wrist. Normal range of motion (ROM) of the wrist is palmar flexion to 80 degrees, dorsiflexion extension to 70 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with 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). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, as is the case with regard to the Veteran’s wrist, further DeLuca analysis is foreclosed. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable). The period for appellate consideration here also is from November 2009 (up to one year prior to the Veteran’s claim for increase). The Veteran sustained a right wrist injury in service, repaired with a plate and screws. He contends that with motion of the wrist, he has popping, swelling, and pain. On April 2009 VA examination s the Veteran reporting intermittent right wrist pain at a level of 3 out of 10, with a couple of flare-ups a week when pain was 10 out of 10, lasting several hours and treated with over the counter pain medication. Physical examination showed pain, stiffness, decreased speed of joint motion, and tenderness. Dorsiflexion was to 60 degrees, palmar flexion to 40 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. There was pain following repetitive motion. There was no ankylosis. On March 2011 VA examination the Veteran reported constant pain in the right wrist and thumb. at a level of 4 out of 10, increasing to10 out of 10 with movement. He indicated that the pain worsened with lifting. He was still using over the counter medication to treat the pain, but reported that it was worsening. Dorsiflexion was to 60 degrees, palmar flexion to 45 degrees, radial deviation to 20 degrees, and ulnar deviation to 30 degrees. There was pain after motion, and the right hand had a slightly weaker grip than the left. There was no ankylosis. A September 2016 VA examination showed similar findings. The Veteran reported right wrist pain after physical therapy. He related he could not throw a baseball or turn a screwdriver. Palmar flexion was to 60 degrees, dorsiflexion to 55 degrees, ulnar deviation to 40 degrees, and radial deviation to 20 degrees. It was noted that the Veteran had full strength in the wrist. The examiner noted that the primary disability of the wrist is related to pain and loss of repetitive use, rather than loss of range of motion, and thus could not speculate as to whether there would be additional loss of motion after repetitive use over time. The Veteran denied having flare-ups. There was no ankylosis. On December 2018 VA examination, palmar flexion of the right wrist was to 60 degrees, dorsiflexion to 55 degrees, ulnar deviation to 35 degrees, and radial deviation to 20 degrees. The Veteran was noted to have full strength in the wrist. He denied flare-ups, and the examiner indicated there was no additional loss of range of motion after repetitive use over time. There was no ankylosis. Consistent with the findings of the multiple VA examiners who examined the Veteran, VA treatment records do not at any time show that the Veteran’s right wrist was ankylosed. While he is competent to note wrist pain or that he has decreased range of wrist motion, he has not alleged ankylosis, and the findings of the multiple VA examiners that he does not have ankylosis of the right wrist have not been placed in dispute. He has not identified any symptoms or functional impairment not encompassed by the criteria for the10 percent rating currently assigned, As ankylosis of the wrist (or limitation of motion approximating ankylosis; see 38 C.F.R. § 4.7, is not shown or alleged), the preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. 3. Entitlement to a rating in excess of 10 percent for a right ankle disability is denied. The Veteran’s right ankle disability has been assigned a 10 percent rating under Code 5271 (for limitation of ankle motion). Under Code 5271, a 10 percent rating is assigned for moderate limitation of ankle motion, and a 20 percent rating is assigned for marked limitation. The words "moderate" and "marked" are not defined in VA's Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Under Code 5270, a 20 percent rating is assigned for ankylosis of an ankle in plantar flexion, less than 30 degrees. Higher ratings require ankylosis in less favorable positions. Normal range of ankle motion is dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See Plate II. [Under Code 5272, a 10 percent rating is awarded for ankylosis of the subastragalar or tarsal joint in a good weight-bearing position, and a 20 percent rating is awarded for ankylosis of the subastragalar or tarsal joint in poor weight-bearing position. Under Code 5273, a 10 percent rating is awarded for malunion of the os calcis or astragalus with moderate deformity, and a 20 percent rating is awarded for malunion of the os calcis or astragalus with marked deformity. Under Code 5274, a 20 percent disability rating is awarded for astragalectomy. Codes 5270, 5272, 5273, and 5274 do not apply in this matter, as there is no evidence of ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy.] 38 C.F.R. § 4.71a. The period for appellate consideration in this matter is from November 2009 (one year prior to receipt of the instant claim for increase). On April 2009 VA examination the Veteran’s right ankle disability was characterized as residuals of excision ostrigonum, following surgery for injury sustained in a car accident (described as a right ankle fracture). The Veteran reported constant level 5 out of 10 pain, 10 out of 10 with flare-ups which occurred about twice a month, lasted for two to three days, and were treated with over the counter medication. On physical examination, he reported stiffness and pain; decreased speed of motion was noted. The Veteran reported ankle popping and tenderness. Flare-ups were described as severe, occurring every few weeks, and lasting a day or two. He was noted to be capable of standing and walking for 30 minutes and walking more than a quarter-mile, but less than a full mile. He had an antalgic gait, and reported pain on examination to assess active motion. Dorsiflexion was to 20 degrees and plantar flexion to 30 degrees. There was additional pain following repetition, but no additional range of motion loss. There was no ankylosis. The examiner found that ankle disability had a moderate impact on ability to do chores, shop, exercise, play sports, travel, and drive. On March 2011 VA examination the Veteran reported continuing constant right ankle, level 5 out of 10, pain, with weekly flares of level 10 pain lasting a few days. He attributed flares to increased activity. He also reported popping and tenderness. He continued treatment with over the counter medication. On examination, dorsiflexion was to 10 degrees and plantar flexion to 40 degrees. There was pain, but no additional loss of range of motion, on motion and on repetitive use; there was no ankylosis. On September 2916 VA examination there were similar findings. The Veteran reported sensitivity of the ankle to weather changes, noting that it pops, cracks, and swells. He related that he cannot jump, and frequently twists the ankle while running, and has constant pain. He denied flare-ups. Dorsiflexion was to 15 degrees and plantar flexion to 45 degrees. There was no additional loss of motion after repetitive use. The examiner stated that he could not opine if there was additional range of motion loss after repetitive use over time without speculation, because the primary presentation of the disability was pain and loss of repetitive use, rather than loss of motion. There was full strength in the ankle, and no ankylosis. The examiner indicated that instability was suspected. The examiner noted that the condition would limit standing to no longer than 60 minutes, and that the Veteran did not have an astragalectomy or malunion of the os calcis or astragalus. On April 2019 VA examination, the Veteran reported swelling, pain, and popping in the ankle. He indicated that he took some prescription medications for ankle pain. He Veteran denied flare-ups of the ankle. Range of motion was normal on examination, although there was pain on dorsiflexion and flexion, as well as on weight-bearing. There was no pain on passive motion and non-weight-bearing range of motion testing. There was no additional loss of motion after repetitive use testing; it was noted that there would be additional range of motion loss after repetitive use over time. The examiner estimated the additional loss would be dorsiflexion limited to 15 degrees and plantar flexion to 30 degrees. Muscle strength was normal. The ankle was not ankylosed; the Veteran did not have malunion of the os calcis or astragalus; and he had not undergone astragalectomy. He did not use assistive devices to walk. In hearing testimony, the Veteran stated that his right ankle pops constantly, swells up, and sometimes rolls out from underneath him. He also indicated that the ankle sometimes locks up, and he is unable to bend it. When asked if the ankle had caused him to fall, he stated that “you know you’re playing basketball and you step wrong and it just rolls out from underneath of me.” On 2016 ankle examination the Veteran reported ankle pain after prolonged [emphasis added] running (suggesting he engages in such activity). VA outpatient treatment records show scattered complaints of pain and intermittent swelling of the ankle. The Board finds that the Veteran’s ankle condition has at worst been manifest by no more than moderate limitation of motion, which is consistent with 10 percent rating currently assigned. On range of motion testing, the greatest limitations found, to include with consideration of the impact of repetitive use over time, flare-ups, and other factors outlined in DeLuca, was 10 degrees of dorsiflexion (20 is normal), and 20 degrees of plantar flexion (45 is normal). Those were the worst findings for each measurement found in the record; range of right ankle motion studies otherwise found less severe limitations. On the last VA examination (in April 2019), right ankle motion was normal prior to repetitive use testing (and limitations did not rise to a marked level after repetitive use). In his hearing testimony, the Veteran expressed that his right ankle rolls when he plays basketball (an activity that presumably would be precluded by disability manifested by marked limitation of ankle motion). A distinct period when right ankle motion was limited to a marked degree is not shown at any time under consideration. The preponderance of the evidence is against this claim Accordingly, the appeal in the matter must be denied. 4. Entitlement to increases in the staged (20 percent prior to November 15, 2010, and 40 percent from that date) ratings assigned for right shoulder and neck thoracic outlet syndrome is denied. The Veteran’s right shoulder is shown in the record to be his Major (dominant) extremity. His right shoulder and neck thoracic outlet syndrome is rated 20 percent prior to November 15, 2010, and 40 percent from that date under Code 8510 (for paralysis of the upper radicular group). Under Code 8510, a 20 percent is assigned for mild incomplete paralysis (of such group in either extremity); a 40 percent rating is assigned for moderate incomplete paralysis of the major extremity; a 50 percent is assigned for severe incomplete paralysis of the major extremity; and 70 percent is assigned for complete paralysis of the major extremity. 38 C.F.R. § 4.124A. Under Code 8513, moderate incomplete paralysis of all radicular groups of the major extremity is assigned a 40 percent rating. A 70 percent rating is assigned for severe incomplete paralysis, and a 90 percent rating is assigned for complete paralysis. Limitation of shoulder motion may also be rated under Code 5201, which provides for a 20 percent rating for limitation of motion at shoulder level for either shoulder; a 30 percent rating for limitation to midway between the side and shoulder level of the major extremity; and a 40 percent rating for limitation to 25 degrees from the side for the major extremity. 38 C.F.R. § 4.71a. The period for consideration in this matter is from November 2009 (one year prior to the instant claim for increase). On April 2009 VA examination, it was noted that the Veteran injured his shoulder playing softball in service. In 2006 he underwent rotator cuff repair surgery. He reported constant 5 out of 10 level right shoulder and neck pain, with about twice weekly flares when pain is 10 out of 10, and lasts for several hours. He treated the condition with over the counter medication. It was noted that the disability caused multiple problems, such as decreased mobility, decreased manual dexterity, problems lifting and carrying, difficulty reaching, decreased strength, and pain. On March 2011 VA examination similar levels of pain and treatment with over the counter medication were noted; reflex examination was normal; sensory examination found decreased vibration in the fingers and decreased pain and pinprick sensation up the arm. There was also decreased sensation to light touch. At his June 2014 Board hearing, the Veteran testified that with regard to his neck and shoulder, his neck has constant tightness, and that he was told that he had bulging discs. The Veteran reported a popping sound when turning his neck. He did not report any symptoms related to his shoulder, arm, or hand. On September 2016 VA examination the Veteran reported that there was popping and grinding in the right shoulder, especially with overhead work. He related that the right arm goes numb when he reaches above shoulder level, and also reported pain and loss of strength. He indicated that the pain extends into his neck when he reaches above the shoulder. He had mild reductions in cervical spine range of motion, with extension to 40 degrees (45 is normal) and lateral rotation reduced by 20 degrees (80 is normal). Shoulder examination found flexion reduced to 115 degrees, abduction to 110 degrees, and rotation reduced by about 20 degrees. February 2018 VA outpatient treatment records show the Veteran reported that he was no longer able to hunt, was rarely able to fish, and could not play sports or run. A December 2018 VA examination found shoulder flexion and abduction to 115 degrees, with full strength. On examination there was no ankylosis or impairment of the humerus. In an addendum opinion, the examiner clarified that the limited motion of the cervical spine is not related to the Veteran’s thoracic outlet syndrome, but that right shoulder and arm pain and numbness are due to the thoracic outlet syndrome. An April 2019 pain consult notes the Veteran reported numbness and tingling in both arms and hands. He reported that his pain medication was not working, and that previously he was given prescriptions for narcotic medication. It is noted that that narcotic medication was stopped with allegations of drug abuse. On October 2019 peripheral nerves examination, the examiner found that the Veteran had mild constant right upper extremity pain, and intermittent moderate pain, moderate paresthesias, and moderate numbness in the extremity. Right upper extremity muscle strength was slightly reduced. Testing showed decreased sensation at C5 and C6 (a June 2018 cervical MRI showed severe spinal canal stenosis on the right impacting C5 and C6). The examiner found there was mild incomplete paralysis of the radial nerve, median nerve, ulnar nerve, musculotaneous nerve, circumflex nerve, long thoracic nerve, the upper radicular group, the middle radicular group, and the lower radicular group. Regarding whether a higher rating was warranted prior to November 15, 2010, the Board finds that it is not factually ascertainable from the record that a rating in excess of 20 percent was then warranted. There is no contemporaneous competent evidence in the record that addresses the severity of the thoracic outlet nerve impairment prior to November 15, 2010. Further, the evidence of record is insufficient to assess right shoulder range of motion during that period. There is no competent medical evidence showing more symptoms or impairment reflecting more than mild incomplete paralysis of the upper radicular group. Thus, a rating in excess of 20 percent was not warranted prior to November 15, 2010. The evidence of record also does not show that a rating in excess of 40 percent has been warranted since November 15, 2010. The record does not show symptoms related to the Veteran’s thoracic outlet syndrome that reflect more than moderate incomplete paralysis. The Board acknowledges that the October 2019 VA examiner’s finding of neurological deficits in multiple nerve groups of the upper extremity. The VA examiner did not identify the nerve impairment attributable to the thoracic outlet syndrome. However, assuming, strictly for purposes of this decision, that all right upper extremity nerve impairment is due to thoracic outlet syndrome, a rating in excess of 40 percent would not be warranted. Under Code 8513 moderate incomplete paralysis of all radicular groups warrants a 40 percent rating. Higher ratings require greater levels of severity of incomplete paralysis. The October 2019 VA examiner found incomplete paralysis was mild in all nerve groups, and the record does not include competent medical evidence showing otherwise. Thus, rating under another Code would not afford a greater benefit. The Board also notes the Veteran’s neck complaints/and reports of related limitations. However, the December 2018 VA examiner’s opinion indicated that limited motion of the cervical spine was not due to his thoracic outlet syndrome (but to separate (orthopedic) neck pathology. Thus, the neck impairment is not for consideration in rating the thoracic outlet syndrome. Regarding alternatively rating the disability based on limitation of shoulder motion, the shoulder has not been found to be ankylosed; as 40 percent is the maximum schedular rating for limited motion of the shoulder absent a showing of ankylosis or impairment of the humerus, rating the shoulder under a diagnostic code for orthopedic impairment of the shoulder would not afford the Veteran a greater benefit. The other medical evidence in the record show a level of disability consistent with the findings of the VA examiners who assessed the severity of the thoracic outlet syndrome. The Veteran regularly complained of shoulder pain, which was treated with over-the-counter medication, and past courses of physical therapy with little impact. To warrant a higher rating, the evidence of record would have to show that the disability picture reflects impairment consistent with severe (or greater) incomplete paralysis or reflects complete paralysis of the nerve group(s) affected. There is no such evidence. The Veteran’s subjective reports regarding the nature and severity of his thoracic outlet symptoms and related impairment have been inconsistent with other notations in the record, and may not all be accepted as accurate on their face. For example, at the 2014 Board hearing, he testified that activities such as playing basketball cause his ankle to roll out from underneath him. Both prior to, and after the hearing, he reported severe limitations, including due to pain, associated with his thoracic outlet syndrome disability. The Board observes that participation in recreational basketball would appear to be an activity that is precluded by a more than mild thoracic outlet syndrome. Further, while he reported being limited in his ability to play sports in February 2018, such limitations were reported on evaluation of generalized chronic pain, and were not attributed to a specific condition (such as his thoracic outlet syndrome). Regarding the severity of the disability, the Board affords the findings of the VA examiners (and treating providers) great probative weight than to the Veteran’s unsupported (and self-serving) lay allegations. The degree of nerve impairment is a medical question that is addressed by clinical findings determined with the aid of various tests and studies. The examiners applied their medical expertise to the findings on examinations and came to their conclusions upon assessing the Veteran’s demonstrated level of functioning in conjunction with review of his entire pertinent medical record. Notably, he does not point to any clinical findings supporting there is a greater degree of incomplete paralysis of the affected nerve group(s). Considering the foregoing, the Board concludes that the preponderance of the evidence is against this claim, Therefore, the appeal in the matter must be denied. 5. Entitlement to a rating in excess of 10 percent for residuals of a right knee injury, status-post lysis of plica, is denied. The Veteran’s knee disability is rated at 10 percent disabling under 38 C.F.R. § 4.59 which provides for a maximum 10 percent rating for painful motion, without compensable limitation of motion. Arthritis is not required for such a 10 percent rating. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Board notes that although claims file documents indicate the Code used to rate the disability is Code 5257 (for instability of the knee), the rating decision that initially assigned a compensable rating for the right knee assigned the10 percent rating based on painful motion, not instability. The rating decision on appeal also found that the Veteran’s 10 percent rating based on painful motion should be continued, and that there was no instability. Therefore, the Board finds the listing of the rating as under Code 5257 was erroneous, and the knee should be rated for the appropriate diagnostic code representing painful motion. [Code 5003 also provider for a compensable rating for limitation of motion (with arthritis of a joint), but the Veteran has not been found to have a diagnosis of arthritis of the knee.] Disabilities of the knee and leg are also rated under Codes 5256 to 5263. The record does not show ankylosis (Code 5256), post-removal symptomatic semi-lunar cartilage (Code 5259), nonunion of tibia or fibula (Code 5262) or genu recurvatum (Code 5263). Consequently, those Codes do not have applicability in this matter, and compensable ratings under those Codes are not warranted. Under Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of a knee; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71A. Under Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under Code 5260, a 10 percent rating is assigned for flexion of a knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under Code 5261, limitation of knee extension is rated 0 percent when limited at 5 degrees, compensable ratings requires limitations at 10 degrees or more. 38 C.F.R. § 4.71A. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. The period for appellate consideration is from November 2009 (one year prior to receipt of the claim for increase). On April 2009 VA examination, the Veteran’s right knee disability was diagnosed as residuals of a knee injury status post lysis of plica. He reported pain when it locked and popped about once or twice a month, lasting a few hours. He reported taking over-the-counter medication for pain, which he assessed as 10 out of 10 in intensity during episodes of locking and popping. On examination there was tenderness, but no instability, crepitus, and no meniscus abnormality. Right knee flexion was limited to 100 degrees, and extension was normal. There was pain following repetitive movement, but no additional loss of motion. The examiner noted that the knee condition had a moderate impact on chores, shopping, exercise, sports, recreation, and traveling. Strength on extension was full. A March 2011 VA examination found no change in frequency and severity of the Veteran’s reported knee pain. He reported popping with squatting and that walking resulted in tenderness over the whole leg. He indicated that he was able to continue activity during a flare-up (he described knee pain during flare-ups as 10 out of 10), and that he continued use of over-the-counter medication for relief. It was noted that he was using a left knee brace, but did not have one on the right. Painful movement of the right knee, with guarding, and crepitus was noted. On examination, flexion was to 120 degrees and extension was normal. There was pain on active motion, and additional pain after repetition, but no additional range of motion loss. Strength of knee flexion and extension was slightly reduced to 4 out of 5. The examiner noted that the knee was not ankylosed. The Veteran reported that he had injured his left ACL doing a stress test, and that he compensated by placing greater stress on his right knee. January 2013 VA outpatient treatment records show the Veteran reported decreased right knee range of motion, but range of motion testing was not reported. August 2013 records note report of swelling of the knee for the last few weeks. At the June 2014 Board hearing, the Veteran testified that his knee symptoms were related to how far he walked. He stated that his knee collapses and locks. He indicated that he receives treatment for the knee every several months. VA outpatient treatment records throughout the appeal period consistently show complaints of knee pain and intermittent swelling. The records note several complaints that the Veteran’s pain medication was not working well (and inquiring about) stronger medication. A September 2016 VA examination report notes the Veteran reported occasional swelling and popping in the knee, and that he received injections for pain, which he described as constant, every six months. Treatment with NSAIDs and muscle relaxers was also noted. The Veteran indicated that he had right knee swelling every few months, but denied having flare-ups. He reported pain on prolonged standing, squatting, or use of stairs. Flexion was to 120 degrees and extension was noted to be normal. There was pain with flexion and on weight-bearing. The Veteran was able to perform repetitive use testing without additional functional loss. The examiner indicated that he could not say without speculation whether the Veteran would experience additional loss of motion after repetitive use over time, as such could not be ascertained because the primary factor of disability was pain and loss of repetitive use, rather than loss of range of motion. There was full strength on flexion and extension, and no ankylosis. There was no instability on testing. The Veteran did not have a history of recurrent subluxation. He was found not to have a meniscal condition. Knee pain was noted to be a residual of the surgery (lysis of plica). Imaging found no abnormality. The examiner noted that the disability would limit the Veteran’s standing to no more than an hour, and kneeling to no more than 15 minutes. On April 2019 VA examination it was noted that the Veteran continued to report popping and swelling of the knee. He reported increased pain with flare-ups. The Veteran reported pain on flexion, which was to 135 degrees; extension was noted to be normal. There was no pain with weight-bearing. There was evidence of crepitus. There was no additional functional loss after repetitive use testing. The examiner determined that following repetitive use over time, the Veteran would have range of motion decreased by 5 degrees of flexion (to 130 degrees). The examiner opined that functional ability would not be additionally limited during flare-ups. On examination there was full strength, no atrophy, and no ankylosis. There was no history of recurrent subluxation or lateral instability. The examiner noted that there was a history of recurrent effusion, noting that he reported the knee swells twice a week. There was no instability on testing. The examiner noted that the Veteran had never had a meniscal condition. There was no pain on passive range of motion or on non-weight-bearing. The Board finds that during the period on appeal the Veteran’s right knee disability has, at worst, been manifested by painful motion, consistent with the 10 percent rating, that has been assigned. Higher ratings require that there be actual pathology or functional limitations warranting a higher rating under the criteria for rating such symptoms/impairment. On range of motion testing, right knee range of motion limitations were never found to be of sufficient severity to warrant a compensable rating of either limitation of flexion or limitation of extension, even considering the impact of repetitive use over time or flare-ups, and other factors outlined in DeLuca. The Veteran did never exhibit instability or recurrent subluxation on examination. The Board acknowledges that the Veteran has complaints of locking and swelling of the knee. However, he has not been found to have a meniscal condition (dislocated semilunar cartilage or symptomatic post-removal of semilunar cartilage) to allow for consideration of a rating under Codes 5258 or 5259. The Veteran’s prior surgery is lysis of plica, not menisci. The Board acknowledges that the Veteran is considered competent to report knee pain. However, the pain would warrant a higher rating only if it resulted in greater functional limitations, which have not been found. The accuracy of his reports of limitations due to the knee disability is impugned by inferences drawn from his reports, including at the Board hearing (that he continued to play basketball during the evaluation period) and the findings by his examiners regarding his functional limits. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal seeking a rating in excess of 10 percent must be denied. 6. Entitlement to a rating in excess of 20 percent for muscle spasm of the thoracic spine is denied. The Veteran’s spasms of the thoracic spine are rated at 20 percent the General Rating Formula for Diseases and Injuries of the Spine (General Formula). [While a spine disability which includes disc pathology may be rated either under the General Formula or based on Incapacitating Episodes of Disc Disease (IVDS), whichever is more favorable, the Veteran’s service connected low back disability is not shown include IVDS, and the Criteria for Rating based on Incapacitating Episodes of IVDS are not for consideration in this matter.] The period for appellate consideration in this matter is also from November 2009 (one year prior to receipt of the claim for increase). Under the General Formula, the following ratings apply to disabilities of the thoracolumbar spine: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or combined ROM of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. And a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. See Note (1) following the General Formula. 38 C.F.R. § 4.71A. At an April 2009 VA examination, the Veteran reported daily intermittent muscle spasms in the middle back. He assessed his pain level at 5 out of 10, and reported treatment with over-the-counter pain medication. He reported taking 7 weeks off from work due to a flare-up in 2008 (prior to the period for consideration). There spine was not ankylosed. On examination there was no spasm, but there was painful motion and guarding with tenderness. There was no weakness. The examiner noted that muscle spasm, guarding, and tenderness were not severe enough to cause an abnormal gait or spinal contour. The Veteran favored his right leg. Forward flexion was to 60 degrees, with pain on active motion. Combined range of motion was 170 degrees. There was pain after repetitive motion, but no additional loss of motion. The examiner found that the disability had a moderate impact on chores, shopping, exercise, sports, recreation, feeding, and driving. There were no incapacitating episodes due to IVDS. On March 2011 VA examination the Veteran’s report of back pain, with daily tenderness and spasms was noted. He reported twice weekly flare-ups when he has to go to bed due to severe pain, and continuing treatment with over-the-counter medication. He did not have IVDS. The Veteran reported the spasms were in the middle back. On examination, flexion was to 75 degrees, and combined range of motion was to 155 degrees. There was pain on motion throughout. The examiner noted that on repeat testing range of motion findings were essentially equivalent, without functional loss. The spine was not ankylosed. The examiner found that the disability had the same moderate impact on daily activities as was noted on April 2009 examination. There was spasm in the right paraspinal lumbar area on examination, guarding and tenderness. At the June 2014 Board hearing, the Veteran testified that he was having spasms at the time of the hearing, and could not bend. He stated that he had problems getting up and down, and could not squat. He stated that if he put weight on his right side, he would collapse. He described pain shooting from his knee to his back. He stated that he could not bend over to pick up a newspaper. He did not respond when asked whether he could sit in a car. He indicated that he wanted to stand at the hearing because it hurt so bad. VA outpatient treatment records show findings of lower degenerative joint disease (which is not service connected). There are consistent complaints of low back pain. Medications for muscle spasm were prescribed. Treatment records from January 2015, September 2015, and May 2016 note normal range of motion of the spine. Imaging from October 2015 showed minimal degenerative changes. On September 2016 VA back examination the Veteran reported constant dull lower back pain in the lower back. He reported receiving some physical therapy and injections, and that he was taking hydrocodone for symptoms, without relief. He indicated that various past treatment did not work. He denied having flare-ups, but reported spasms when lifting heavy objects. Forward flexion was to 70 degrees, and combined range of motion was 215 degrees. Pain was noted on motion, but not with weight-bearing. There was tenderness on palpation, and there were palpable muscle spasms. The Veteran was able to perform repetitive use testing without additional limitations or functional loss. The examiner indicated that he would not be able to comment on whether there would be additional functional loss after repetitive use over time without speculation because the primary disability factor was pain and loss of repetitive use, rather than loss of range of motion. The examiner further noted that the disability was manifest by pain and difficulty continuing joint movement, which the Board interprets as suggestive of fatigue. There were muscle spasm and tenderness, but they did not result in abnormal gait or abnormal spinal contour. There was no guarding, no radiculopathy, and the spine was not ankylosed. There was no IVDS or neurologic abnormality. The examiner noted that the Veteran’s back condition would result in pain on lifting over 45 pounds. On September 2016 VA muscle injuries examination, the examiner noted a muscle injury to torso and neck (muscle group XX), in the thoracic region. Muscle spasms on the right side of the thoracic spine were noted. The examiner described the condition as a non-penetrating muscle injury, manifest by dull pain in the lower back. VA outpatient treatment records from an April 2019 physical examination showed forward flexion to 100 degrees. On February 2020 VA back examination the Veteran reported daily flare-ups of the spine, and described the pain as moderate to severe. He indicated that the flare-ups lasted “all the time” and were not alleviated by anything. He reported inability to lift more than 30 pounds, run, or walk more than a mile. Forward flexion was to 80 degrees, and combined range of motion was 220 degrees. The Veteran reported pain on movement, but the examiner noted it did not result in functional loss. There was no pain on weight bearing, and no evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing without additional functional loss. The examiner indicated that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repetitive use over time and during flare-ups. The Veteran did not exhibit guarding or muscle spasm. There was no radiculopathy and straight-leg-raise testing was negative. The spine was not ankylosed, and there was no IVDS. The examiner noted that the Veteran would experience increased back pain with lifting, bending, and prolonged walking. Regarding range of motion testing, the examiner indicated that the Veteran did not have pain on passive range of motion or on non-weight-bearing. The examiner found no neurological abnormalities related to the disability. When asked if the Veteran’s condition would preclude employment, the examiner noted that although the Veteran reported muscle spasm, there was no evidence of spasm that day. The examiner noted that the Veteran reported tenderness to light touch, and even described the pain as excruciating. However, he did not report similar pain when muscles between T6 and L1 were palpated, and there was no objective evidence of spasm on examination. The examiner noted that despite the Veteran’s complaints, he had no difficulty walking into and out of the examination room, nor did he have difficulty putting on his boots and coat. He was able to rise from his chair easily and sit easily. The Veteran complained of pain with range of motion, but the examiner noted that there was no objective evidence to attribute such pain to muscle spasms. The examiner found the Veteran’s response to the examination to be outside of the normal expectation. The Board finds that the record does not show that at any time for consideration the Veteran’s muscle spasm of the thoracic spine disability was manifested by symptoms and impairment of (or approximating) a severity warranting a rating higher than 20 percent. His range of lumbar spine motion studies consistently showed forward flexion greater than 30 degrees, even when considering the impact of repetitive use over time and flare-ups. The most recent VA examiner in February 2020 found no impact from the extent of disability found. Ankylosis of the thoracolumbar spine was never found. While the Veteran complained of radiating pain from his spine the multiple VA examiners, especially on September 2016 and February 2020 examinations did not find neurological manifestations, and radiculopathy was never found. The Board further finds that the Veteran’s reports of the severity of his symptoms, and that there are neurological manifestations, merit less probative value than the objective findings by VA examiners. The February 2020 examiner noted that the Veteran’s pain reports (and related limitations) were inconsistent not only with clinical findings, but also with observations of his functioning on examination, such as his ability to enter and leave the examination room, sit and stand up, and dress and undress, to include bending to don shoes. These observations suggest that there is a level of embellishment in the Veteran’s reports of symptoms and impairment. Even conceding (solely for the purpose of this appeal) that all spine functional limitations shown are attributable to his service-connected thoracic muscle spasms (as evidence of record suggests some may be due to non-service-connected spine pathology, such as degenerative joint disease of the lower spine) the severity of symptoms, and more significantly related functional impairment does not rise to a level warranting a schedular rating in excess of 20 percent. Regarding a potential rating under the criteria in the diagnostic Codes for muscle injuries, the Board notes that 38 C.F.R. § 4.56 governs the evaluation muscle disabilities, with diagnostic codes corresponding under 38 C.F.R. § 4.73, Codes 5301 to 5323. The Veteran’s functional limitations from his condition are already adequately addressed by his current rating under the General Formula. The Board notes that only a finding of a “severe” muscle injury would result in a rating in excess of the current 20 percent. 38 C.F.R. § 4.56 outlines what it is considered to be a “severe” muscle injury, which includes “through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring.” The September 2016 VA muscle injury examiner found only dull pain from muscle spasms, and a non-penetrating injury, and none of the effects characteristic of a severe thoracic muscle include. A rating in excess of 20 percent under provisions in 38 C.F.R. § 4.73 would be totally inappropriate. Accordingly, a rating in excess of 20 percent for the Veteran’s thoracic spasms is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.