Citation Nr: 21009748 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-13 378 DATE: February 23, 2021 ORDER Entitlement to service connection for a thyroid disorder is denied. Entitlement to a rating greater than 10 percent prior to January 15, 2020, and in excess of 20 percent thereafter, for a low back disorder is denied. Entitlement to a rating greater than 20 percent for a left shoulder disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a thyroid disorder began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s lumbar spine disorder manifested in no greater than forward flexion to 90 degrees and combined range of motion to 215 degrees prior to January 15, 2020 and no greater than forward flexion of the thoracolumbar spine to 25 degrees without ankylosis or doctor prescribed bed rest. 3. The Veteran’s left arm bursitis is manifested at worse by flexion to 130 degrees and abduction to 115 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for a thyroid disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 10 percent prior to January 15, 2020 and in excess of 20 percent thereafter for a lumbar spine disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 3. The criteria for a rating in excess of 20 percent for left shoulder bursitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5201, 5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 2002 to April 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned in October 2019, a transcript of that hearing is of record. The appeal was remanded in December 2019 for further development. That development was completed, and the appeal is ready for adjudication. Entitlement to service connection for a thyroid disorder The Veteran contends that he has a thyroid disorder which began in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records are silent regarding a thyroid disorder. The Veteran’s April 2006 report of medical examination for separation included a finding of a normal endocrine system and no diagnoses or thyroid symptoms are noted. The Veteran reported no thyroid trouble or goiter in his April 2006 report of medical history for separation. A March 2003 report indicates that the Veteran required a typhoid immunization, but thyroid problems are not shown. Treatment records demonstrate that the Veteran was diagnosed with hypothyroidism in September 2009. At his October 2019 hearing, the Veteran testified that when he looked in his medical records, he found that he was found to have a thyroid problem while stationed in Fort Irwin, California. The Veteran stated that his treatment records around 2003 noted a thyroid disorder. He stated that he only heard about the thyroid problems when he was a critical state in Florida around 2010. The Board concludes that, while the Veteran has a current diagnosis of hypothyroidism, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of a thyroid disorder began during service or is otherwise related to an in-service injury, event, or disease. Initially, while the Veteran reported that a thyroid problem was shown in service, service treatment records do not note treatment for or complaints of thyroid symptoms. Moreover, the Veteran’s endocrine system is found to be normal at the time of separation. Thus, no in-service injury is shown. Moreover, the Veteran is shown to have first demonstrated a thyroid disorder years after service, and the Veteran confirms that this is when any thyroid symptoms were first shown. The evidence of record shows no nexus between the Veteran’s thyroid symptoms as shown in September 2009 and his service whatsoever. While the Veteran may sincerely believe that he has a thyroid disorder which is related to service, he is not shown to have the medical expertise to make such a determination, the record does not demonstrate that the Veteran has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Nor is the Veteran’s opinion, where the evidence fails to show an in-service incurrence of a thyroid disability or any relationship between service and a current disability, sufficient to trigger the duty to obtain a medical examination. The Board finds that the evidence weighs against the Veteran’s claim for service connection for a thyroid disability as an in-service incurrence of such or a nexus relating a current disability to service is not demonstrated. Accordingly, the Veteran’s claim for service connection for a thyroid disability is denied. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Entitlement to a rating in excess of 10 percent for a lumbar spine disorder prior to January 15, 2020, and in excess of 20 percent thereafter The Veteran contends that he is entitled to a higher disability rating for his lumbar spine disability. The Veteran is in receipt of a 10 percent rating from July 18, 2007 to January 14, 2020, and 20 percent thereafter. The Veteran claimed a higher disability rating in May 3, 2012. The Veteran’s lumbar spine disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the 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 for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Such abnormalities are not shown by the evidence of record and will not be discussed further in the analysis below. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When rated based on incapacitating episodes, a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. 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. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. 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. The Board finds that because the Veteran himself has adequately described the severity, frequency, and duration of his flare-ups and their functional impact; further development is unnecessary. Id. at 32. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent prior to January 14, 2020. The Veteran was afforded a VA examination in June 2013, a diagnosis of lumbar strain was assigned. The Veteran reported that he had to stay in bed one to two days a week due to flare-ups of back pain. Range of motion was to 90 degrees of flexion and 25 degrees of extension with no objective evidence of painful motion. Lateral flexion was to 25 degrees bilaterally, lateral rotation was to 25 degrees bilaterally, objective evidence of painful motion was not noted. The Veteran was able to perform repetitive use testing, there was no change in range of motion. Pain on movement was noted as a functional loss due to repetitive use. There was no guarding or muscle spasm. The Veteran was not found to have intervertebral disc syndrome. Regrettably, treatment notes do not include further range of motion findings, however the Veteran is shown to continuously note back pain. A June 2017 treatment note included a finding of a flattened lumbar spine. Range of motion testing was not conducted and the cause of the flattening of the lumbar spine was not noted. At his October 2019 hearing, the Veteran reported that his back symptoms were worse. The Veteran reported two to three flare-ups of pain a month where he could not get out of bed. He stated, however, that he fought it, and that he didn’t stay home or miss time from work. The Veteran stated that he was able to help clean but not able to do yard work. Treatment records demonstrate the Veteran’s complaints of back pain for the period considered, however range of motion testing is not shown beyond the Veteran’s June 2013 VA examination. While limitations of range of motion due to flare-ups is not demonstrated during this period, the Veteran’s range of motion without flare-up is noted to exceed 85 degrees, the upper most limit for a 10 percent rating for limitation of flexion described in the rating criteria, and the Veteran reported having to be in bed due to pain, but limitation of motion due to flare-ups was not reported, nor was limitation of motion found on repetitive use testing and the Veteran testified that while he had to stay in bed he “fought through” his pain and was able to work during flare-ups. Further, his combined range of motion is well within the description for a 10 percent rating, at 215 degrees with the rating for 10 percent describing combined range of motion greater than 120 degrees but no greater than 235 degrees, nor is IVDS shown during this period. Thus, a 10 percent rating is most appropriate. The evidence prior to January 14, 2020, then, does not demonstrate flexion limited to 60 degrees or less, or combined range of motion not greater than 120 degrees, abnormal the Veteran was not found to have muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a lumbar spine disorder from January 15, 2020. At a January 2020 VA examination, the Veteran was found to have lumbosacral strain and intervertebral disc syndrome. The Veteran reported flare-ups twice a week which were severe and lasted between thirty minutes to an hour. The Veteran reported that the Veteran’s back symptoms interfered with his work in that he worked on utilities in the field putting pout piping and water meters. Range of motion testing revealed forward flexion to 70 degrees, extension to 20 degrees, pain was noted on examination and found to cause functional loss. There was evidence of pain with weight bearing. It was noted that pain, weakness, fatigability and/or incoordination significantly limited functional ability with repeated use. Described in terms of range of motion, flexion was to 50 degrees and 10 degrees of extension. Flare-ups were estimated as leading to forward flexion to 35 degrees and extension to 5 degrees. The Veteran had muscle spasm or guarding which did not result in abnormal gait or spine contour. There was no muscle atrophy. Ankylosis was not found. The Veteran was found to have IVDS which did not require prescribed bed rest. The Veteran was not found to have thoracolumbar vertebral fracture resulting with loss of 50 percent or more of height. The Veteran is not shown, then, to demonstrate forward flexion to 30 degrees or less, even with flare-ups, or ankylosis. As such, a disability rating in excess of 20 percent is not warranted. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements regarding his back pain, the evidence does not demonstrate that the Veteran’s back pain or limitations of range of motion more closely approximate the symptoms described in the higher ratings, instead, the Veteran’s limitations of motion, even with pain taken into account, leads to more flexion than described in higher ratings and the record does not show, nor do his symptoms most closely approximate immobility and consolidation of a joint due to disease, injury, or surgical procedure. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As such, a disability rating in excess of 20 percent for the Veteran’s lumbar spine disorder is not warranted. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the right and left lower extremities associated with lumbar strain and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to January 15, 2020, and in excess of 20 percent thereafter. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a disability rating in excess of 20 percent for left shoulder bursitis The Veteran contends that he is entitled to a higher rating for his left shoulder bursitis. The appealed, August 2013 rating decision continued the Veteran’s 10 percent rating. However, in an August 2020 rating decision, the Veteran’s evaluation was increased to 20 percent, effective May 3, 2012, the date of the Veteran’s claim for an increased rating. Thus, the issue before the Board is whether the Veteran’s symptoms entitle him to a disability rating in excess of 20 percent. The Veteran’s left shoulder bursitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). 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. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” 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. Included in the claims file is a June 2013 VA examination of the shoulder. A diagnosis of shoulder bursitis was provided. The Veteran reported that the Veteran complained of increased stiffness and pain with carrying and lifting since his last examination. It was noted that the Veteran was right hand dominant. The Veteran reported that flare-ups impacted the function of the arm. Flexion was to 180 degrees, with pain at 90 degrees. Left shoulder abduction was to 180 degrees with no objective evidence of painful motion. Following repetitive use testing, the Veteran was found to have flexion to 180 degrees and abduction to 180 degrees. The Veteran was not found to have limitation of left shoulder range of motion following repetitive use. Cross body adduction was negative. It was noted that the Veteran’s bursitis hinders range of motion and hindered his activities of daily living. During his October 2019 Board hearing the Veteran reported that his left shoulder pain had increased since his last examination. The Veteran reported that he could move his arm over his head but that it hurt to do so and that he had to work to move it. At a January 2020 VA examination, the Veteran reported that his left shoulder hurt when he had to lift it and that it interfered with work. Range of motion testing revealed flexion to 130, abduction was to 115, external rotation was to 50 degrees and rotation was to 40 degrees. Pain was reported as causing functional loss. The Veteran did not report flare-ups of the shoulder or arm. With repeated use testing, flexion was to 115 degrees, abduction was to 105 degrees, external rotation was to 45 degrees and internal rotation was to 30 degrees. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for left shoulder bursitis. The evidence of record shows that the Veteran is right-handed as demonstrated by the Veteran’s reports in examinations. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran is limited by his shoulder pain would not result in symptoms more nearly approximating limitation of motion to 25 degrees from the side. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for left shoulder bursitis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.