Citation Nr: 21011911 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-10 137 DATE: March 3, 2021 ORDER The issue of entitlement to an initial rating in excess of 20 percent for radiculopathy, left upper extremity, is dismissed. Prior to May 14, 2014, a 20 percent rating, but no higher, for left shoulder impingement syndrome is granted. From May 14, 2014, an initial rating in excess of 20 percent for left shoulder impingement syndrome is denied. An initial rating in excess of 10 percent prior to May 14, 2014, and in excess of 20 percent thereafter, for cervical spine degenerative disc disease is denied. FINDINGS OF FACT 1. Prior to the promulgation of a Board decision, the Veteran withdrew the appeal seeking entitlement to an initial rating in excess of 20 percent for radiculopathy, left upper extremity. 2. Throughout the appeal period, the Veteran’s left shoulder impingement syndrome (which affects his minor extremity) has been characterized by pain with some limitation of motion, but not by limitation of motion of the arm to midway between the side and shoulder level. Ankylosis of the scapulohumeral articulation and impairment of the humerus have not been shown. 3. Prior to May 14, 2014, the Veteran’s cervical spine degenerative disc disease manifested with functional forward flexion of the cervical spine greater than 40 degrees and combined range of motion greater than 170 degrees but not greater than 235 degrees; forward flexion of the cervical spine of 30 degrees or less, combined range of motion of the cervical spine of 170 degrees or less, and muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis were not shown. 4. From May 14, 2014, the Veteran’s cervical spine disability has been characterized by forward flexion greater than 15 degrees but not greater than 30 degrees and combined range of motion greater than 170 degrees; ankylosis of the spine has not been shown. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to an initial rating in excess of 20 percent for radiculopathy, left upper extremity, by the appellant’s authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Prior to May 14, 2014, the criteria for an initial 20 percent rating, but no higher, for left shoulder impingement syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 3. From May 14, 2014, the criteria for a rating in excess of 20 percent for left shoulder impingement syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 4. The criteria for an initial rating in excess of 10 percent prior to May 14, 2014, and in excess of 20 percent thereafter, for cervical spine degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Air Force from January 1969 to July 1976 and from January 1991 to July 1991. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision. In July 2014, the Veteran testified before an RO Decision Review Officer (DRO). A transcript of the hearing is of record. In his March 2015 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge (VLJ). However, in March 2017 correspondence submitted to VA, the Veteran withdrew that request. In a November 2014 rating decision, the agency of original jurisdiction (AOJ) increased the rating for the Veteran’s service-connected left shoulder impingement syndrome to 10 percent prior to May 14, 2014, and 20 percent thereafter. It also increased the rating for his cervical spine degenerative disc disease to 20 percent effective May 14, 2014. In March 2019, the Board remanded the issues on appeal for further development, which has since been substantially completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Withdrawn Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In September 2020 correspondence, the Veteran, through his attorney, withdrew the claim for entitlement to an initial rating in excess of 20 percent for radiculopathy of the left upper extremity. As a result, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue. Accordingly, the Board does not have jurisdiction over it, and it is dismissed. Increased Initial Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims—a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, to the extent the diagnostic codes applicable in this appeal were affected by the amendments to 38 C.F.R. § 4.71a, the Board will consider the old rating 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. 1. Increased initial rating for left shoulder impingement syndrome The Veteran’s left shoulder impingement syndrome (hereinafter “left shoulder disability”) is currently rated as 10 percent disabling prior to May 14, 2014, and as 20 percent disabling thereafter, under 38 C.F.R. § 4.71a, DC 5201, limitation of motion of the arm. He asserts that he is entitled to a 20 percent rating prior to May 14, 2014. As will be explained, the Board finds that a 20 percent rating, but no higher, is warranted throughout the entire period on appeal. The Veteran is right-handed and, therefore, his left shoulder is the minor extremity. See February 2020 Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). Under Diagnostic Code 5201, limitation of motion of the minor arm at shoulder level warrants a 20 percent rating. Limitation of motion of the minor arm from midway between the side and shoulder level also warrants a 20 percent rating. Limitation of motion to 25 degrees from the side warrants a 30 percent rating. 38 C.F.R. § 4.71a. The amendments to 38 C.F.R. § 4.71a effective February 7, 2021 added language to Diagnostic Code 5201 that further defined the limitation of motion of the arm required for a 20 percent rating in terms of degrees. Specifically, amended Diagnostic Code 5201 provides that limitation of motion at shoulder level is defined as flexion and/or abduction limited to 90 degrees, and limitation of motion midway between the side and shoulder level is defined as flexion and/or abduction limited to 45 degrees. Turning first to the question of the Veteran’s entitlement to a 20 percent rating for his left shoulder disability prior to May 14, 2014, the evidence of record during that period includes an October 2012 private treatment report documenting left shoulder pain and less than full range of motion of the left arm; specifically, flexion of 150 degrees and abduction of 95 degrees. The AOJ increased the initial rating for the Veteran’s left shoulder disability to 10 percent prior to May 14, 2014 based on painful motion, pursuant to 38 C.F.R. § 4.59. However, the minimum compensable rating for limitation of motion of the minor arm under Diagnostic Code 5201 is 20 percent, not 10 percent. See Sowers v. McDonald, 27 Vet. App. 472, 482 (2016) (explaining that compensation for painful motion pursuant to 38 C.F.R. § 4.59 must be applied in the context of the applicable diagnostic code, which does not always have a 10 percent rating). Thus, based on the evidence of record, to include evidence of limitation of motion of the left arm that is painful but noncompensable, the Board finds that a 20 percent rating is warranted for the Veteran’s left shoulder disability prior to May 14, 2014. The Board does not find, however, that a rating higher than 20 percent is warranted for the Veteran’s left shoulder disability at any point during the period on appeal. Notably, the Veteran has primarily asserted entitlement to a 20 percent rating, only, for his left shoulder disability. In any event, to the extent he asserts that an even higher rating is warranted, at no point during the period on appeal has his left shoulder disability been manifested by limitation of motion of the arm to 25 degrees from his side. For example, during a May 2014 VA examination, his left shoulder flexion was 140 degrees and abduction was 90 degrees. There was no additional functional limitation on repetitive testing, and the Veteran denied flare-ups. During a February 2020 VA examination, the Veteran reported that he continued to have limited range of motion and pain radiating into his left shoulder. He reported no flare-ups and functional loss of restricted use above shoulder height. On examination, his left shoulder flexion was 110 degrees, abduction was 120 degrees, external rotation was 60 degrees, internal rotation was 80 degrees. The examiner noted that range of motion restricted use above shoulder height. The Veteran was able to perform repetitive testing with no additional functional loss. When considering whether a rating in excess of 20 percent is warranted, the Board has considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59. In this case, the Veteran has explained that he is limited in use of his arm above shoulder height on his left side. However, the Veteran has not asserted, nor does the evidence of record otherwise reflect, that his symptoms result in functional loss warranting an even higher rating. In short, even considering the Veteran’s subjectively reported symptoms and the functional loss caused by those symptoms, the overall disability picture created by his left shoulder symptomatology does not support a finding that the criteria associated with a 30 percent rating under Diagnostic Code 5201 are more closely approximated. See 38 C.F.R. §§ 4.40, 4.45, 4.71a. The Board further notes that there is no evidence that the Veteran has ankylosis of the scapulohumeral articulation or impairment of the humerus, such that Diagnostic Codes 5200 or 5202 would apply to his shoulder disability and possibly afford him a higher rating. 38 C.F.R. § 4.71a. For the foregoing reasons, a rating in excess of 20 percent for a left shoulder disability must be denied. In denying a higher 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. 2. Entitlement to initial ratings in excess of 10 percent prior to May 14, 2014, and in excess of 20 percent thereafter, for cervical spine degenerative disc disease The Veteran’s cervical spine degenerative disc disease (hereinafter, “neck disability”) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, and as relevant here, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical 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. Prior to May 14, 2014 After a review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s neck disability during the period prior to May 14, 2014. Specifically, the evidence does not document motion that more closely approximates forward flexion of the cervical spine of 30 degrees or less, or a combined range of motion of the cervical spine of 170 degrees or less during that period. For example, although the Veteran agreed during his 2014 DRO hearing that his forward flexion of the neck had been the same for “some extended period of time,” an October 2012 private examination included range of motion testing that revealed cervical flexion of 60 degrees, extension of 5 degrees, right lateral rotation of 45 degrees, left lateral rotation of 60 degrees, and right and left lateral flexion of 70 degrees, for a combined total of 240 degrees. The Board finds the objective measurements taken by the private clinician during the 2012 examination more probative with respect to the specific degrees of limitation of motion of the neck prior to May 14, 2014 than the Veteran’s July 2014 testimony in that regard. When considering the appropriate rating for this portion of the claim period, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, the Veteran has reported that his quality of life has diminished due to pain, discomfort, and inability to realize full range of motion of his neck. For example, he has explained that he has had to make adjustments during his daily life when performing various activities, including drinking out of a tall glass, putting in eye drops, using his computer, or exercising. See March 27, 2017 Appellate Brief (including statement by the Veteran). The Veteran has reported that, in general, he is no longer able to enjoy activities that might affect or aggravate his neck, such as overhead tennis serves, water skiing, amusement park rides, or roughhousing with his grandkids. Id. Further, he states that he is not able to do overhead activity at all. Id. The Veteran has also reported experiencing flare-ups of neck symptomatology—primarily pain—every eight to ten weeks. Id. He noted he must be careful climbing stairs during these episodes. While the Board has considered these credible reports of neck symptomatology, including the Veteran’s reports of the nature of his flare-ups, it does not find that the symptomatology results in additional functional loss that more closely approximates a 20 percent rating prior to May 14, 2014. In that regard, even assuming the flare-ups resulted in further reduced range of motion, the Board finds that their frequency, as described by the Veteran, does not warrant a higher overall rating prior to May 14, 2014. For all of the foregoing reasons, a rating higher than 10 percent for a neck disability for the period prior to May 14, 2014 is denied. From May 14, 2014 After a review of the evidence, the Board also finds that a rating in excess of 20 percent is not warranted for the period from May 14, 2014, forward. In that regard, during a May 2014 VA examination, range of motion testing revealed forward flexion of 30 degrees, extension of 25 degrees, right lateral flexion of 35 degrees, left lateral flexion of 30 degrees, and right and left lateral rotation of 55 degrees. Upon repetitive testing, no additional loss of motion was observed. The examiner noted functional loss of less movement than normal and pain on movement. With respect to flare-ups, the Veteran described pain in the posterior neck that went up over his head and reported taking Advil to treat it. In December 2019, the Veteran was afforded another VA examination. He reported persistent neck pain that radiated down to his left upper extremity and flare-ups that caused dull aches and burning. The examiner noted functional loss of limited extension of the neck. On examination, range of motion testing revealed flexion of 25 degrees, extension of 15 degrees, right lateral flexion of 30 degrees, left lateral flexion of 25 degrees, right lateral rotation of 50 degrees, and left lateral rotation of 40 degrees. The examiner also noted pain on examination, localized tenderness of the paravertebral muscles, and disturbance of locomotion. However, the Veteran was able to perform repetitive testing with no additional loss of function or range of motion. Guarding, muscle spasms, or atrophy were not shown. The examiner acknowledged the Veteran’s report of flare-ups but found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with the flare-ups. When considering the appropriate rating for this portion of the claim period, the Board has again considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). While the Veteran reported increased pain with repetitive testing at the May 2014 and December 2019 VA examinations, his range of motion did not result in forward flexion of the cervical spine to 15 degrees or less, nor was favorable ankylosis of the entire cervical spine shown at any point. Therefore, his demonstrated range of motion of the neck would not support a 30 percent rating. In finding that a higher rating is not warranted, the Board again acknowledges the Veteran’s descriptions of how his neck disability affects his daily activities and his reports of flare-ups. Overall, however, it does not appear that his symptoms result in additional functional loss so significant that it is not adequately contemplated by the 20 percent rating he currently receives during this period. With respect to flare-ups, for example, the Veteran has not indicated, nor does the record otherwise reflect, that the flare-ups cause ankylosis of the neck or further limit his forward flexion. Notably, the Veteran has characterized his primary limitation of motion as existing in extension and lateral rotation rather than flexion. See March 27, 2017 Appellate Brief (including statements by the Veteran noting that “fore is easier and usually without discomfort” and explaining that he generally turns his entire body when he needs to look to his sides). As forward flexion to 15 degrees or less or favorable ankylosis of the neck have not been demonstrated by the record, even considering the Veteran’s descriptions of functional loss and flare-ups, a rating in excess of 20 percent for a neck disability during the period from May 14, 2014 is not warranted. Additional Considerations For the entire period on appeal, consideration has also been given to the possibility of assigning a higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and, even assuming he did, the evidence of record does not document 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. Regarding neurological impairment, the Veteran has already been granted service connection for left upper extremity radiculopathy and, as explained above, he withdrew the issue of entitlement to an even higher rating for that disability. The lay and medical evidence of record is against a finding that he has any other neurological abnormality associated with his neck disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 10 percent for a neck disability prior to May 14, 2014, and in excess of 20 percent thereafter. In denying higher ratings, 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. L. STEPANICK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vample, Erica 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.