Citation Nr: 21023599 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-62 341 DATE: April 21, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to a rating in excess of 10 percent for a thoracolumbar sprain is denied. Entitlement to a rating in excess of 10 percent for a left ankle sprain is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) beginning March 30, 2017, is granted. FINDINGS OF FACT 1. The Veteran’s right shoulder disability did not manifest during active service, and there is no indication that his right shoulder disability is otherwise related to his active service; and right shoulder arthritis was not present to a compensable degree within one year of the Veteran’s separation from active service. 2. The Veteran’s thoracolumbar sprain has been productive of forward flexion to no worse than 85 degrees, and combined range of motion to no worse than 230 degrees. 3. The Veteran’s left ankle sprain was productive of painful motion without evidence of moderate limitation. 4. Beginning March 30, 2017, the Veteran had a combined rating of 80 percent with one disability rated 40 percent or higher, and his service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for an initial rating in excess of 10 percent for thoracolumbar sprain are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2020). 3. The criteria for a rating in excess of 10 percent for left ankle sprain have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2020). 4. The criteria for an effective date of March 30, 2017, but not earlier, for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2006 to July 2012, including in the Southwest Asia theater of operations. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs. In April 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2020, the Board remanded the Veteran’s claims for additional development. The case has now been returned to the Board for further appellate action. The TDIU claim was raised in conjunction with the claims for increased ratings which were received in March 2017. In an October 2020 rating decision, the TDIU claim was granted with an effective date of April 8, 2020. That was not a complete grant of the benefit sought on appeal. When a TDIU claim has been raised in connection with an underlying increased rating claim, VA must address entitlement to a TDIU for the entire period of the underlying increased rating claims. Service Connection – Right Shoulder The Veteran maintains that his right shoulder disability was incurred in or is otherwise related to his active service. During the April 2020 Board hearing, the Veteran stated that he initially injured his right shoulder during service while lifting weights, and that he continued to have right shoulder pain, which he treated on his own, until he became bedridden for a couple of days and tore something. The Veteran’s service treatment records are unremarkable for any complaints, treatment, or diagnoses related to the right shoulder. VA treatment records note ongoing complaints of right shoulder pain beginning in June 2016. During an October 2020 VA shoulder examination, the Veteran reported that he believes that he initially injured his right shoulder during active service during physical training while exercising with dumbbells. He denied treatment during service or since that time, but indicated that his shoulder has stayed the same and he manages the pain with over the counter medications and activity modification. The examiner diagnosed the Veteran with right rotator cuff tendonitis and opined that it was less likely than not incurred in or caused by service. The examiner’s rationale was that while he considered the Veteran’s subjective signs and symptoms of his right shoulder as well as his reported history related to his claimed right shoulder disability, the service treatment reports are negative for right shoulder injury or trauma and post service treatment reports do not reflect any work up related to the right shoulder. In this case, the Board finds the most probative evidence weighs against the claim. There is no evidence that his current right shoulder disability was incurred during active service and no evidence that it is otherwise etiologically related to his active service. The Veteran was not treated for any right shoulder complaints during service. After service, the first documentation of shoulder complaints occurred in 2006, six years after service discharge. In addition, the 2020 VA examiner opined that it was less likely than not that right rotator cuff tendonitis was incurred in or otherwise related to the Veteran’s service. The VA examiner based his opinion on the relevant medical evidence and lay statements, and he provided rationale for his opinion. Therefore, the Board finds that VA examiner’s opinion significantly probative. Furthermore, there is no medical opinion to the contrary. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced. However, the ultimate questions of diagnosis and etiology in this case extends beyond an immediately observable cause-and-effect relationship and are beyond the competence of lay witnesses. Additionally, there is no indication from the record that the Veteran has right shoulder arthritis. As such, presumptive service connection for a chronic disability is not warranted in this case. 38 C.F.R. § 3.309(a). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right shoulder disability is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating – Thoracolumbar Sprain The Veteran contends that his lumbar spine disability warrants a rating in excess of 10 percent. Specifically, at the Board hearing he testified that his back symptoms had increased in severity since his 2017 VA examination. VA outpatient treatment reports reveal that he reported back pain beginning in January 2017 and spine injections were recommended. X-rays of the thoracolumbar spine obtained in February 2017 revealed minimal degenerative changes. A magnetic resonance imaging (MRI) of the lumbar spine revealed mild degenerative joint disease and right foraminal annular tear associated with small disc protrusion at L5-S1. At a June 2017 VA spine examination, the Veteran reported lower right side back pain without numbness or tingling of the lower extremities. The Veteran reported flare-ups three times per month which can last varying amounts of time. He reported that he was barely able to get up and do activities such as use the restroom or fix a sandwich during flare-ups. The Veteran indicated that he was unable to roughhouse, play, exercise, or enjoy outdoor activities due to back pain. Range of motion testing revealed forward flexion to 85 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees each, and right and left lateral rotation to 30 degrees each. Pain was not noted on examination or with weight-bearing. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time or with flare-ups. There was no guarding or muscle spasm of the thoracolumbar spine. There was no radicular pain or any other signs or symptoms of radiculopathy, and there was no ankylosis of the spine. The Veteran ambulated without the use of assistive devices. X-rays of the lumbar spine revealed no appreciable degenerative bony changes. At an August 2020 VA spine examination, the Veteran reported increased back pain with occasional swelling. He noted that the pain was constant with intermittent stabbing pains with some movements and aching pain down the thighs. The Veteran denied flare-ups of the thoracolumbar spine. The Veteran reported that his thoracolumbar spine resulted in impairment in sleeping, running, shopping, prolonged sitting, standing, walking, lifting, moving things, swimming, bending getting dressed, hygiene, and household chores and maintenance. Range of motion testing revealed forward flexion to 90 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees each, and right and left lateral rotation to 30 degrees each. There was pain noted on examination and pain with weight-bearing. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner indicated that pain, fatigue, and lack or endurance limited functional ability with repeated use over a period of time and estimated that the Veteran’s range of motion with repeated use over time would result in forward flexion to 80 degrees, extension to 15 degrees, right lateral flexion to 30 degrees, left lateral flexion to 25 degrees, and right and left lateral flexion to 30 degrees each. There was no functional loss due to flare-ups. There was no guarding or muscle spasm of the thoracolumbar spine. There were no additional factors contributing to disability. There was no ankylosis of the spine or other neurologic abnormalities or findings related to the thoracolumbar spine. The examiner indicated that the Veteran has intervertebral disc syndrome (IVDS), but has not had any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past twelve months. The examiner indicated that the Veteran ambulated with the regular use of a brace. The examiner reported that there was objective evidence of pain when the spine was in non-weight bearing and the examiner indicated that it was not feasible to perform passive range of motion. The examiner diagnosed the Veteran with degenerative arthritis of the spine and intervertebral disc syndrome. At an October 2020 VA spine examination, the Veteran reported chronic back pain and muscle spasms. He reported random flare-ups of back pain. He noted that carrying heavy groceries up to his apartment can cause back pain. Range of motion testing revealed forward flexion to 90 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees each, and right and left lateral rotation to 30 degrees each. There was pain noted on forward flexion and extension which did not result in or cause functional loss. There was objective evidence of localized tenderness or pain to palpation of the joint or associated soft tissues of the thoracolumbar spine with no evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of function or range of motion. The examiner indicated that pain limited functional ability with repeated use over a period of time and estimated that the Veteran’s range of motion with repeated use over time would result in forward flexion to 80 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees each, and right and left lateral flexion to 30 degrees each. The examiner indicated that pain and lack or endurance limited functional ability during flare-ups and estimated that the Veteran’s range of motion during flare-ups would result in forward flexion to 70 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral flexion to 20 degrees each. There was no guarding or muscle spasm of the thoracolumbar spine. There were no additional factors contributing to disability. There was no ankylosis of the spine or other neurologic abnormalities or findings related to the thoracolumbar spine. As an initial matter, the Board notes that the Veteran was granted service connection for right and left lower extremity radiculopathy associated with the thoracolumbar strain in an October 2020 rating decision. He was assigned 10 percent ratings for each lower extremity and assigned an effective date of April 8, 2020. He did not appeal the rating or effective date assigned and as such the Veteran’s symptoms of radiculopathy will not be discussed in this decision. In this case, review of the evidence indicates that, at worst, forward flexion of the Veteran’s thoracolumbar spine was limited to 85 degrees and that the combined range of motion was limited to 230 degrees, which is consistent with a 10 percent rating under Diagnostic Code 5237. The evidence does not indicate that forward flexion was limited to 60 degrees or less, or that combined range of motion was limited to 120 degrees or less even after three repetitions as the Veteran’s range of motion was unchanged after three repetition at all of examinations of record. Therefore, although there is evidence of painful motion, in terms of functional impairment, the Board does not find that forward flexion has been limited to 60 degrees or less. Furthermore, the evidence does not indicate that the thoracolumbar spine disability results in muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. Therefore, a rating in excess of 10 percent is not warranted under Diagnostic Code 5237. The Board notes that the Veteran was diagnosed with IVDS; however, he has not had any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past twelve months to allow for a higher rating pursuant to the Formula for Rating IVDS. The Board has considered the effects of repeated use over time and flare-ups in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the evidence indicates that the Veteran had pain or localized tenderness on palpation with nonweight-bearing (at rest/non-movement), and pain with weight- bearing (active movement) on various examinations. The August 2020 and October 2020 VA examiners noted additional functional impairment with repeated use over time and noted some reduction in his range of motion of thoracolumbar spine, and the October 2020 VA examiner noted additional functional impairment during flare-ups and noted some reduction in his range of motion. However, even accounting for the reduction in motion, the Veteran did not have forward flexion limited to 60 degrees or less, or combined range of motion limited to 120 degrees or less, even after considering the additional limitation following repeated use over a period of time and during a flare-up. Therefore, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a rating in excess of 10 percent for the Veteran’s thoracolumbar spine disability. 38 C.F.R. § 4.71, Diagnostic Code 5237. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Rating – Left Ankle Sprain The Veteran contends that his left ankle disability warrants a rating in excess of 10 percent. Specifically, at the Board hearing he testified that he experienced weakness in his left ankle. He also stated that sometimes when going up or down stairs, his left ankle would give out and he would experience a pinch. At those times, he stated that he would see stars, feel like he was going to vomit, and feel like he was going to black out all at once. He also stated that sometimes his left ankle was fine. VA outpatient treatment reports reveal reports of chronic left ankle pain with no relevant clinical findings. At a June 2017 VA examination, the Veteran reported intermittent left ankle pain and he denied flare-ups of the ankle. He indicated that it hurts to stand or walk if he tries to push it too far. Range of motion testing of the left ankle was normal with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. The Veteran was able to perform three repetitions of motion with no additional loss of function or range of motion. There was no pain noted on examination and no evidence of pain with weight-bearing. There was tenderness to the anterolateral joint line and no objective evidence of crepitus. There were no other additional factors contributing to his left ankle disability. Muscle strength testing was normal and there was no ankylosis. There was laxity of the left ankle when compared to the right ankle. The Veteran did not use any assistive devices for locomotion. There was no evidence of pain on passive range of motion or when the joint is used in nonweight-bearing. X-rays of the left ankle were normal. The examiner diagnosed the Veteran with lateral collateral ligament sprain of the left ankle. At an August 2020 VA examination, the Veteran reported left ankle pain, but he denied seeking treatment for the ankle. He denied flare-ups of the ankle. He used a brace to support the left ankle. He indicated that the Veteran’s left ankle resulted in functional impairment in sleeping, running, shopping, prolonged sitting, standing, walking, lifting, moving things, swimming, bending, getting dressed, personal hygiene, household chores and maintenance, riding a bike, stairs, squatting, jumping, and high impact activities. He reported instability of the left ankle. Range of motion testing revealed dorsiflexion to 15 degrees and plantar flexion to 45 degrees with pain on dorsiflexion. There was pain with weight-bearing, but no crepitus. There was no additional loss of function or range of motion with three repetitions of motion. The examiner indicated that pain and lack of endurance would result in some functional loss with repeated use over time and estimated that dorsiflexion would be to 10 degrees and plantar flexion would be to 40 degrees. There was no additional functional loss during flare-ups. There was no ankylosis of the left ankle and joint stability testing was normal. X-rays did not reveal arthritis. The examiner diagnosed the Veteran with lateral collateral ligament sprain of the left ankle. At an October 2020 VA examination, the Veteran reported pain with prolonged standing and walking and instability of the left ankle. He reported flare-ups of the left ankle where he felt sharp pain in his left ankle that makes him nauseated or black out. The Veteran noted that on occasion his ankle hurt for no reason and other times it felt fine. Range of motion of the left ankle revealed dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was no pain noted on examination, but there was objective evidence of tenderness. There was no objective evidence of pain with weight-bearing and no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with three repetitions and no additional loss of function or range of motion. The examiner indicated that pain and lack of endurance would result in some functional loss with repeated use over time and estimated that dorsiflexion would be to 15 degrees and plantar flexion would be to 40 degrees. The examiner estimated that there would be no additional functional loss during flare-ups. There was no ankylosis of the left ankle and joint stability testing was normal. There was no objective evidence of pain on nonweight-bearing, passive motion was the same as active range of motion, and there was no objective evidence of pain on passive range of motion. X-rays did not reveal arthritis. The examiner diagnosed the Veteran with lateral collateral ligament sprain of the left ankle. Given the aforementioned evidence, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his left ankle disability. In this regard, there is no indication from the evidence of record indicating that the Veteran had limitation of motion in the left ankle that was more than moderate in severity. At worst, the Veteran has been shown to have left ankle dorsiflexion to 10 degrees, and left ankle plantar flexion to 40 degrees. Specifically, at the June 2017 VA examination, the Veteran had full range of motion of the left ankle, at the August 2020 VA examination the Veteran had 15 degrees of dorsiflexion and 45 degrees of plantar flexion, and at the October 2020 VA examination, the Veteran had full range of motion. The Veteran was able to perform repetitive use testing with no additional loss of motion or function. 38 C.F.R. § 4.40, 4.45 (2020). The Board has considered the effects of repeated use over time and flare-ups in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the evidence indicates that the Veteran had tenderness on palpation with nonweight-bearing (at rest/non-movement) and pain with weight-bearing (active movement) on various examinations, but no pain with nonweight-bearing. The August 2020 and October 2020 VA examiners noted additional functional impairment with repeated use over time and noted some reduction in his range of motion. However, even accounting for the reduction in motion, the Veteran did not have more than moderate loss of motion. Therefore, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a rating in excess of 10 percent for the Veteran’s left ankle disability. 38 C.F.R. § 4.71, Diagnostic Code 5271. Entitlement to a TDIU As noted, in an October 2020 rating decision, the TDIU claim was granted with an effective date of April 8, 2020. On March 30, 2017, the claims for increased ratings from which the TDIU arose were claimed. As the issue of entitlement to a TDIU in the context of an increased rating claim co-exists with the rating claim in terms of the time period under review, the effective date of a TDIU may be as early as the effective date applicable to the increased rating claim under 38 C.F.R. § 3.400(o). Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). As a preliminary matter, the Board notes that in assigning an effective date for the Veteran’s grant of a TDIU, the RO indicated that the assigned effective date was April 8, 2020, based on the Veteran’s intent to file a claim at his Board hearing. The RO also noted that a formal claim was filed within one year of this date. A review of the record shows that beginning March 30, 2017, the Veteran has been in receipt of a combined rating of 80 percent, with at least one disability rated at 40 percent or higher. As such, the Veteran meets the schedular criteria for assignment of a TDIU for the entire period on appeal. 38 C.F.R. § 4.16. The Veteran submitted a VA Form 21-8940 and indicated that he was precluded from obtaining or maintaining substantially gainful employment due to service-connected posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI), sleep apnea, back pain, bilateral hips, and ankle. He reported that he completed four years of high school and had no other education. He indicated that he made $500 per month working as an office cleaner and doing “piecework.” At a June 2017 VA spine examination, the Veteran indicated that his back pain prevents prolonged sitting and difficulty bending over to use a broom. The examiner indicated that the Veteran would require an ergonomic desk. At a June 2017 VA sleep apnea examination, the Veteran reported excessive daytime sleepiness. In a June 2020 statement, a VA psychiatric examiner noted that the Veteran was easily irritable, he had daily panic and depression, and that he was suspicious and easily upset while driving. He noted that he worked part-time, if anything, over the past four years. The examiner indicated that the Veteran’s symptoms interfere significantly with his ability to work. Of note, the Veteran had similar symptoms at a June 2017 VA psychiatric examination. At an August 2020 VA sleep apnea examination, the examiner indicated that the Veteran had difficulty getting through the due to fatigue from poor sleep. Of note, while the June 2017 VA examiner noted that the Veteran’s symptoms did not impact his ability to work, he had excessive fatigue and his symptomatology remained unchanged from the June 2017 to August 2020 examinations. A July 2020 statement from the Veteran’s former employer indicates that the Veteran worked cleaning their building from November 2016 to July 2020 when the business closed and was paid a rate of $500 per month. The Board finds that a close review of the evidence of record surrounding that time period prior to April 8, 2020, demonstrates that the Veteran’s service-connected disabilities were not substantially different or more severe than the period beginning April 8, 2020, and that such disabilities, did prevent the Veteran from obtaining and sustaining gainful employment in accordance with his education and industrial history. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to an effective date of March 30, 2017, for the grant of entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.