Citation Nr: 21010978 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-28 353A DATE: February 26, 2021 ORDER Effective July 26, 2016, a 20 percent rating for intervertebral disc syndrome and degenerative arthritis of the thoracolumbar spine is granted. Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome and degenerative arthritis of the thoracolumbar spine from August 25, 2020 is denied. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity, sciatic nerve, prior to August 25, 2020, is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity, sciatic nerve, from August 25, 2020, is denied. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity, sciatic nerve, is denied. Entitlement to a rating in excess of 20 percent for right shoulder strain is denied. Entitlement to a rating in excess of 20 percent for left shoulder strain is denied. Entitlement to a rating in excess of 10 percent for degenerative arthritis and shin splints of the right knee is denied. Entitlement to a rating in excess of 10 percent for degenerative arthritis and shin splints of the left knee is denied. FINDINGS OF FACT 1. From July 26, 2016, to August 25, 2020, and considering the Veteran’s pain and corresponding functional impairment, including during flare-ups, the Veteran’s intervertebral disc syndrome and degenerative arthritis of the thoracolumbar spine is productive of approximately forward flexion greater than 30 degrees but not greater than 60 degrees. 2. Since August 25, 2020 the Veteran’s intervertebral disc syndrome and degenerative arthritis of the thoracolumbar spine has not manifested in forward flexion of 30 degrees or less, or favorable ankylosis of the thoracolumbar spine. 3. Prior to August 25, 2020, the Veteran’s radiculopathy of the right lower extremity is characterized by mild incomplete paralysis. 4. From August 25, 2020, the Veteran’s radiculopathy of the right lower extremity is characterized by moderate incomplete paralysis. 5. The preponderance of the evidence showed that at no point since has the Veteran’s left lower extremity radiculopathy been productive of moderate incomplete paralysis of the sciatic nerve. 6. The Veteran is right-hand dominant; therefore, his right shoulder is the major extremity and his left shoulder is his minor extremity. 7. The preponderance of the evidence shows that the Veteran’s right shoulder strain has been manifested by limitation of right shoulder flexion and abduction resulting in a disability picture comparable to no worse than limitation of right shoulder flexion and abduction to shoulder level. 8. The preponderance of the evidence shows that the Veteran’s left shoulder strain has been manifested by limitation of left shoulder flexion and abduction resulting in a disability picture comparable to no worse than limitation of left shoulder flexion and abduction to shoulder level. 9. The Veteran’s degenerative arthritis and shin splints of the right knee is not productive of flexion limited to 30 degrees or less. 10. The Veteran’s degenerative arthritis and shin splints of the left knee is not productive of flexion limited to 30 degrees or less. CONCLUSIONS OF LAW 1. Effective July 26, 2016, the criteria for a 20 percent rating for intervertebral disc syndrome and degenerative arthritis of the thoracolumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.30, 4.40, 4.45, 4.59 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for a rating in excess of 20 percent for intervertebral disc syndrome and degenerative arthritis of the thoracolumbar spine from August 25, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5243. 3. The criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity, sciatic nerve, prior to August 25, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, DC 8720. 4. The criteria for a rating in excess of 20 percent for radiculopathy of the right lower extremity, sciatic nerve, from August 25, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, DC 8620. 5. The criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity, sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a. DC 8720. 6. The criteria for a rating in excess of 20 percent for right shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.69, 4.71a, DC 5201. 7. The criteria for a rating in excess of 20 percent for left shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.69, 4.71a, DC 5201. 8. The criteria for a rating in excess of 10 percent for degenerative arthritis and shin splints of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5260. 9. The criteria for a rating in excess of 10 percent for degenerative arthritis and shin splints of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1966 to May 1968. The Board notes, in his June 2017 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge; however, in September 2019 correspondence, the Veteran withdrew his hearing request. This case was previously remanded by the Board in a November 2019 decision for further development. In light of the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations, the Board found new VA examinations should be provided addressing the Veteran’s right shoulder and left shoulder conditions; lower back condition; right shin splint and left shin splint and radiculopathy of the right lower extremity and left lower extremity. See November 2019 BVA Decision. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where 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. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Effective July 26, 2016, a 20 percent rating for intervertebral disc syndrome and degenerative arthritis of the thoracolumbar spine The Veteran is seeking a rating in excess of 10 percent for his back disability prior to August 25, 2020, pursuant to Diagnostic Code 5243. Diagnostic Code 5243 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is 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 assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Otherwise, disabilities of the spine are rated according to the number of incapacitating episodes a person has had in the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See Note (1) to Diagnostic Code 5243. Under the formula, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 month period, a 20 percent rating is assigned for incapacitating episodes having a total duration between 2 to 4 weeks during the past 12 month period, a 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Veteran has been service-connected for his back disability since July 2016. See October 2016 Rating Decision. The Board finds that a 20 percent rating, but not higher, is warranted from July 26, 2016 to August 25, 2020. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask her to describe the additional functional loss, if any, she suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” Here, the Board finds that none of the VA examinations for the Veteran’s back disability complied with addressing the impact of flare-ups on range of motion of the Veteran’s back prior to August 25, 2020, pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and with Sharp. Therefore, these examinations are deemed inadequate. Prior to August 25, 2020, the Veteran as provided a VA examination for his back in September 2016. The Veteran was diagnosed with a lumbosacral strain, and he reported flare-ups of the back. The Veteran stated he does not have any resting back pain, but experiences flare-ups upon moving around or turning, with severity around 8/10. He reported these flare-ups daily, and he took pain medication and rested to alleviate the pain; it took an hour for the pain to subside. The range of motion testing showed Veteran’s forward flexion was noted at 0 to 70 degrees, with pain noted that contributed to functional loss. There was no objective evidence of tenderness or pain on palpation of the joints or associated soft tissue of the back. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time. The examination was not conducted during a flare-up; the examiner held the exam was medically consistent with the Veteran’s statements describing functional loss during flare-ups. Additionally, no guarding muscle spasms, muscle atrophy, ankylosis, or IVDS was noted. The Veteran used a cane as an assistive device on a regular basis. Based on the medical records and evidence provided in Veteran’s claims file, the inadequacy of the VA examination provided because it is not Sharp compliant, and the lay testimony of taking pain medication, deterioration of back pain and continuing increase of functional loss during flare-ups and with repeated use over time, the Board finds that the Veteran’s back disability more nearly approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.. Additionally, the evidence shows the Veteran reported pain medication he took and chiropractor treatments he attended to treat his back. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Thus, resolving all doubt in favor of the Veteran, the Board finds that a rating of 20 percent for his lumbar spine disability is warranted from July 26, 2016, the date of the claim, to August 25, 2020, the date of the VA examination where the Veteran’s disability approximated a 20 percent rating. A rating in excess of 20 percent from July 26, 2016 to August 25, 2020, is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. At no point has the evidence approximated the criteria corresponding to a higher rating. See Hart, supra. 2. Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome and degenerative arthritis of the thoracolumbar spine from August 25, 2020 The Veteran is seeking a rating in excess of 20 percent for his back disability from August 25, 2020, pursuant to DC 5243. Under the revised regulations, effective February 7, 2021, DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. As the Veteran’s back diagnoses include disc herniation with compression and/or irritation of the adjacent nerve root (IVDS), DC 5243 will be applied to adjudicate the claim. Here, the Board found the September 2016 VA examination did not estimate the additional functional loss during periods of Veteran’s reported flare-ups of the back under Sharp, and pursuant to the Board’s November 2019 remand instructions, the Veteran was afforded a post-remand VA examination for his back disability in August 2020. The August 2020 VA examination diagnosed the Veteran with degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). The Veteran reported he has trouble moving in the morning, has constant pain in the sacroiliac area which travels through the right buttock stopping below the knee, feels weakness in his legs, and takes pain medication for his back twice a week and lies supine with legs elevated. The Veteran did not report flare-ups of the back, but reported having functional loss of the back has he walks with a cane, has others drive on his behalf, has limited ability to walk around his home, and is unable to lift or carry due to decreased balance. Forward flexion was noted at 0 to 55 degrees, the combined range of the thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees, and there was objective evidence of mild localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions, and fatigue caused functional loss, but forward flexion was noted at 0 to 55 degrees. He was also examined immediately after repetitive use over time and pain, weakness, fatigability or incoordination did not significantly limit functional ability. The Veteran did have muscle spasms of the back but did not result in abnormal gait or spinal contour. There was no evidence of guarding, muscle atrophy, or ankylosis of the spine. There were no other neurologic abnormalities or findings related to a spine/back condition. Muscle strength testing showed normal strength with hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. The Veteran did have IVDS of the thoracolumbar spine, but the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. There was no objective evidence of pain when the spine is non-weight bearing. The Board finds that the results of the August 2020 VA examination are consistent with a 20 percent rating for the back, pursuant to DC 5243. A higher evaluation of 40 percent is not warranted for degenerative arthritis of the spine and IVDS unless the evidence shows favorable ankylosis of the entire thoracolumbar spine, forward flexion of 30 degrees of less, or IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 38 C.F.R. § 4.71a. The preponderance of the evidence shows that the Veteran’s back disability does not warrant a rating in excess of 20 percent from August 25, 2020. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca v. Brown, 8 Vet. App. 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45. In light of the foregoing, even considering the Veteran’s pain and corresponding functional impairment, the preponderance of the evidence shows that the Veteran’s pain causes functional impairment equivalent no more than 20 percent disabling. Therefore, the Board finds that the Veteran’s disability picture is most closely approximated by the 20 percent criteria from August 25, 2020. 38 C.F.R. § 4.7. The preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. 3. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity, sciatic nerve, prior to August 25, 2020 4. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity, sciatic nerve, from August 25, 2020 5. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity, sciatic nerve The Veteran was rated at 10 percent disabling for his right lower extremity radiculopathy since July 26, 2016, pursuant to DC 8720. In the October 2020 rating decision, the rating was increased to 20 percent disabling pursuant to DC 8620, effective August 25, 2020, the date of the VA examination showing an increase in severity of the disability. The Veteran has been rated 10 percent disabling for his left lower extremity radiculopathy since July 26, 2016, pursuant to DC 8720. Sciatic nerve neurological manifestations are rated under Diagnostic Code 8520, 8620, or 8720 as, respectively, paralysis, neuritis or neuralgia of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The Board acknowledges that the terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for “mild” includes not very severe. WEBSTER’S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for “mild” is “slight” and definitions for “slight” includes small in size, degree, or amount. Id. at 1038. The definitions for “moderate” includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for “severe” includes extremely intense. Id. at 1012. It is also noted that the term “moderately severe” includes impairment that is considered more than “moderate” but not to the extent as to be considered “severe.” Prior to August 25, 2020, the Veteran was afforded a VA examination for his back disability and associated neurologic manifestations in September 2016. In the September 2016 VA examination, the Veteran exhibited mild intermittent pain in both lower extremities with involvement of the sciatic nerve. The severity of both lower extremities was mild. Therefore, the preponderance of the evidence showed that the Veteran’s right lower extremity radiculopathy does not warrant a rating in excess of 10 percent prior to August 25, 2020. For the period since August 25, 2020, the Veteran has been rated 20 percent disabling for his right lower extremity and 10 percent disabling for his left lower extremity radiculopathy, pursuant to the August 2020 VA examination that ascertained an increased in the severity of the right lower extremity. Following the November 2019 Board remand, the Veteran was afforded VA examinations in August 2020 for his back and associated peripheral nerves conditions. The August 2020 VA examination for his back documented severe right lower extremity constant pain. There was no constant pain noted in the right lower extremity and involvement of the sciatic nerve in the right lower extremity as well. No radicular pain or signs of radiculopathy was noted in the left lower extremity. The examiner indicated the severity of the radiculopathy of the right lower extremity as mild and the severity of the left lower extremity was noted as unaffected. No other neurologic abnormalities or findings related to the back disability were found. The VA peripheral nerves conditions examination found Veteran to have severe constant pain in the right lower extremity and moderate incomplete paralysis of the right sciatic nerve. The Veteran reported his left leg sciatica had resolved and his left leg sciatic nerve upon examination was normal. In light of the above, a higher rating for the right lower extremity under DC 8620 is not warranted since August 25, 2020, because moderately severe incomplete paralysis and severe incomplete paralysis of the sciatic nerve were not shown. Therefore, the Board concludes that the evidence does not warrant a rating in excess of 20 percent from August 25, 2020, as the Veteran’s radicular symptoms do not rise to the level of moderately severe. Additionally, a higher rating in excess of 10 percent for the left lower extremity under DC 8720 is not warranted as the medical evidence from the August 2020 VA examination shows that the manifestations of the Veteran’s left lower extremity radiculopathy have been wholly sensory, and “mild” in nature at best. Moderate incomplete paralysis of the sciatic nerve has not not shown. Thus, a rating in excess of 10 percent for lower left extremity radiculopathy is not warranted under DC 8720. 6. Entitlement to a rating in excess of 20 percent for right shoulder strain 7. Entitlement to a rating in excess of 20 percent for left shoulder strain The Veteran contends that he is entitled to ratings in excess of 20 percent for his bilateral shoulder strain disabilities, evaluated under DC 5201. The Veteran is currently assigned 20 percent ratings for his left and right shoulder disabilities under 38 C.F.R. § 4.71a, DC 5201. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (DC 5200), limitation of motion of the arm (DC 5201), other impairment of the humerus (DC 5202), or impairment of the clavicle or scapula (DC 5203). Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, as the evidence shows that the Veteran is right-hand dominant, his left shoulder is his minor shoulder for rating purposes. A rating under DC 5201 is warranted when the evidence demonstrates limitation of motion of either arm at shoulder level, or midway between side and shoulder level of the minor arm (20 percent); limited to midway between side and shoulder level for the major arm, or to 25 degrees from the side for the minor arm (30 percent); or limitation of motion to 25 degrees from the side for the major arm. (40 percent schedular maximum) 38 C.F.R. § 4.71a, DC 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. The revised VA regulations, effective February 7, 2021, clarify that limitation of motion of the arm under DC 5201 includes either flexion or abduction. The revised regulations also clarify that “shoulder level” equates to flexion and/or abduction limited to 90 degrees, “midway between side and shoulder level” equates to flexion and/or abduction limited to 45 degrees, and “To 25 degrees from side” equates to flexion and/or abduction limited to 25 degrees from side. The Board finds that a rating in excess of 20 percent for the Veteran’s left shoulder and right shoulder disabilities is not warranted. In the September 2016 VA shoulders examination, the Veteran reported flare-ups while lifting his arms above shoulder level, with pain severity of 8/10; he reported these flare-ups occurred daily and he took pain medication and rested the shoulders for about an hour for the flare-ups to subside. Initial range of motion testing showed right shoulder flexion and abduction limited to 180 degrees, and left shoulder flexion and abduction limited to 180 degrees. The Veteran was not examined immediately after repetitive use over time nor was he tested during a flare-up. The Veteran was also afforded a VA examination post-remand to determine the current severity of his left and right shoulder disabilities in August 2020. The Veteran reported his shoulders feel overused/tired and he takes pain medication twice a week, resting his shoulders and laying down with arms over his stomach or straight along the side. The Veteran did not report flare-ups of the shoulders. The examination found that the range of motion of the right shoulder was 0 to 100 degrees flexion and 0 to 180 degrees abduction, while range of motion of the left shoulder was 0 to 105 degrees flexion and 0 to 180 degrees abduction. Range of motion for the shoulders contributed to a functional loss as Veteran was less able to rotate humeral head in the glenoid fossa. No pain was noted on examination and there was no objective evidence of localized tenderness or pain on palpation of either shoulder. Upon observed repetitive use testing with at least three repetitions, the right shoulder range of motion was 0 to 100 degrees flexion and 0 to 180 degrees abduction, while left shoulder range of motion was 0 to 110 degrees flexion and 0 to 180 degrees abduction. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time nor with flare-ups. The examiner also noted that the Veteran’s right and left shoulders did not have any ankylosis; dislocation, labral pathology suspected; loss of head; or malunion. The Veteran did have pain on the AC joint with active and passive adduction. See August 2020 VA Shoulders Examination. The Board finds the results of the medical evidence, to include the August 2020 VA examination report, to be highly probative. The medical evidence shows the Veteran’s left shoulder and right shoulder have limitation of motion at the shoulder level (flexion and abduction limited to 90 degrees). The Board thus finds that even given his pain and functional impairment during flare-ups, the limitation of motion of his left shoulder and right shoulder is no worse than shoulder level for either shoulder. As such, the Board finds that the Veteran’s right shoulder strain and left shoulder strain are adequately contemplated by the 20 percent criteria. Further, evaluation under DCs 5200, 5202, and 5203 are not appropriate as the examiner indicated that Veteran’s left and right shoulders did not have any ankylosis; dislocation, suspected labral pathology; clavicle scapula, acromioclavicular or sternoclavicular conditions suspected; loss of head; or malunion. Accordingly, the Board concludes that the preponderance of the evidence demonstrates that a rating in excess of 20 percent for Veteran’s right shoulder strain and left shoulder strain is not warranted, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 8. Entitlement to a rating in excess of 10 percent for degenerative arthritis and shin splints of the right knee 9. Entitlement to a rating in excess of 10 percent for degenerative arthritis and shin splints of the left knee The Veteran contends that he is entitled to ratings in excess of 10 percent for his service-connected left knee and right knee limitation of motion. The Veteran’s left knee and right knee limitation of motion is rated under DC 5260 for limitation of flexion. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. In the September 2016 VA knees examination, the Veteran reported shins pain that gets worse with flare-ups, the pain about 9/10 in severity. Veteran reported the flare-ups occurred daily, and it became difficult for him to walk around his home. Range of motion testing for the right knee showed flexion was noted at 0 to 140 degrees and extension 140 to 0 degrees, while the left knee flexion was noted at 0 to 140 degrees and extension 140 to 0 degrees. There was no evidence of pain on weight bearing, no objective evidence of localized tenderness or pain on palpation of either knee. The Veteran was able to perform repetitive use testing without additional functional loss or range of motion after three repetitions. The examination was not conducted during a flare-up. Veteran reported recurrent shin splints in both knees, but the conditions did not affect range of motion in the knees or ankles. See September 2016 VA Knees Examination. Post-remand, the Veteran was provided the VA examination in August 2020 for his bilateral knee disabilities. The Veteran was diagnosed with degenerative arthritis in both knees and shin splint; the Veteran denied having any current symptoms in his knees or lower legs. The Veteran did not report knee flare-ups and did not report having functional loss of the knees. Initial range of motion measurement upon examination showed right knee flexion was noted at 0 to 100 degrees and extension 100 to 0 degrees, and left knee flexion was noted at 0 to 110 degrees and extension 110 to 0 degrees, with no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight-bearing, and no evidence of crepitus. Observed repetitive use showed there was no additional loss of function after three repetitions for either knee. Pain, weakness, fatigability or incoordination was not found to significantly limit functional ability with repeated user over a period of time. No muscle atrophy and no ankylosis were noted. No history of recurrent subluxation or lateral instability was found in either knee. No joint instability was found upon testing. There was objective evidence of pain on passive range of motion testing for the left knee and no objective evidence of pain when the joints are used in non-weight bearing. The Board finds that the preponderance of the evidence is against a finding the Veteran is entitled to a rating in excess of 10 percent for limitation of motion for his left knee and right knee disabilities. Under DC 5260, to warrant a rating in excess of 10 percent, flexion must be limited to 30 degrees. At no time during the appeal period have the Veteran’s left knee and right knee been limited to more than 45 degrees flexion. A higher evaluation under DC 5260 of 20 percent is not warranted unless the record shows leg flexion which is limited to 30 degrees. Even considering the Veteran’s limitation of function during flare-ups, and after repetitive range of motion testing, and his reported functional limitations, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s left knee disability and right knee disability warrants an increased rating for limitation of motion. A rating in excess of 10 percent for the left knee and right knee is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.