Citation Nr: 21025398 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-63 970 DATE: April 28, 2021 ORDER Service connection for right upper extremity neuropathy is denied. Service connection for left upper extremity neuropathy is denied. An increased rating, in excess of 10 percent prior to July 10, 2017, for degenerative disc disease of the thoracolumbar spine is denied. An increased rating of 20 percent, but no higher, from July 10, 2017 for degenerative disc disease of the thoracolumbar spine is granted. FINDINGS OF FACT 1. The Veteran’s right upper extremity neuropathy is not secondary to service-connected bilateral shoulder impingement, and is not otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had left upper extremity neuropathy at any time during or approximate to the pendency of the claim. 3. The Veteran’s degenerative disc disease manifests with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees from July 10, 2017 onwards. 4. The Veteran’s degenerative disc disease manifests with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees prior to July 10, 2017. CONCLUSIONS OF LAW 1. The criteria for service connection for left upper extremity neuropathy due to service or service-connected bilateral shoulder impingement are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for right upper extremity neuropathy due to service or service-connected bilateral shoulder impingement are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for a rating in excess of 10 percent prior to July 10, 2017, for degenerative disc disease of the thoracolumbar spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 4. The criteria for an increased rating of 20 percent, but no higher, from July 10, 2017 for degenerative disc disease of the thoracolumbar spine are 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 on active duty from September 1983 to November 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2015 and August 2017 rating decisions. In March 2020, the Veteran appeared before the undersigned Veterans Law Judge at a travel board hearing seated in Portland, Oregon. A transcript of the hearing has been associated with the electronic file. In a June 2020 decision, the Board remanded these matters for additional development. Of note, the AOJ was directed to inform the Veteran that he may submit his outstanding records related to the issues on appeal. In August 2020, the AOJ sent the Veteran a subsequent development letter asking for his private treatment records. See Subsequent Development Letter received 8/10/2020. To date, the Veteran has not submitted the requested information nor responded to the request. As such, the Board finds that the VA has met its duty to assist the Veteran in this regard since the duty to assist is not a one-way street. See Wood v. Derwinski,1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). Since the Board finds that the additional development has occurred and that there has been substantial compliance with the prior remand directives, these matters are ready for adjudication. Service Connection 1. Service connection for left upper extremity neuropathy is denied. 2. Service connection for right upper extremity neuropathy is denied. The Veteran contends that he has a left and right upper extremity condition that was caused by or aggravated by his service-connected bilateral shoulder impingement. See Hearing Transcript received 3/02/2020 at page 15. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by his service-connected bilateral shoulder impingement disability. Left Upper Extremity Neuropathy The Board concludes that the Veteran does not have a current diagnosis of left upper extremity neuropathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The October 2020 VA examiner opined that the Veteran’s does not have left upper extremity neuropathy. See C&P Exam received 1/11/2021 at page 3. At the October 2020 examination, the Veteran only endorsed symptoms of neuropathy with regard to his right upper extremity and not his left. See C&P Exam received 1/11/2021 at page 3. On physical examination, there was also no pain in his left upper extremity. Id. Diagnostic testing preformed only showed normal results with regard to his left upper extremity. Id. at page 10; see C&P Exam received 1/11/2021 at page 5 (reporting EMG/NCS results). The October 2020 examination findings are consistent with the July 2017 VA medical opinion which found no left upper extremity diagnosis on examination. See C&P Exam received 7/20/2017 at page 37. A review of the Veteran’s medical treatment records showed no diagnosis of left upper extremity neuropathy. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. However, in this case it is not applicable since the Veteran endorsed no pain with regard to his left upper extremity. See C&P Exam received 1/11/2021 at page 3.   At the March 2020 hearing, the Veteran testified that his current physician only suspects nerve damage but that he was waiting to schedule an appointment with neurology to confirm the suspicions. See Hearing Transcript received 3/02/2020 at page 13-15. As noted above, the Veteran has been provided an opportunity to submit such evidence to support this matter, but the record does not reflect that relevant evidence has been added. 38 U.S.C. § 5107(a). Although the Veteran believes that he has left upper extremity neuropathy, the Board finds the preponderance of the competent evidence is against that finding. Consequently, the Board gives more probative weight to the medical evidence of record, to include the 2017 and 2020 VA examination reports and 2020 diagnostic testing, that does not show a current diagnosis of left upper extremity neuropathy during the appeal period. Accordingly, service connection for left upper extremity neuropathy is denied. Right Upper Extremity Neuropathy The October 2020 VA examiner diagnosed the Veteran with right median nerve neuropathy. See C&P Exam received 1/11/2021 at page 3. In the medical history, the October 2020 VA examiner stated that the condition began in 2000 with tingling and numbness in the right hand, which was still present. Further, the right hand numbness and tingling has a functional impact since the Veteran, an electrician, is unable to use his hand tools effectively. Id. The October 2020 examiner opined that it was less likely than not the Veteran’s right upper extremity neuropathy was the result of his service-connected right shoulder impingement since the median nerve was wrist level and was possibly associated with carpal tunnel. See C&P Exam received 1/11/2021 at page 2. Since there is no evidence of neuropathy on a higher level than the wrist, pathologically his median nerve neuropathy cannot be related to his shoulder. Further, the October 2020 VA examiner found that there was no evidence of cervical radiculopathy. Id. The July 2017 VA examiner also found that the Veteran had no upper extremity diagnosis related to his service-connected impingement syndrome. See C&P Exam received 7/20/2017 at page 2. Although the Veteran was diagnosed with a median nerve neuropathy, the preponderance of the probative and competent evidence against a finding that it was caused by or aggravated by the Veteran’s service connected shoulder impingement since the medical evidence weighs against that finding and there is no medical evidence that links his median nerve neuropathy to his service connected shoulder impingement disability. The Board places weight on the July 2017 and October 2020 medical opinions as they were based on the Veteran’s relevant medical history, diagnostic testing, clinical examination, and contain a supporting rationale. Although, the Veteran believes that the pain in his right hand is related to his service-connected shoulder impingement, the issue is medically complex requiring interpretation of diagnostic material and medical knowledge of the body’s musculoskeletal and/or neurological systems to provide etiology. Thus, his lay assertions regarding the etiology lacks weight as they do not constitute competent evidence upon which service connection can be granted. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, service connection for right upper extremity neuropathy is denied since the preponderance of the evidence weighs against the claim. 38 U.S.C. § 5107(b). INCREASED RATINGS The Veteran’s degenerative disc disease of the thoracolumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. It is rated as 10 percent disabling from the grant of service connection December 10, 2014 and then it was increased to 20 percent from October 19, 2020. 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. Additionally, 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. Additionally, ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An increased rating, in excess of 10 percent prior to July 10, 2017, for degenerative disc disease of the thoracolumbar spine is denied. An increased rating of 20 percent, but no higher, from July 10, 2017 for degenerative disc disease of the thoracolumbar spine is granted. The Veteran contends that his degenerative disc disease of the thoracolumbar spine (back disability) is worse than its initial rating of 10 percent disabling. See NOD received 7/26/2016. While in remand status after the Board’s June 2020 remand, the RO granted an increased rating of 20 percent disabling effective, October 19, 2019, the date of the VA examination that made the finding. Accordingly, the issue on appeal is whether the Veteran is entitled to an initial rating in excess of 10 percent prior to October 19, 2019, and in excess of 20 percent thereafter. See AB v. Brown, 6 Vet. App. 35, 36 (1993) (holding that in an original or increased rating claim, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded). The Veteran was first provided a VA examination in July 2015. This examination report shows that the Veteran had initial range of motion (ROM) as follows: forward flexion 0 to 85 degrees; extension 0 to 28 degrees; right lateral flexion 0 to 20 degrees; left lateral flexion 0 to 22; right lateral rotation 0 to 30; and left lateral rotation 0 to 30 degrees. See C&P Exam received 9/01/2015 at page 4. With regard to functional limitations, the Veteran reported constant pain during a flare-up which happened any time he chopped wood, weeded his garden, and had to bend. Id. at 3. The Veteran stated that the flare up would last for days and would require him to take Vicodin and Meloxicam. At the time of the September 2015 examination, the Veteran did not use assistive devices, and his gait and spinal contour was normal. He did not have pain with weight bearing. There was no loss of function or range of motion after three repetitions. While the Veteran did have guarding or muscle spasm, it did not result in an abnormal gait or abnormal spine contour per the examiner. Given the findings of the September 2015 VA examination, the Board finds that the preponderance of the evidence is against a finding that he Veteran’s back disability warranted greater that a 10 percent rating prior to July 10, 2017, since the Veteran had forward flexion greater than 60 degrees and an overall ROM greater than 120 degrees. DC 5235 to 5243. Subsequently, the Veteran underwent a VA examination in July 2017. The Veteran had the following initial ROM measurements: forward flexion 0 to 40 degrees; extension 0 to 20 degrees; right lateral flexion 0 to 20 degrees; left lateral flexion 0 to 20; right lateral rotation 0 to 20; and left lateral rotation 0 to 20 degrees. See C&P Exam received 7/20/2017 at page 3. On repetitive testing, the July 2017 VA examiner stated that there was no additional loss of function or range of motion on repetitive testing. Id. The Veteran gait was normal, and he did not use assistive devices. The Board finds that given the July 2017 ROM findings, which showed forward flexion greater than 30 but less than 60 degrees, the Veteran is entitled to 20 percent rating for his back disability. The next-higher 40 percent rating is not warranted as the Veteran had forward flexion greater than 30 degrees, a combined range of motion of the thoracolumbar spine greater than 120 degrees, and no ankylosis of the spine. Accordingly, an increased rating to 20 percent, but no higher from July 10, 2017, for degenerative disc disease of the thoracolumbar spine is granted. DC 5235 to 5243. On remand, the Veteran had a VA examination in October 2020. His current symptoms were chronic dull pain and occasionally sharp flares. At the October 2020 VA examination, the Veteran had the following initial ROM measurements: forward flexion 0 to 60 degrees; extension 0 to 20 degrees; right lateral flexion 0 to 20 degrees; left lateral flexion 0 to 20; right lateral rotation 0 to 30; and left lateral rotation 0 to 30 degrees. See C&P Exam received 1/11/2021 at page 3. The Veteran had the following ROM measurements with repeated use: forward flexion 0 to 45 degrees; extension 0 to 15 degrees; right lateral flexion 0 to 15 degrees; left lateral flexion 0 to 15; right lateral rotation 0 to 20; and left lateral rotation 0 to 20 degrees. See C&P Exam received 1/11/2021 at page 4. The October 2020 VA examiner found that the same ROM would be applicable during a flare up. Id. Again, noted guarding or muscle spam, but the examiner found no abnormal gait or contour of the Veteran’s spine. However, the Veteran was now using a cane on occasion. The examination report reflect no ankylosis of the spine. Given that the October 2020 VA examiner’s findings were consistent in terms of ROM with the July 2017 VA examination, to include ROM above 30 degrees and combined ROM above 120 degrees, the Board finds the preponderance of the evidence is against a rating in excess of 20 percent since there is no evidence in the record of forward flexion less than 30 degrees or favorable ankylosis of the entire thoracolumbar spine. DC 5235 to 5243. Relatedly, the Board has considered the Veteran’s hearing testimony wherein he stated that he had a hard time tying his shoes and chopping wood. See Hearing Testimony received 3/2/2020 at page 6. However, the Board finds that his functional loss in those activities are contemplated by the 20 percent rating since it compensates the Veteran’s limited spine motion in regard to his forward flexion greater than 30 degrees but not greater than 60 degrees. In sum, the competent evidence of record, to include upon 2017 and 2020 VA examinations, does not reflect favorable ankylosis of the entire thoracolumbar spine nor forward flexion of the thoracolumbar spine of less than 31 degrees. As such, the preponderance of the probative and competent evidence is against a finding of a rating in excess of 20 percent disabling. 38 C.F.R. §§ 4.3, 4.7. Accordingly, a rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine is denied. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, Associate 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.