Citation Nr: 21008104 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-18 046 DATE: February 11, 2021 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to a disability rating in excess of 10 percent for service-connected lumbosacral strain now with degenerative arthritis, levoscoliosis, and spina bifida occulta S1 (hereafter “lumbar spine disability”) prior to November 5, 2020, and in excess of 40 percent thereafter, is denied. Entitlement to a disability rating in excess of 20 percent for service-connected right shoulder, rotator cuff tendonitis (hereafter “right shoulder disability”) is denied. FINDINGS OF FACT 1. The Veteran’s hearing loss did not manifest in service nor within one year after separation and is otherwise not related to his in-service noise exposure. 2. Prior to November 5, 2020, the Veteran’s forward flexion of the thoracolumbar spine was limited to 80 degrees and the combined ROM of the thoracolumbar spine was to 220 degrees, and he was consistently found not to have muscle spasm/guarding resulting in abnormal gait or spinal contour, or any form of ankylosis; since November 5, 2020, there is no evidence of unfavorable ankylosis. 3. The Veteran’s right shoulder motion was limited at shoulder level throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected lumbosacral strain now with degenerative arthritis, levoscoliosis, and spina bifida occulta S1, prior to November 5, 2020, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237, 5242. 3. The criteria for entitlement to a disability rating in excess of 20 percent for service-connected right shoulder, rotator cuff tendonitis, have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5024, 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1998 to July 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in an April 2019 hearing. A transcript is of record. In July 2019, the Board remanded for obtaining outstanding VA and private treatment records and VA examinations/medical nexus opinions. Having reviewed the records, the Board finds that there has been substantial compliance with the previous Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With regards to the 2009 hearing test from the Jamaica Plains VA Medical Center—one of the documents requested to be obtained pursuant to the previous Board remand, which was noted in the previous Board remand as possibly having been located under a different section in CAPRI, rather than in progress notes, as it was conducted in connection with VA employment—to the extent that the only plausible way to obtain this record was through the Veteran making a request for those records himself and in light of the fact that the Veteran was asked to make such request himself (see July and August 2020 VA correspondence letters; see also VA 10-7131 form)—to which he failed to respond—the Board finds that there has been substantial compliance with the Board remand directives. While a claim for entitlement to service connection for tinnitus was also remanded pursuant to the July 2019 Board remand, this claim is no longer in appellate status, as it was granted in a November 2020 rating decision, effective December 31, 2013, with a 10 percent disability rating. Because this decision represents a full grant of the benefit sought on appeal, this issue is no longer before the Board. See Grantham v Brown, 114 F. 3d 1156 (Fed Cir 1997). In this case, the Veteran has not disputed either the effective date for the award of service connection or the rating assigned for this condition. Thus, this is not before the Board. During the pendency of the appeal period, the RO also granted a higher disability rating of 40 percent, effective November 5, 2020, for the service-connected lumbar spine disability. See November 2020 rating decision. However, as higher and separate ratings are available, the increased rating claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board also acknowledges the Veteran’s argument regarding the adequacy of the February 2014 VA hearing loss examination—i.e. that he was told to push the buttons when in doubt, even if he did not hear any sound—which in part served as a basis for the July 2019 Board remand in scheduling and obtaining another VA hearing loss examination. However, a presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties”); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examination). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. There was no indication that any of the findings were incomplete or biased, and to the extent that the Veteran was still found to have/diagnosed with hearing loss despite the alleged incident, the Board finds that there was no “clear evidence” of irregularity for which the presumption of regularity would be deemed to have been rebutted. The Board also points out that the Veteran was subsequently afforded a new VA examination pursuant to the July 2019 Board remand (although the July 2019 examiner ultimately provided that an “opinion regarding etiology cannot be provided within resorting to speculation as the results of the current test were inconsistent and unreliable”), and for that reason, the Board finds that remand is not required for another VA examination. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In deciding a claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. In making this determination, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 1. Entitlement to service connection for hearing loss is denied. The Veteran contends that his hearing loss is related to his noise exposure in service, in which he was around aircraft in a helicopter squadron but was unable to wear hearing protection as he had to wear ear buds for communication for work. See April 2019 hearing transcript. He testified he has had problems with hearing since separating from service, but added that it was around the time he started heating and air conditioning work post-service that he really started noticing a difference in pitches, for this position required him to be able to differentiate certain tones and pitches. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). It is not in question that the Veteran has current hearing loss as he has been diagnosed with such during the appeal period. The Veteran’s service treatment records are silent as to any hearing loss related complaints, diagnosis, or treatments. However, his medical surveillance questionnaire lists “noise” as one of the potential hazards, and his DD-214 form also documents his military occupational specialty as an aircraft ordnance technician. His July 1998 enlistment examination (although his July 1998 report of medical history checked off “ear”) and June 2002 separation examination, however, both document clinically normal ear condition. In February 2014, the Veteran first underwent a VA examination, during which time he was diagnosed with bilateral sensorineural hearing loss. Even after acknowledging the Veteran’s significant noise exposure in service, the examiner ultimately opined that it is not at least as likely as not caused by or a result of an event in military service—and in doing so, the examiner compared the hearing at enlistment and separation examinations, and pointed out that there was not any significant worsening of hearing. The examiner also highlighted the fact that his service treatment records are silent for any complaints of hearing loss or signs of auditory dysfunction and further stated that the Veteran’s hearing appears to have worsened after separating from the service, referencing the Veteran’s report that he periodically has worked around noise for 8 years wearing hearing protection. As briefly discussed above, while the Board acknowledges the Veteran’s argument disputing the adequacy of the examination, to the extent that the Veteran contested only the physical examination portion (rather than the adequacy of the medical etiology opinion), and as this opinion was furnished after reviewing all pertinent records, substantiated by concrete factual findings, the Board provides a high probative value to this opinion. Post-July 2019 Board remand, the Veteran was afforded another VA hearing loss examination in November 2020, during which time the examiner acknowledged the Veteran’s military noise exposure during his deployment to the Middle East (aircraft ordinance technician) and found that he has bilateral sensorineural hearing loss. However, the examiner ultimately opined that an “opinion regarding etiology cannot be provided within resorting to speculation as the results of the current test were inconsistent and unreliable.” There is no other medical etiology opinion of record. Thus, in light of the most probative evidence of record – the February 2014 VA examination – the Board finds that the Veteran is not entitled to service connection for his hearing loss condition. Furthermore, even though the Veteran’s hearing loss is a “chronic disease” under 38 C.F.R. § 3.309, the Board finds that he is not entitled to presumptive service connection for this condition. See 38 C.F.R. § 3.303(b). First, as addressed above, his June 2002 separation examination was normal. Moreover, the Veteran himself testified that it was when he started heating and air conditioning work post-service that he really started noticing a difference in pitches, which tends to weigh heavily against his contention now that he has experienced hearing loss since separating from service. In addition, while the Veteran testified that he first underwent a hearing test after service in 2009—which the Board sought to obtain pursuant to the July 2019 Board remand—the Veteran failed to request this record as requested by the RO (see August 2020 VA correspondence letters), and there is no evidence, despite there being voluminous treatment records, elucidating the onset of hearing loss or any report of continuous symptoms since service. Thus, the claim is denied. The Board also considered the Veteran’s lay assertion that his hearing loss is due to his noise exposure in service. While a lay person is certainly competent to report matters within his own personal knowledge, a lay person without appropriate medical training and expertise simply is not competent to opine on more complex medical questions. Thus, the Board gives no probative value to the lay assertion to that extent and gives more probative value to the negative medical nexus opinion provided during the VA examination. In consideration of the evidence, the Board finds that his hearing loss is not related to service and the claim is denied. The benefit-of-the-doubt doctrine is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 further allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Id. Furthermore, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 2. Entitlement to a disability rating in excess of 10 percent for service-connected lumbar spine disability prior to November 5, 2020, and in excess of 40 percent thereafter, is denied. The Veteran seeks a higher disability rating for the service-connected lumbar spine disability. The Veteran contends that his lower back pain is much more severe than the evaluation provided by RO and adds that his x-rays reveal more extensive damage to his lumbar spine than that determined by RO. The Veteran is currently in receipt of a 10 percent rating under DC 5237 prior to November 5, 2020, and a 40 percent under DC 5242-5237 thereafter. Recently, portions of the schedule for rating musculoskeletal system have been amended, and that amendment went into effect, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a), Diagnostic Code 5242. Under the recently promulgated final rule, DC 5242 provides rating criteria for degenerative arthritis, degenerative disc disease other than intervertebral disc symptom (see either DC 5003 or 5010). DC 5237 remains unchanged. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. Also, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, at Note 1. After review of the evidence, the Board concludes the preponderance of the evidence is against the Veteran’s claim for any higher ratings during the appeal period. The Veteran first underwent a VA examination in February 2014, during which time he reported pain in the left side rated as 10/10 and not radiating down his leg. He reported taking Aleve, with little result, and problems driving and having to constantly move around. He reported experiencing flare-ups rated as 10/10 when staying in one position for too long. His initial range of motion (ROM) of forward flexion was to 80 degrees, with objective evidence of painful motion beginning at 80 degrees, and extension to 30 degrees, with objective evidence of painful motion beginning at 30 degrees, and his initial combined ROM of the thoracolumbar spine was to 210 degrees. He was able to perform after repetitive use testing, with no additional loss of ROM. While the examiner indicated the Veteran has functional loss due to the following factors—less movement than normal, weakened movement, pain on movement, disturbance of locomotion, interference with sitting, sitting, and standing and/or weight-bearing—there was negative evidence of pain on palpation, muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour, or localized tenderness. He manifested “normal” muscle strength and sensory/reflex exam results, with no evidence of muscle atrophy, and his straight leg raising test result was also negative. The Veteran was not found to present radicular pain or symptoms due to radiculopathy, and there was also no evidence of ankylosis or IVDS. During the June 2016 VA examination, the Veteran was diagnosed with lumbar strain. He reported constant back pain that worsens with sitting/standing for more than 20 minutes, lifting more than 20 pounds, and bending, for which he takes Aleve (which he noted to provide only little relief, if any). He also reported trouble driving and having to constantly move due to his lower back pain, which he rated at 4/10, and further reported using heat/ice PRN and stretching every afternoon for temporary relief. However, he neither reported flare-ups nor functional loss/impairment. His initial ROM of forward flexion was to 85 degrees, extension to 30 degrees, with a combined range of thoracolumbar spine of 235 degrees, but the ROM itself was not found to contribute to a functional loss. There was also no evidence of pain with weight bearing nor objective evidence of localized tenderness or pain on palpation. He was able to perform both the repetitive use testing with at least three repetitions and after repeated use over time, with no additional loss of function or ROM. There was also no evidence of guarding or muscle spasm. The examiner identified the following as additional factors contributing to his disability: less movement than normal due to ankylosis/adhesions, etc., interference with sitting, and interference with standing. He manifested “normal” muscle strength and sensory/reflex exam results, with no evidence of muscle atrophy, and his straight leg raising test result was also negative. There was also no evidence of radiculopathy, other neurologic abnormalities, ankylosis, IVDS or use of assistive devices. The Veteran underwent a VA examination in November 2020, during which time he was diagnosed with degenerative arthritis of the spine, lumbosacral strain, levoscoliosis of the lumbar spine, and spina bifida occulta S1. He reported constant low back pain localized to the left side, and occasionally having symptoms radiating down to his left leg. He did not report flare-ups, but reported an inability to drive more than one hour before starting to experience symptoms. He indicated having no limitations with walking or standing, but reported experiencing pain all the time which increases with the level of use. His initial ROM of forward flexion was to 30 degrees, extension to 20 degrees, and ROM itself was not found to contribute to a functional loss. While there was pain noted on examination that was noted to cause functional loss, there was no evidence of pain with weight bearing nor objective evidence of localized tenderness or pain on palpation. He was able to perform the repetitive use testing with at least three repetitions, with no additional loss of function or ROM. While he was not being examined immediately after repetitive use over time, the examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time, and even after finding pain as limiting functional ability with repeated use over a period of time, the examiner ultimately described ROM of forward flexion as to 30 degrees and extension to 20 degrees (which are identical to those of his initial ROM). His muscle strength and reflex/sensory exam were all normal, with no evidence of muscle atrophy. There was also negative straight leg raising test, as well as no evidence of radiculopathy. There were no other neurologic abnormalities, or IVDS of the thoracolumbar spine or any indication of assistive devices. The Veteran’s private treatment records include complaints of moderate to sharp pain in the lower back, x-ray of the lumbar spine showing normal lumbar lordosis, and decreased ROM, but do not otherwise provide any information relating to ROM of the lower back. There is also no evidence of any form of ankylosis. See January 2014 private treatment records and November 2015 treatment records. The Board finds that the preponderance of the evidence is against a finding that the Veteran warrants a rating in excess of 10 percent prior to November 5, 2020, and in excess of 40 percent thereafter. Prior to November 5, 2020, the Veteran’s forward flexion of the thoracolumbar spine was to 80 degrees and the combined ROM of the thoracolumbar spine to 220 degrees; moreover, during that time period, he was consistently not found to have muscle spasm/guarding resulting in abnormal gait or spinal contour, nor manifest any form of ankylosis. With regards to the June 2016 VA examination noting “additional factors contributing to disability: less movement than normal due to ankylosis, adhesions, etc,” the Board points out that this is not inconsistent with the finding of “no ankylosis”, as the “additional factors contributing to disability” section simply provides a list of possible reasons why there is less movement. Moreover, there was no evidence of ankylosis in any of his VA examinations or treatment records. Thus, the Board finds that a rating in excess of 10 percent is not warranted prior to November 5, 2020. With regards to the period starting November 5, 2020, the Board notes that there is simply no evidence of any unfavorable ankylosis that would warrant a rating in excess of 40 percent. Thus, the Veteran’s claim is denied. The Board considered the possibility of awarding a higher rating under 38 C.F.R. §§ 4.40 and 4.45 and declines to do so. The Board acknowledges the Veteran’s report of difficulty driving and having to constantly move due to pain associated with his lower back condition. See February 2014, June 2016 and November 2020 VA examinations. Although his reports are credible, the general rating formula for spine disabilities contemplates symptoms such as pain or lack of endurance in the area of the spine affected by disease. Furthermore, the Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion. See February 2014, June 2016 and November 2020 VA examinations. Even when he was found to have less movement than normal/interference with sitting and standing, such were of the extent that had already been contemplated by and compensated under the general rating schedule. As such, a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). See also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (holding that when evaluating musculoskeletal disabilities, 38 C.F.R. § 4.40 may be used to understand the nature of a veteran’s disability, but not as a basis to assign a separate disability rating). The Board has also considered whether there are neurological abnormalities that would warrant a higher/separate rating. See General Rating Formula, Note (1). The Veteran testified to having various problems with his left leg—ie. left foot drag, difficulty lifting leg up, and numbness in his left leg. The Veteran’s representative contends that the Veteran warrants a separate rating for radiculopathy of his left leg and added that the Veteran was diagnosed with radiculopathy in 2007. October 2007 emergency department notes document the Veteran’s complaint of pins and needles sensation in the lower left extremity radiating from the left lower back, and diagnosed lumbar radiculopathy. The Board does not find this evidence warrants a separate rating, however. First, it must be noted that this evidence pre-dates the appeal period by several years. Therefore, it is not probative evidence as to the Veteran’s medical condition during the appeal period. Second, all the medical evidence during the appeal period conclusively establishes no radiculopathy or sciatica has been diagnosed. While the Veteran has made complaints such as radiating pain during his VA examinations, every examination from 2014 to 2020 has expressly stated “no” to the question of “Does the Veteran have radicular pain or any other signs or symptoms due to radiculopathy?” As noted on VA’s examination report from 2020, a positive straight leg raising test suggests radiculopathy, yet the Veteran’s results were negative for both legs on every VA examination between 2014 and 2020. Every VA examination has also shown no sensory or reflex deficits. The Board has also reviewed his VA treatment records for the entire appeal period, and they do not show diagnosis of sciatica or radiculopathy. The November 2020 VA examiner stated there is a “lack of objective evidence in support of a diagnosis of radiculopathy.” While the Veteran is competent to report a symptom such as radiating pain or numbness, he does not possess the medical expertise to opine these symptoms are representative of radiculopathy or sciatica. Every VA examiner considered his symptoms, yet still concluded he had no signs of radiculopathy, and every objective test result potentially indicative of such has been negative. This medical evidence is far more probative than the Veteran’s lay statements and conclusively establishes he does not have any neurological deficits due to his back condition. There are no other neurological abnormalities noted during the appeal period that would warrant a separate rating. In summary, the Board finds a disability rating in excess of 10 percent rating prior to November 5, 2020, and in excess of 40 percent thereafter for the Veteran’s service-connected lumbar spine disability, is not warranted throughout the appeal period. As the evidence preponderates against the claim, the benefit of the doubt rule has no application. 3. Entitlement to a disability rating in excess of 20 percent for service-connected right shoulder disability is denied. The Veteran seeks a higher disability rating for his service-connected right shoulder disability. He claims that his current rating does not reflect the current severity, especially considering the amount of pain and loss of mobility. The Veteran is currently in receipt of a 20 percent rating under DC 5024-5201 effective December 31, 2013. 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. 38 C.F.R. § 4.27. The additional code is shown after the hyphen. Id. As briefly aforementioned, the final rule, which amends portions of the schedule that addresses the musculoskeletal system, went into effect, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201, 5024). The hyphenated diagnostic code in this case indicates that tendonitis under Diagnostic Code 5024, is the service-connected disorder, and limitation of motion of the arm, under Diagnostic Code 5201, is a residual condition. Under the aforementioned final rule, the note to the Diagnostic Code 5024 provides that diseases under diagnostic codes 5013 through 5024 to be evaluated based on limitation of motion of affected parts. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a), Diagnostic Code 5024. Under both the prior and the amended version of Diagnostic Code 5201, limitation of motion of the arm at the shoulder level (flexion and/or abduction limited to 90 degrees) is rated 20 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. The Veteran is right-hand dominant, and as such the criteria for a major shoulder apply. The Veteran underwent multiple VA examinations throughout the appeal period: February 2014, June 2016 and November 2020. During the February 2014 VA examination, the Veteran was diagnosed with right shoulder sprain, and he reported having pain with heavy lifting and flare-ups when he rolls over onto it in his sleep. His initial right shoulder flexion was to 180 degrees, with objective evidence of painful motion ending at 180 degrees, abduction to 180 degrees, with objective evidence of painful motion ending at 180 degrees. The Veteran was able to perform after repetitive use testing, with no additional loss of ROM. Although he was noted to have functional loss due to pain, there was no evidence of localized tenderness. His shoulder muscle strength test results for abduction and forward flexion were normal, and there was no evidence of ankylosis, recurrent dislocation of the glenohumeral joint, or history of clavicle/scapula/acromioclavicular (AC) joint, and sternoclavicular joint condition. He was also found not to have tenderness on palpation of the AC joint, joint replacement and/or other surgical procedures. In June 2016, the Veteran reported intermittent right shoulder pain that occurs upon his waking up and using heat/ice PRN and stretching activities every afternoon, which he noted provides temporary relief. He rated his right shoulder pain at 3/10. He manifested initial ROM of flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. He neither reported flare-ups nor functional loss/impairment. While there was objective evidence of localized tenderness/pain on palpation of the joint, pain with flexion, and crepitus, pain was not noted to result in or cause functional loss, and there was also no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions, and also immediately after repetitive use over time. The Veteran did not report any flare-ups during the examination, and the examiner indicated that there were no additional factors contributing to his right shoulder disability. As for the muscle strength testing, the Veteran presented normal forward flexion/abduction strength test, with no evidence of reduction in muscle strength, muscle atrophy, or ankylosis. Additionally, the result for the Veteran’s empty-can test, external rotation/infraspinatus strength test, lift-off subscapularis test, and Hawkins’ impingement were all negative. There was also no evidence of shoulder instability, dislocation, or labral pathology; conditions or impairments of the humerus; or use of any assistive devices. The examiner specifically indicated that pain/weakness/fatigability/incoordination do not significantly limit functional ability during flare-ups, and added that the exam was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. The Veteran underwent another VA examination in November 2020, during which time he was diagnosed with rotator cuff tendonitis. He reported pain in the right shoulder during sleep and being awakened by it; he also reported avoiding right shoulder use when it involves overhead movements. He did not report any flare-ups impacting the function of his shoulder/arm, but identified his inability to use the right shoulder with overhead movements, as well as sleep disturbances, as his functional loss/impairment. His initial range of motion (ROM) of flexion was to 100 degrees, abduction to 90 degrees, external and internal rotation to 90 degrees each, and while pain was noted with flexion/abduction/external and internal rotation, there was neither evidence of pain with weight bearing nor evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss or ROM after three repetitions, and while he was not being examined immediately after repetitive use over time, the examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time, with no additional loss or ROM. Even though the examination was not conducted during a flare-up, the examiner indicated no change in the ROM. His muscle strength was normal, with no evidence of muscle atrophy or ankylosis. As for rotator cuff related tests, he tested negative for all tests, to include empty-can test, external rotation/infraspinatus strength test, lift-off subscapularis test, with the exception of the Hawkins’ impingement test. There was no evidence of shoulder instability, dislocation, or labral pathology; conditions or impairments of the humerus; or use of any assistive devices. The examiner did not find any functional impact associated with this condition. His treatment records merely document complaints and treatments received for his right shoulder disability, but do not otherwise provide pertinent information relating to any ROM or any other functional impairments. Upon consideration of the evidence, the Board finds that a rating in excess of 20 percent for the right shoulder condition is not warranted. At no point during the pendency of the appeal has the right shoulder exhibited range of motion limited to below shoulder level, which would be necessary to warrant a rating greater than the assigned 20 percent rating—in fact, his flexion was, at worst, to 100 degrees, abduction to 90 degrees, and internal and external rotation to 90 degrees. Furthermore, he consistently manifested normal muscle strength, with no evidence of ankylosis, muscle atrophy, or shoulder instability. The Board also considered whether a separate shoulder rating was appropriate in this case. DC 5200 considers ankylosis, which has not been shown here. DC 5202 applies to impairment of the humerus and scapulohumeral joint, and DC 5203 applies to malunion, non-union, or dislocation of the clavicle or scapula, none of which has been shown in the medical evidence of record for the Veteran’s service-connected right shoulder disability. Moreover, the Board finds that the current 20 percent rating adequately contemplates the functional impairment resulting from the Veteran’s right shoulder condition. The Board acknowledges the Veteran’s report of pain waking him up at night and restricting his ability to make overhead movements. Although his reports are credible, the current rating schedule contemplates symptoms such as pain or limitation of the motion. Furthermore, the Veteran was able to perform repetitive use testing, with no additional loss of function or range of motion. As such, a higher rating is not warranted. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, supra. In summary, the Board finds disability rating in excess of 20 percent for the Veteran’s service-connected right shoulder disability is not warranted throughout the appeal period. As the evidence preponderates against the claim, the benefit of the doubt rule has no application. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.