Citation Nr: 21013102 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-29 465 DATE: March 8, 2021 ORDER A disability rating in excess of 10 percent for lumbosacral strain, mild with spondylosis and mild disc degeneration at L2-L3 (lumbosacral strain) prior to April 28, 2019 is denied. A disability rating of 20 percent for lumbosacral strain, but no higher, for the period from April 28, 2019 is granted. A disability rating in excess of 10 percent prior to December 12, 2019 and in excess of 20 percent thereafter for right lower radiculopathy, sciatic nerve involvement, is denied. A disability rating in excess of 10 percent for left lower radiculopathy, sciatic nerve involvement, is denied. A disability rating in excess of 10 percent for right lower radiculopathy, femoral nerve involvement, is denied. A disability rating in excess of 10 percent for left lower radiculopathy, femoral nerve involvement, is denied. A disability rating in excess of 10 percent for shin splints, right leg is denied. A disability rating in excess of 10 percent for shin splints, left leg is denied. A disability rating in excess of 20 percent for right shoulder strain is denied. A compensable disability rating for allergic rhinitis is denied. A compensable disability rating for hypertension is denied. A compensable disability rating for tension headaches is denied. FINDINGS OF FACT 1. Prior to April 28, 2019, the Veteran’s lumbosacral strain was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding; incapacitating episodes have not been shown. 2. Since April 28, 2019, the impairment attributable to Veteran’s lumbosacral strain more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding; incapacitating episodes have not been shown 3. Prior to December 12, 2019, the Veteran’s right lower extremity radiculopathy, sciatic nerve involvement was manifest by no more than mild incomplete paralysis. 4. Beginning December 12, 2019, the Veteran’s right lower extremity radiculopathy, sciatic nerve involvement was manifest by no more than moderate incomplete paralysis 5. Throughout the appeals period, the Veteran’s right lower extremity radiculopathy, sciatic nerve involvement was manifest by no more than mild incomplete paralysis. 6. Throughout the appeals period, the Veteran’s right lower extremity radiculopathy, femoral nerve involvement was manifest by no more than mild incomplete paralysis. 7. Throughout the appeals period, the Veteran’s left lower extremity radiculopathy, femoral nerve involvement was manifest by no more than mild incomplete paralysis. 8. The Veteran’s shin splints, right leg, have not demonstrated moderate disability, are essentially manifested by symptoms of tenderness and pain, and have not required 12 consecutive months of treatment at any time over the appeals period. 9. The Veteran’s shin splints, left leg, have not demonstrated moderate disability, are essentially manifested by symptoms of tenderness and pain, and have not required 12 consecutive months of treatment at any time over the appeals period. 10. The Veteran’s right shoulder strain is not manifested by limitation of motion of the right major upper extremity to 45 degrees, or midway between the side and shoulder level. 11. The Veteran’s allergic rhinitis has not been productive of nasal polyps, greater than 50 percent obstruction of nasal passages on both sides, or complete obstruction on one side. 12. During the appeal period, the Veteran’s hypertension did not manifest in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more; the Veteran did not both have a history of diastolic pressure predominantly 100 or more and require continuous medication for control. 13. The Veteran’s migraines are not manifested by characteristic prostrating attacks averaging one in 2 months over the last several months. CONCLUSIONS OF LAW 1. Prior to April 28, 2019, the criteria for a rating in excess of 10 percent for lumbosacral strain, mild with spondylosis and mild disc degeneration at L2-L3 were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237-5243. 2. Since April 28, 2019, the criteria for a rating of 20 percent, but no higher, for lumbosacral strain, mild with spondylosis and mild disc degeneration at L2-L3 were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237-5243. 3. Prior to December 12, 2019, the criteria for a disability rating in excess of 10 percent for right lower radiculopathy, sciatic nerve involvement were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. Beginning December 12, 2019, the criteria for a disability rating in excess of 20 percent for right lower radiculopathy, sciatic nerve involvement were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for a disability rating in excess of 10 percent for left lower radiculopathy, sciatic nerve involvement are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. The criteria for a disability rating in excess of 10 for right lower radiculopathy, femoral nerve involvement are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 7. The criteria for a disability rating in excess of 10 for left lower radiculopathy, femoral nerve involvement, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 8. The criteria for a rating in excess of 10 percent for left shin splints are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5299-5262. 9. The criteria for a rating in excess of 10 percent for right shin splints are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5299-5262. 10. The criteria for a rating in excess of 20 percent for right shoulder strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 11. The criteria for an initial compensable rating for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522. 12. The criteria for a compensable rating for service-connected hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code 7101. 13. The criteria for a compensable rating for migraines are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to July 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions, dated in July 2012 and October 2013, issued by the Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in June 2019 for additional development. It is again before the Board for appellate review. Increased Rating Claims Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. 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). 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). VA examiners must 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). The spine has no opposite joint. 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. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 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. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claims for increased disability ratings for his service-connected musculoskeletal disabilities 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. Disability Rating - Lumbosacral Strain, Mild with Spondylosis and Mild Disc Degeneration at L2-L3 The Veteran contends that he is entitled to a higher rating for his lumbar spine disability. His lumbar spine disability was rated at a 10 percent evaluation prior to December 12, 2019, and 20 percent evaluation thereafter. The Veteran’s lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5243-5237. 38 C.F.R. § 4.71a. 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. See 38 C.F.R. § 4.27. Under the new criteria regulation, the criteria pertaining to rating disabilities of the spine were left unchanged. However, the new regulation that became effective February 7, 2021 specified that Diagnostic Code 5243 is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. In all other instances, disability rating 5242 was to be assigned. In the current case, the evidence reflect that the Veteran has disc herniation. In addition, the Veteran is separately service connected for radiculopathy, or nerve impingement, of the lower extremities. As such, a rating under Diagnostic Code 5243 is appropriate. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Diagnostic Code 5237 is rated under the General Formula. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS 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. Id. at Note 1. 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. Prior to April 28, 2019 The preponderance of the evidence is against a rating in excess of 10 percent for lumbosacral strain for the period prior to April 28, 2019. The Veteran was provided with a VA spine examination in October 2011. The Veteran reported pain localized to the lumbar aspect of his spine. He denied bowel or bladder dysfunction and flare-ups up his spine disability. Forward flexion was to 90 degrees or greater, with pain at 85 degrees. Extension was to 30 degrees or greater with pain at 25 degrees. Right and left lateral flexion and rotation were to 30 degrees each with no pain on movement. The Veteran was able to do repetitive movements with no additional functional limitation of movement. Functional loss was due to pain on movement, disturbance of locomotion, interference with sitting, standing and/or weight bearing. There was no guarding or muscle spasm of the back. A March 2013 private medical record shows that the Veteran’s forward flexion revealed pain beginning at 45 degrees with passive motion extending to 65 degrees. Private medical records showing treatment from January 2017 to October 2018 reflect that the Veteran had intermittent pain but was noted to have normal mobility and no kyphosis, scoliosis, or anatomic deformity. A March 2019 private medical record shows that the Veteran had 80 degrees of flexion, 35 degrees of extension, and 35 degrees of lateral flexion on the right and left. A higher evaluation is not warranted for lumbosacral strain based on incapacitating episodes. 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. The VA examiner specifically noted that the Veteran did not have incapacitating episodes. Moreover, VA and private medical records do not reflect that the Veteran’s lumbosacral strain resulted in prescribed bedrest. The preponderance of the evidence is also against a rating in excess of 10 percent for his lumbar strain under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain on movement, disturbance of locomotion, interference with sitting, standing and/or weight bearing. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of limitation of motion noted in the VA examination and private records would not result in limitation of motion more nearly approximating 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. Even in consideration of the Veteran’s March 2013 reports of pain at 45 degrees of flexion, the evidence does not show that his forward flexion was limited to 45 degrees. The examiner noted that the Veteran was able to flex further to 65 degrees. Pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. at 32. Physical examination of the Veteran during this period of the appeal indicated no additional limitation of motion due to weakness, fatigability, or incoordination. As such, a higher rating for additional limitation of motion is not warranted. See DeLuca v. Brown, 8 Vet. App. at 202. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. With regard to separate ratings for any neurological abnormalities associated with the Veteran’s service-connected back disability, the Veteran has already been assigned separate ratings for radiculopathy in his lower extremities. The record reflects that the Veteran did not have any bowel or bladder impairment or any other neurological abnormalities associated with the Veteran’s service-connected back disability during the period prior to April 28, 2019. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for lumbosacral strain. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Beginning April 28, 2019 The Board finds that, based on the evidence of record, the Veteran’s service-connected spine disability warrants a 20 percent disability rating beginning April 28, 2019. A July 2019 private medical record reflected the results of an examination of the Veteran’s spine conducted on April 28, 2019. This examination reflected that the Veteran experienced pain at 50 degrees of flexion and that factors contributing to his disability included excess fatigability, incoordination, pain on movement, swelling and issues with standing. The Veteran reported flare-ups of pain and functional loss when he was not able to perform any tasks due to his back disability and related radiculopathy. The Board finds that this report reflects an increase in the Veteran’s service-connected back disability such that a higher rating is warranted. While the examiner did not specify that the Veteran’s flexion was limited to 50 degrees, there is no indication in this record that he could flex his lumbar spine further. Moreover, the Veteran reported significant flare-ups at this visit causing him to be unable to do anything. As such, resolving all reasonable doubt in favor of the Veteran’s, the Board finds that his service-connected lumbar spine disability more closely approximates the criteria for a 20 percent disability rating beginning April 28, 2019. The Board has now assigned a 20 percent disability rating for lumbosacral strain beginning April 28, 2019. However, the preponderance of the evidence is against a rating in excess of 20 percent for lumbosacral strain for the period beginning April 28, 2019. The Veteran was provided with a VA examination in December 2019. Forward flexion was to 60 degrees. Extension was to 10 degrees. Right and left lateral flexion and rotation were to 25 degrees each with pain on movement. Pain was noted on examination but did not cause functional loss. There was no pain on weight bearing and no further limitation of motion after repetitive movements. With repeated use over time and flare-up, there was additional functional loss due to pain, fatigue, and lack of endurance. The examiner estimated the loss in range of motion to forward flexion to 50 degrees, extension to 10 degrees and right and left lateral flexion and rotation to 20 degrees each with pain on movement. There was no muscle spasm or guarding and no incapacitating episodes. The preponderance of the evidence is against a rating in excess of 20 percent for lumbosacral strain based on incapacitating episodes. 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. The December 2019 VA examiner specifically noted that the Veteran did not have incapacitating episodes. Moreover, VA and private medical records do reflect that the Veteran’s lumbosacral strain resulted in prescribed bedrest. The preponderance of the evidence is also against a rating in excess of 20 percent for lumbosacral strain under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to excess fatigability, incoordination, pain on movement, swelling. However, the limitation of motion reflected in the record since April 28, 2019 would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. With regard to separate ratings for any neurological abnormalities associated with the Veteran’s service-connected back disability, the Veteran has already been assigned separate ratings for radiculopathy in his lower extremities. The record reflects that the Veteran did not have any bowel or bladder impairment, or any other neurological abnormalities associated with the Veteran’s service-connected back disability during the period since December 12, 2019. Based on the foregoing, the preponderance of the evidence is against of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for pain, fatigue, and lack of endurance. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Disability ratings - Right and Left Lower Radiculopathy, Sciatic and Femoral Nerve Involvement The Veteran’s service-connected radiculopathy with sciatic nerve involvement has been rated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). The Veteran’s radiculopathy with sciatic nerve involvement in both lower extremities were initially assigned 10 percent ratings each. The rating for his right lower extremity was increased to 20 percent beginning December 12, 2019. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8626, 8726). The Veteran’s radiculopathy with femoral nerve involvement in both lower extremities have been rated at a 10 percent rating throughout the appeals period. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated at as 40 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Veteran was provided with VA examinations in October 2011 and December 2019. At his October 2011 VA examination, the Veteran’s muscle strength, sensory and reflex examinations were normal. Straight leg raising tests were negative. At his December 2019 examination, the Veteran’s left lower extremity did not exhibit any symptoms, including pain, paresthesias or dysesthesias, or numbness. muscle strength, sensory and reflex examinations were normal. His right lower extremity did exhibit moderate intermittent pain, paresthesias or dysesthesias, or numbness. The examiner diagnosed moderate radiculopathy of the sciatic nerve. VA and private medical records show similar findings, with ongoing pain and discomfort. Private medical records from the American Spine and Orthopaedic Institute show that the Veteran was assessed in February 2019. At that time, strength testing was normal in the left quadriceps, iliopsoas, hamstrings, foot inverters and everters, extensor hallucis longus and tibialis anterior. Strength in the hip abductors and adductors and right quadriceps was 3/5. Private medical records reflecting treatment from Central Florida Pain Relief Centers show that, in February 2019, the Veteran’s strength was 5/5 in his bilateral hip flexion, knee extension, and ankle dorsiflexion. March and April 2019 records show that the Veteran was able to heel-and-toe-walk normally. Muscle tone in his lower extremities was normal. With regard to the Veteran’s left lower extremity, higher ratings for radiculopathy with sciatic involvement and femoral involvement are not warranted at any time over the appeals period. The evidence shows that the Veteran’s motor and sensory functions were normal. He had normal reflexes and no evidence of trophic changes. The Veteran did report pain that, at times, radiated into the left lower extremity. However, the level of pain did not approximate a moderate rating. significantly, at his December 2019 examination, the examiner did not note intermittent or constant pain with regard to the left lower extremity. While the Veteran’s strength in his hip abductors and adductors was diminished in February 2019, private medical records also reflected normal strength in his bilateral hip flexion, knee extension, and ankle dorsiflexion. March and April 2019 records reflected normal muscle tone in his lower extremities. There was no evidence of complete paralysis of the left lower extremity. Regarding the right lower extremity, the evidence does not support higher ratings for radiculopathy with sciatic involvement and femoral involvement prior to December 12, 2019. During this time, muscle strength, sensory and reflex examinations were normal. Straight leg raising tests were negative. While the February 2019 private medical records from the American Spine and Orthopaedic Institute reflected diminished strength for hip abductors and adductors and right quadriceps, records from the Central Florida Pain Relief Centers reflect normal strength in the lower extremities during the same time frame. These records also reflect that the Veteran’s muscle tone in his lower extremities was normal. As such, overall, the evidence of record does not show that a rating commensurate with moderate impairment is warranted. The December 12, 2019 examiner found that the Veteran had moderate radiculopathy of the sciatic nerve on the right. As such, a rating for moderate impairment of this nerve was assigned. However, the evidence does not support a higher rating for radiculopathy of the right lower extremity with sciatic involvement. In addition, the record does not reflect that the Veteran’s radiculopathy of the femoral nerve on the left has resulted in moderate impairment since December 12, 2019. There is no evidence to support a finding of complete paralysis such as to award a higher rating for radiculopathy of the right lower extremity with sciatic or femoral involvement. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the preponderance of the evidence is against the Veteran’s claim for higher ratings. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Disability Ratings - Shin Splints, Left and Right Legs The Veteran contends that he is entitled to higher ratings for his left and right shin splints. The Veteran’s shin splints are rated at a 10 percent disability rating under Diagnostic Codes 5299-5262. 38 C.F.R. § 4.71a. Prior to February 7, 2021, there was no diagnostic code specifically applicable to shin splints. Instead, the disability was rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be 99 for all unlisted conditions, in this case 5299 for miscellaneous injury. See 38 C.F.R. § 4.27. Prior to February 7, 2021, under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Marked” means having a distinctive or emphasized character. Under the new rating criteria, effective February 7, 2021, Diagnostic Code 5262 pertains to medial tibial stress syndrome (MTSS), or shin splints. The current Diagnostic Code 5262 provides that a 10 percent disability rating would be warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities, a 20 percent disability rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, a 30 percent rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right or left shin splints under the old and new rating criteria. The Veteran was provided with VA examinations in October 2011 and December 2019. In October 2011, he reported tenderness over the bilateral tibias. Pain was made worse by prolonged standing, walking, running and other physical activity. He denied flare-ups. Functional loss was due to interference with sitting, standing and weight bearing. Strength and stability were normal. Flexion was to 135 degrees and extension to 0 degrees in both knees. There was no pain on movement and no change after repetitive movement. At his December 2019 examination, the Veteran reported ongoing tenderness of the tibial area on both sides. He had no flare-ups of the condition. Knee and ankle ranges of motion on both sides were all normal. The examiner noted that the Veteran’s service-connected shin splints did not affect range of motion on either side. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to interference with sitting, standing and weight bearing. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of limitation reflected by the evidence would not result in symptoms more nearly approximating malunion of the tibia or fibula with moderate knee or ankle disability. In addition, the evidence does not reflect that the Veteran’s shin splints on the right or left required treatment for 12 consecutive months. The Veteran’s shin splints are essentially manifested by symptoms of tenderness and pain. Based on the above, ratings in excess of 10 percent for right and left shin splints are not warranted as the evidence does not show impairment that approximates malunion with slight, moderate, or marked ankle disability. On December 2019 examination, the examiner found that the Veteran's shin splints did not affect range of motion of the knee or ankle. In conclusion, the preponderance of the evidence is against the Veteran’s claim for ratings in excess of 10 percent for right and left shin splints. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Disability Rating - Right Shoulder Strain The Veteran contends that he is entitled to a higher rating for his service-connected right shoulder disability. The Veteran’s right shoulder disability 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). Under Diagnostic Code 5201 effective February 7, 2021, for the dominant arm, a 20 percent rating is warranted for limitation of flexion and abduction limited to 90 degrees or to shoulder level, a 30 percent rating is warranted for limitation flexion and/or abduction limited to 45 degrees or midway between side and shoulder level, and a 40 percent disability rating is warranted for limitation of flexion and/or abduction to 25 degrees from his side. 38 C.F.R. § 4.71a. The preponderance of the evidence is against a rating in excess of 20 percent for right shoulder strain under the previous and current rating criteria. The evidence of record shows that the Veteran is right-handed. See October 2011, September 2019 VA examination reports. At his October 2011 VA examination, the Veteran reported difficulty lifting and reaching over head. He denied flareups. Flexion as to 180 degree with no pain, and abduction was to 120 degrees with pain at 100 degrees. There was no additional limitation of function or motion after repetitive movement. Functional loss was due to less movement than normal, excess fatigability, and pain on movement. There was no guarding on examination. The Veteran had normal strength, no ankylosis, and no recurrent dislocations. The Veteran was provided with a VA examination in December 2019. The Veteran reported constant dull pain with sharp pain with some movements. He indicated that he tried to avoid heavy lifting over his head and sleeping on it. Flexion and abduction were to 140 degrees each. Pain was noted on examination, but it did not result in functional limitation. There was no additional loss of function or range of motion after three repetitive movements and no pain on passive motion. The examiner noted that the Veteran did have functional loss as a result of pain, fatigue, and lack of endurance. He estimated that, during a flare-up or a following repetitive movement over time, flexion and abduction of the right shoulder would remain the same. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, fatigue, and lack of endurance. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the evidence of record would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 45 degrees from the side of the major extremity. 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 preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for right shoulder strain. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Disability Rating - Allergic Rhinitis The Veteran’s disability is rated under 38 C.F.R. § 4.97, Diagnostic Code 6522. Under Diagnostic Code 6522, a 10 percent rating is warranted without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted with polyps. The Veteran underwent VA examinations in October 2011 and December 2019. These examiners both expressly found that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. Nor did he have polyps. Review of the private medical records from the appeals period does not indicate the presence of any of the above symptoms. The criteria for a compensable rating for allergic rhinitis are not met. In conclusion, the preponderance of the evidence is against the Veteran’s appeal for a compensable rating for rhinitis. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Disability Rating – Hypertension The Veteran contends that he is entitled to a higher rating for hypertension. Hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. The term “predominant” is not defined in the rating criteria. Merriam-Webster defines predominant to mean “being most frequent or common.” See, e.g., “predominant,” Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. For the reasons that follow, the Veteran’s hypertension has not more nearly approximated the criteria corresponding to a 10 percent rating. The Veteran was provided with VA examinations in October 2011 and December 2019. At his October 2011 examination, the Veteran reported that he had borderline high blood pressure and had never been on medication for it. He did not monitor his blood pressure. The examiner opined that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. At his examination his blood pressure was 140/80 on three tests during the examination. At his December 2018 examination, the Veteran reported that he was not on medication to ret his hypertension. The examiner noted that the Veteran had a history of a diastolic blood pressure elevation to 100 or more in April 2019, when his blood pressure was 145/100. The examiner noted blood pressure readings of 126/88 in February 2019 and 130/90 in July 2016. A thorough review of the Veteran’s VA and private medical records reveals a few instances when the Veteran had blood pressure readings that included diastolic pressure 100 or more, systolic pressure 160 or more. In May 2019, the Veteran had a blood pressure reading of 177/122, in April 2019 the Veteran had a blood pressure reading of 183/113. However, the Veteran’s blood pressure readings predominantly reflected diastolic readings of less than 100 and systolic reading of less than 160. In addition, these records did not reflect a history of diastolic pressure predominantly 100 or more or that the Veteran require continuous medication for control. Accordingly, the Veteran’s hypertension did not manifest in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. Also, the Veteran did not have a history of diastolic pressure predominantly 100 or more and require continuous medication for control. There is no reasonable doubt to be resolved. The Veteran’s hypertension does not more nearly approximate the criteria corresponding to a 10 percent rating. As the criteria for a 10 percent rating under DC 7101 are not met, a noncompensable rating is warranted. See 38 C.F.R. § 4.31. Disability Rating - Tension Headaches The Veteran contends that he is entitled to a higher rating for his tension headaches. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The Veteran was provided with a VA examination in October 2011. He reported headache episodes that occurred three to four times per year lasted for several weeks. He did not take any medications for headaches and did not have any recent medical treatment. During his headaches, he experienced sensitivity to sound. The examiner noted that the Veteran had prostrating attacks of migraine headache pain less than once every two months. He was also provided with a VA examination in December 2019. The Veteran reported that sometimes he would experience one headache per week, but then would go three to four weeks without a headache. While experiencing a headache he had phonophobia, photophobia, and minimal nausea. His headaches lasted less than one day. His headache was improved by getting out of the light, using a cold rag on his head, and staying in a quiet room. The examiner found that the Veteran did not experience characteristic prostrating attacks of migraine or non-migraine headache pain. The Veteran’s migraines have occurred with less frequent attacks during the appeal period, corresponding to the criteria for a noncompensable rating under Diagnostic Code 8100. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has credibly reported his symptoms. However, even with the symptoms reported by the Veteran, his impairment did not approximate the criteria for a compensable disability rating. Accordingly, the Veteran’s migraine headaches occurred with less frequent attacks throughout the appeal period, corresponding to the criteria for a noncompensable rating under Diagnostic Code 8100. A compensable rating under Diagnostic Code 8100 is not warranted. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.