Citation Nr: 21028266 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 10-16 865 DATE: May 10, 2021 ORDER Service connection for blood clots is denied. An initial rating in excess of 30 percent for ankylosis of the left ankle, status post screw fixation of the calcaneus, talus, and cuboid with arthrodesis/fixation of the cuneiforms and navicular bone with the first, second, and third metatarsal bases (left ankle disability) is denied. An initial rating in excess of 20 percent for ankylosis of the left foot, status post screw fixation of the calcaneus, talus, and cuboid with arthrodesis/fixation of the cuneiforms and navicular bone with the first, second, and third metatarsal bases, and peroneal nerve damage (left foot disability) is denied. An initial rating in excess of 10 percent for left peroneal nerve damage is denied. An initial rating in excess of 20 percent for degenerative joint disease, left shoulder is denied. An initial rating in excess of 10 percent prior to December 30, 2019 for degenerative joint disease of the cervical spine is denied. Entitlement to a rating in excess of 20 percent effective December 30, 2019 for degenerative joint disease of the cervical spine is denied. An initial rating in excess of 10 percent for hypertension is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had blood clots at any time during or approximate to the pendency of the claim. 2. The Veteran's left ankle disability is not manifested by ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 3. The Veteran's left foot disability is not manifested by severe symptoms. 4. The Veteran's left peroneal nerve damage is manifested by no more than moderate incomplete paralysis of the anterior tibial nerve (deep peroneal). 5. Prior to December 30, 2019, the Veteran's degenerative joint disease, cervical spine was not manifested by forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; combined range of motion of the cervical spine not greater than 170 degrees; muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. 6. Effective December 30, 2019, the Veteran's degenerative joint disease, cervical spine is not manifested by forward flexion of the cervical spine 15 degrees or less; favorable ankylosis of the entire cervical spine; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. 7. The Veteran's left shoulder (minor arm) disability is not manifested by arm motion limited to 25 degrees from the side. 8. The Veteran's hypertension is not manifested by diastolic pressures that are predominantly 110 or more, or systolic pressures predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for service connection for blood clots are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial disability evaluation in excess of 30 percent for the Veteran's service-connected left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 5270. 3. The criteria for an initial disability evaluation in excess of 20 percent for the Veteran's service-connected left foot disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 5284. 4. The criteria for an initial disability evaluation in excess of 10 percent for the Veteran's service-connected left peroneal nerve damage have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 8523. 5. Prior to December 30, 2019, the criteria for an initial disability evaluation in excess of 10 percent for the Veteran's service-connected degenerative joint disease of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243. 6. Effective December 30, 2019, the criteria for a disability evaluation in excess of 20 percent for the Veteran's service-connected degenerative joint disease of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243. 7. The criteria for an initial disability evaluation in excess of 20 percent for the Veteran's service-connected degenerative joint disease, left shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 5201. 8. The criteria for an initial disability evaluation in excess of 10 percent for the Veteran's service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to November 1976, October 1978 to September 1980, and July 2006 to April 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in March 2018 for further development, which was completed. The Board's March 2018 Remand included a remand of the issues of entitlement to service connection for hearing loss and tinnitus. The RO granted service connection for hearing loss and tinnitus by way of a November 2019 rating decision. The grant of service connection constitutes a complete grant of the claims. Consequently, the Board does not have jurisdiction over them. Service connection for blood clots is denied. The Veteran contends that he suffers from blood clots that are related to service. Alternatively, he contends that that they are secondary to his service connected left shoulder disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of blood clots 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 Veteran underwent a VA examination in April 2009. He reported that after he had a staph infection in his left foot in June 2007, he had a PICC line in the left arm that broke and caused blood clots to form throughout his entire left upper extremity. He stated that he had swelling of the left arm extending up the left side of his neck and into his face. He reported that he was on Coumadin for six months. He stated that when the PICC was placed into his right arm, it broke again and caused blood clots in his right arm. He stated that the physicians caught it in time and so he did not suffer as many complications in the right arm as he did in his left. He stated that he no longer has any swelling and that he is no longer on Coumadin. He denied any current symptoms or treatment. No diagnosis was made at the time of the examination. Pursuant to the Board's March 2018 Remand, the Veteran underwent another VA examination in August 2019. He reported a substantially similar medical history. He also stated that his blood clot is better. He stated that he had a deep vein thrombosis in 2012. He further stated that he was on blood thinner for four months. He denied any current medication for a blood clot disorder. He also denied any current symptoms. Upon examination, the examiner found that the Veteran did not have anemia or thrombocytopenia; leukemia, multiple myeloma, agranulocytosis, essential thrombocythemia, primary myelofibrosis, or myelodysplastic syndrome; polycythemia vera; or sickle cell anemia. The Veteran did not have any pertinent physical findings, complications, conditions, signs and/or symptoms related to any of the aforementioned diagnoses. The examiner found that there is insufficient objective evidence to support the Veteran's claim of a blood related disability. No diagnosis was warranted. The Board notes that post service treatment reports fail to reflect any diagnosis of or treatment for blood clots. While the Veteran believes that he has a current diagnosis of blood clots, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires knowledge of pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against entitlement to service connection for blood clots; the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. INCREASED RATING Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). VA examinations with respect to the issues on appeal were also obtained. 38 C.F.R. § 3.159 (c)(4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the VA examinations obtained in this case are more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claims to be adjudicated. With specific regard to the Veteran's musculoskeletal examinations, to the extent that any of these examinations failed to specifically address limitation of motion due to weightbearing or during periods of a flare-up, the Board is able to assess the level of limitation from such episodes through the Veteran's own statements of how his disabilities on a day-to-day basis. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Finally, regarding the increased rating claims for the Veteran's musculoskeletal conditions, when determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Sharp, supra. An initial rating in excess of 30 percent for a left ankle disability is denied. The Veteran's service-connected left ankle disability has been rated by the RO under the provisions of Diagnostic Code (DC) 5270. Under DC 5270, a maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. A 30 percent rating is warranted for ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. A 20 percent rating is warranted for dorsiflexion in plantar flexion, less than 30 degrees. 38 C.F.R. § 4.71a, DC 5270. The Veteran underwent a VA general medical examination in April 2009 at which time he was diagnosed with ankylosis of the left foot and ankle following screw fixation of the calcaneus, talus, and cuboid with arthrodesis/fixation of the cuneiforms and navicular bone with the first, second, and third metatarsal bases. There was swelling, deformity, scarring, and hyperpigmentation of the entire foot, and the ankle was fused. Active range of flexion and dorsiflexion was 0-0, with constant pain. The Veteran underwent another VA general medical examination in December 2010. He stated that his left ankle was significantly worse than it was at his April 2009 VA examination. He stated that the ankle had persistent swelling, constant pain, color changes, and numbness. His diagnosis remained the same. There was no indication that the ankylosis was in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. The Veteran underwent a third VA examination in December 2019. He once again reported that his ankle was significantly worse than before, with persistent swelling, constant pain, color changes, and numbness. He reported a baseline pain of 6/10, with pain increasing to 10/10 during a flare-up. Functional loss includes difficulty with standing, walking, driving, and climbing stairs. The Veteran achieved dorsiflexion from 0-15 degrees, and plantar flexion from 0-40 degrees. There was pain noted on examination on rest/non-movement. There was also pain with weight bearing, although it did not result in additional loss of motion. The examiner opined that following repetitive use over time, dorsiflexion would be limited to 10 degrees, and plantar flexion would be limited to 30 degrees. The examiner opined that during a flare-up, dorsiflexion would be limited to 10 degrees, and plantar flexion would be limited to 25 degrees. Muscle strength testing revealed 4/5 strength in dorsiflexion and plantar flexion. The examiner found that there was not complete immobilization of the Veteran's ankle. Consequently, the Veteran did not meet the VA diagnostic criteria for ankylosis. The Veteran did not use assistive devices as a normal mode of locomotion. The examiner stated that the Veteran has moderately severe difficulty with activities involving running, jumping, and climbing. As noted above, the Veteran's left ankle disability is rated as 30 percent disabling. For an increased rating to be warranted, the Veteran's left ankle disability must be manifested by ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. None of the VA examiners have found that these criteria are met. The April 2009 VA examiner found that the Veteran's ankle was ankylosed, with dorsiflexion and plantar flexion being limited to 0 degrees. The Board notes that ankylosis in plantar flexion less than 30 degrees warrants a rating of 20 percent. Notwithstanding, the RO has granted him a 30 percent rating. The December 2010 VA examiner continued the diagnosis of ankylosis but did not state at what degree in plantar flexion or dorsiflexion the ankylosis occurred. Finally, the December 2019 VA examiner found that the Veteran's left ankle was not ankylosed. Instead, he found that the Veteran had limited range of motion (0-15 degrees of dorsiflexion, and 0-40 degrees of plantar flexion). The range of motion was further limited following repeated use over time and with flare-ups. However, the Veteran's disability was not manifested by ankylosis. In the absence of ankylosis, the disability would be more appropriately rated under Diagnostic Codes 5271-5274. The maximum rating under these Diagnostic Codes is 20 percent. Once again, the RO has granted a 30 percent rating notwithstanding. In the absence of any finding that the Veteran's disability is manifested by ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, including when 38 C.F.R. §§ 4.40, 4.45, and DeLuca, Sharp and Correia are considered, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against the assignment of an initial rating in excess of 30 percent; the benefit of the doubt doctrine does not apply; and the claim must be denied. An initial rating in excess of 20 percent for left foot disability is denied. In its October 2009 rating decision, the RO granted service connection for the Veteran's left foot disability. It assigned a 20 percent rating effective April 20, 2009 (the day following the last day of active duty service). It also granted service connection and a separate 10 percent rating for left peroneal nerve damage as secondary to the Veteran's left foot disability. In a November 2019 rating decision, the RO continued the 20 percent rating. The Veteran's service-connected left foot disability has been rated by the RO under the provisions of Diagnostic Code 5284. Under this regulatory provision, a rating of 10 percent is warranted for a moderate foot injury. A rating of 20 percent is warranted for a moderately severe foot injury. A rating of 30 percent is warranted for a severe foot injury. The Veteran underwent a VA examination in April 2009. He reported that he had constant pain in his foot. During the examination, he periodically stopped talking, gasped, and closed his eyes until a left foot spasm passed. He reported pain, weakness, stiffness, swelling, heat, redness, fatigability, and lack of endurance. He reported severe flare-ups on a daily basis, which last for hours after being on his feet for too long. He reported that he could not walk during flare-ups. He stated that he intended to return to work as an iron worker, but he did not see how he would be able to work. The examiner noted that he walked with a single point cane. The examiner stated that the functional limitations are that the Veteran could only stand for 60 minutes and walk a few yards. The examiner noted that there was 3-4+ pitting edema of the foot, and the ankle and foot were fused. There was weakness, but no instability. There was tenderness with palpation of the foot. He was wearing new shoes without much wear. The examiner noted that he could not tighten the laces due to swelling. There was no loss of arching. The Veteran underwent a VA examination in December 2019. The Veteran reported that his disability had gotten worse since his April 2009 examination. He reported a baseline pain of 5/10, with pain during flare-ups reaching 10/10. He stated that he had "left foot pain all the time, aggravated by weight bearing." He reported experiencing flare-ups when walking or standing for too long. He reported functional impairment in that he had difficulty running, standing, and driving for long distances. The examiner diagnosed the Veteran with left foot status-post screw fixation of the calcaneus, talus, and cuboid with arthrodesis/fixation of the cuneiforms and navicular bone with the first, second, and third metatarsal base. The examiner opined that this constituted a moderately severe foot injury. The foot chronically compromised weight bearing. It did not require arch supports, custom orthotic inserts, or other shoe modifications. He noted that the Veteran underwent surgeries in 2007 and 2008, and that his residual symptoms include pain and limited range of motion, as well as difficulty running, climbing, and jumping. He had less and weakened movement due to hardware fixation; pain with or without weight bearing; difficulty with ambulation and standing; and swollen foot. He also had four scars (rated separately pursuant to a March 2010 rating decision that has not been appealed). He did not use any assistive devices as a normal mode of locomotion. The functional impact was that the Veteran had moderately severe difficulty with activities involving running, jumping, and climbing. The December 2019 VA examiner deemed the Veteran's left foot disability to be moderately severe. In the absence of medical evidence that the Veteran's disability is manifested by a severe foot injury, including when 38 C.F.R. §§ 4.40, 4.45, and DeLuca, Sharp and Correia are considered, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against the assignment of an initial rating in excess of 20 percent for the Veteran's left foot disability; the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied Entitlement to an initial rating in excess of 10 percent for left peroneal nerve damage is denied. In its October 2009 rating decision, the RO granted service connection for the Veteran's left foot disability. It assigned a 20 percent rating effective April 20, 2009 (the day following the last day of active duty service). It also granted service connection and a separate 10 percent rating for left peroneal nerve damage as secondary to the Veteran's left foot disability. In November 2009, the Veteran filed a timely notice of disagreement addressing both issues. The RO issued a March 2010 statement of the case in which both issues are listed separately. In April 2010, the Veteran filed a timely substantive appeal in which he appealed both issues. Consequently, the issue of entitlement to an initial rating in excess of 10 percent for left peroneal nerve damage is properly on appeal. In an October 2010 rating decision, the RO combined the issues of left foot ankylosis and left peroneal nerve damage. It continued a 20 percent rating for the left foot ankylosis. The separate rating for the left peroneal nerve damage was eliminated (see code sheet). In a November 2019 rating decision, the RO once again granted a separate 10 percent rating for left peroneal nerve damage effective April 20, 2009 (the day following the last day of active duty service). This issue never ceased to be on appeal (although the Board failed to recognize it as a separate issue in its March 2018 Remand). Consequently, it is within the Board's jurisdiction to adjudicate. The Veteran's service-connected left peroneal nerve damage has been rated by the RO under the provisions of Diagnostic Code 8523. Under this regulatory provision, a noncompensable rating is warranted for mild incomplete paralysis of the anterior tibial nerve (deep peroneal). A 10 percent rating is warranted for moderate incomplete paralysis of the anterior tibial nerve (deep peroneal). A 20 percent rating is warranted for severe incomplete paralysis of the anterior tibial nerve (deep peroneal). A 40 percent rating is warranted for complete paralysis of the anterior tibial nerve (deep peroneal), with dorsal flexion of the foot lost. The Veteran underwent a VA examination in April 2009. He reported that pins/needles, tingling, and numbness affected his left foot. He reported no treatment at that time. The Veteran underwent a VA examination in August 2019. He reported that his left peroneal nerve damage had gotten progressively worse in the past eight years. He reported constant left lower extremity numbness and pain that he rated 10/10 in severity, which was aggravated by standing and walking. He reported that he took Buprenorphine (900 mg. two times per day) and a Percocet (a 10/325 tablet every eight hours) with minimal relief. He reported moderate constant pain in the left lower extremity, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing was 4/5 for left ankle plantar flexion and dorsiflexion. Reflex examination showed 1+ (hypoactive) reflexes in the left ankle. Sensory examination showed decreased sensation in the left lower leg/ankle (L4/L5/S1) and decreased sensation in the left foot/toes (L5). The Veteran had an antalgic gait. The Veteran had moderate incomplete paralysis of the anterior tibial nerve (deep peroneal). All other nerves were normal. The Veteran reported that he constantly uses a cane and that he occasionally uses a walker as a normal mode of locomotion. The examiner noted that the impact of the Veteran's nerve damage is that there is disturbance of movement and interference with walking and standing. The August 2019 VA examiner specifically noted that the Veteran's left peroneal nerve damage was manifested by moderate incomplete paralysis of the anterior tibial nerve (deep peroneal). In the absence of medical evidence that the Veteran's disability is manifested by severe incomplete paralysis of the anterior tibial nerve (deep peroneal), the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for the Veteran's left peroneal nerve damage; the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied An initial rating in excess of 10 percent prior to December 30, 2019 for degenerative joint disease of the cervical spine is denied. In its October 2009 rating decision, the RO granted service connection for the Veteran's degenerative joint disease of the cervical spine. It assigned a 10 percent rating effective April 20, 2009 (the day following the last day of active duty service). In an April 2020 rating decision, the RO increased the rating to 20 percent effective December 30, 2019. Since the increase does not include the entire period under appeal, there are multiple time periods to consider. The Veteran's service-connected degenerative joint disease, cervical spine has been rated by the RO under the provisions of Diagnostic Code 5242. The General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episode) a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome. Additionally, a 60 percent disability rating is warranted for intervertebral disc syndrome when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. Prior to December 30, 2019, the Veteran's degenerative joint disease of the cervical spine is rated as 10 percent disabling. In order to warrant a rating in excess of 10 percent, the disability must be manifested by forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran underwent a VA examination in April 2009. The examiner noted audible cracking during range of motion of the cervical spine. The Veteran achieved forward flexion from 0-40 degrees with pain throughout range of motion. He achieved extension from 0-45 degrees, with pain throughout range of motion. He achieved right lateral bending from 0-40 degrees with pain throughout range of motion. He achieved left lateral bending from 0-45 degrees with no pain. He achieved right rotation from 0-60 with pain throughout range of motion. He achieved left rotation from 0-50 with no pain. With repetition, there was no additional loss of motion in any direction. X-rays showed minimal degenerative change of the articular facet joint at C6-T1. There was no significant narrowing of the intervertebral disc spaces and neural foramina. The Veteran reported that he had been ordered bedrest on three occasions in the past 12 months. On two occasions, the bedrest lasted 3 days. On one occasion, it lasted 4 days. The Board notes that this constitutes 10 days of bedrest. The Veteran underwent another VA general medical examination in December 2010. He reported increased stiffness and pain since the April 2009 VA examination. He described the pain as intermittent, throbbing, and piercing. It occurred daily and lasted for minutes to hours. He reported that the pain was moderate to severe. He denied incapacitating episodes in the past 12 months. He reported 2-3 flare-ups per day. Flare-ups lasted for minutes. He reported stiffness, fatigue, weakness, decreased motion, numbness, and paresthesias. He denied leg or foot weakness, bladder complaints, bowel complaints, and erectile dysfunction. He stated that he could only walk for a few yards. He had not had any hospitalizations. He stated that he had not worked since 2006, and that he was limited in activities of daily living due to his ankle disability. Upon examination, posture and gait were normal. There was slight kyphosis. There was no ankylosis, muscle spasms, weakness, guarding of motion, or nonorganic physical signs. There was tenderness. The Veteran achieved forward flexion from 0-45 with no pain. He achieved extension from 0-40 degrees with pain throughout range of motion. He achieved right lateral bending from 0-25 degrees with pain throughout range of motion. He achieved left lateral bending from 0-40 degrees with pain. He achieved right rotation from 0-60 without pain. He achieved left rotation from 0-50 with pain throughout range of motion. With repetition, there was no additional loss of motion in any direction. The Veteran underwent another VA examination in August 2019. He reported that his neck pain had gotten progressively worse during the past two years. He reported constant neck pain that is 10/10 in severity. He stated that it was aggravated by driving, carrying heavy objects, and sitting for extended periods of time. He reported flare-ups that lasted approximately five minutes. He stated that his neck pain flared up when he had to hold his head up for long periods of time throughout the day. He stated that it was difficult for him to lift his grandchild, and to drive for extended periods of time. Upon examination, initial range of motion was 0-40 degrees of forward flexion, 0-40 degrees of extension, 0-35 of right lateral flexion, 0-40 degrees of left lateral flexion, 0-70 degrees of right rotation, and 0-75 degrees of left rotation. The loss of motion itself did not constitute functional loss. It was the pain associated with the motion that caused functional loss. He felt pain during all phases of motion. There was also objective evidence of localized tenderness or pain on palpation (of 10/10 intensity) from C5-C6. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing without any additional loss of motion. The examiner opined that following repeated use over time and during flare-ups, the Veteran would be able to achieve 0-35 degrees of forward flexion, 0-35 degrees of extension, 0-30 of right lateral flexion, 0-35 degrees of left lateral flexion, 0-65 degrees of right rotation, and 0-70 degrees of left rotation. The Veteran did not have guarding or muscle spasms. Sensory examination was normal, and there was no evidence of radiculopathy. There was no ankylosis. There was no intervertebral disc syndrome. The Veteran did not use assistive devices as a normal mode of locomotion. The functional impact of the Veteran's disability was limited neck movement. There was no objective evidence of pain when the neck was used in non-weight bearing. Passive range of movement was the same as active range of movement. The Board notes that the Veteran has undergone three VA examinations, and that none of them reflect findings that would satisfy the criteria for a rating in excess of 10 percent. In order to warrant a rating in excess of 10 percent, the Veteran's disability would have to result in forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. At his three examinations, he achieved forward flexion from 0-40 degrees (April 2009), 0-45 degrees (December 2010) and 0-40 degrees (August 2019). Even accounting for repeated use over time and with flare-ups, the August 2019 examiner estimated that the Veteran would be able to achieve forward flexion from 0-35 degrees. The Board notes that a rating in excess of 10 percent is also warranted where the combined range of motion of the cervical spine not greater than 170 degrees. At the Veteran's three examinations, he achieved combined range of motion of 280 degrees (April 2009), 260 degrees (December 2010) and 300 degrees (August 2019). Even considering range of motion following repeated use over time and with flare-ups, the August 2019 VA examiner estimated a combined range of motion of 270 degrees. The Board notes that a rating in excess of 10 percent is also warranted for muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The April 2009 examiner did not mention guarding or muscle spasms. However, the December 2010 and August 2019 VA examiners specifically stated that there was no guarding or muscle spasms. Finally, the Board notes a rating in excess of 10 percent is also warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. At his April 2009 VA examination, the Veteran reported prescribed bedrest lasting 10 days. At his December 2010 VA examination, he denied incapacitating episodes. The August 2019 VA examiner explicitly stated that the Veteran did not have intervertebral disc syndrome. The Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent prior to December 30, 2019, including when 38 C.F.R. §§ 4.40, 4.45, and DeLuca, Sharp and Correia are considered. As such, the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. Entitlement to a rating in excess of 20 percent effective December 30, 2019 for degenerative joint disease of the cervical spine is denied. Effective December 30, 2019, the Veteran's degenerative joint disease of the cervical spine has been rated as 20 percent disabling. The Veteran underwent a VA examination in December 2019. He reported baseline pain of 4/10, with flare-up pain measuring 10/10 in severity. He stated that he had difficulty with quick neck turns and scanning the field of vision. Initial range of motion was 0-35 degrees of forward flexion, 0-35 degrees of extension, 0-35 of right lateral flexion, 0-35 degrees of left lateral flexion, 0-70 degrees of right rotation, and 0-70 degrees of left rotation. Range of motion caused a functional loss in that the Veteran has difficulty with driving. Pain was noted throughout range of motion testing. There was objective evidence of localized tenderness or pain on palpation. It was mild and in the lower neck area. There was evidence of pain with weight bearing. Upon examination, the Veteran was able to perform repetitive use testing. Range of motion was 0-30 degrees of forward flexion, 0-30 degrees of extension, 0-30 of right lateral flexion, 0-30 degrees of left lateral flexion, 0-60 degrees of right rotation, and 0-60 degrees of left rotation. The examiner opined that following repeated use over time and during flare-ups, the Veteran would be able to achieve 0-25 degrees of forward flexion, 0-25 degrees of extension, 0-25 of right lateral flexion, 0-25 degrees of left lateral flexion, 0-55 degrees of right rotation, and 0-55 degrees of left rotation. The examiner opined that during a flare-up, the Veteran would be able to achieve 0-20 degrees of forward flexion, 0-20 degrees of extension, 0-20 of right lateral flexion, 0-20 degrees of left lateral flexion, 0-50 degrees of right rotation, and 0-50 degrees of left rotation. The Veteran did not have guarding or muscle spasms. Sensory examination was normal, and there was no evidence of radiculopathy. There was no ankylosis. There was no intervertebral disc syndrome. The Veteran did not use assistive devices as a normal mode of locomotion. The examiner opined that the disability did not impact the Veteran's ability to work. There was objective evidence of pain when the neck was used in non-weight bearing. Passive range of movement was the same as active range of movement. In order for a rating in excess of 20 percent to be warranted, the Veteran's disability would have to be manifested by forward flexion of the cervical spine 15 degrees or less; favorable ankylosis of the entire cervical spine; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. In this case, the December 2019 VA examiner found that even during flare-ups, the Veteran would be able to achieve 20 degrees of forward flexion, and 180 degrees of combined range of motion. He specifically noted that there was no ankylosis or intervertebral disc syndrome. As the preponderance of the evidence is against the assignment of a rating in excess of 20 percent effective December 30, 2019, including when 38 C.F.R. §§ 4.40, 4.45, and DeLuca, Sharp and Correia are considered. As such, the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. An initial rating in excess of 20 percent for degenerative joint disease, left shoulder is denied. In its October 2009 rating decision, the RO granted service connection for degenerative joint disease, left shoulder. It assigned a 10 percent rating effective April 20, 2009 (the day following the last day of active duty service). In a November 2019 rating decision, the RO increased the rating to 20 percent effective from April 20, 2009. Consequently, the 20 percent rating has been granted for the entire period under appeal. The Veteran is right hand dominant (see December 2019 examination report). Consequently, the Veteran's left shoulder is his non-dominant (or minor) shoulder/arm. The Veteran's service-connected left shoulder disability has been rated by the RO under the provisions of Diagnostic Code 5201. Under this regulatory provision, a rating of 20 percent is warrant for major or minor arm limited to shoulder level. A 20 percent rating is also warranted for minor arm limitation of motion to midway between the side and shoulder level. A 30 percent rating is warranted for minor arm limitation of motion to 25 degrees from the side. The Veteran underwent a general medical examination in April 2009. He reported that he experienced left shoulder pain in Kuwait in 2006-2007. He had problems lifting his arm above shoulder level. He stated that he received physical therapy, but it did not help. He reported intermittent, 10/10 pain; weakness; stiffness; swelling; instability; locking; fatigability; and lack of endurance. He reported severe flare-ups resulting in daily pain lasting for hours. He stated that he could not lift any weight during a flare-up. The examiner noted crepitus and tenderness. The Veteran achieved 180 degrees to 0 degrees of active forward flexion. He achieved the same amount of abduction. He achieved 0-90 degrees of external rotation. He achieved 0-70 degrees of internal rotation. There was pain throughout all ranges of motion. Following repetition, there was no additional loss of motion due to pain, weakness, or lack of endurance. The Veteran underwent another VA examination in December 2019. He stated that his left shoulder had been getting progressively worse over the past two years. He reported 5/10 baseline pain, with 10/10 pain during a flare-up. Upon examination, the Veteran achieved flexion from 0-140 degrees, abduction from 0-140 degrees, and external and internal rotation from 0-80 degrees. The Veteran had functional loss in that he stated that he had difficulty with lifting and holding objects. Pain was exhibited throughout all range of motion. The examiner also noted objective evidence of mild localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with no additional loss of motion. The examiner estimated that with repeated use over time, forward flexion and abduction would be limited to 0-120 degrees, and that internal and external rotation would be limited to 0-60 degrees. The additional limitation of motion would be due to pain and fatigue. The examiner further opined that during flare-ups, pain and fatigue would further limit flexion and abduction to 0-100 degrees, and limited internal and external rotation to 0-50 degrees. Muscle strength in the left shoulder was 4/5 on forward flexion and abduction. There was no ankylosis. A rotator cuff condition was suspected. Instability, dislocation, or labral pathology was not. The Veteran had acromioclavicular joint degenerative joint disease. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder) or fibrous union of the humerus. There was objective evidence of pain when the left shoulder was used in non-weight bearing. Passive range of motion was 0-140 degrees of flexion and abduction, and 0-70 degrees of internal and external rotation. At no time in either VA examination, or at any time in the treatment records, has the Veteran's left arm motion been limited to 25 degrees from the side. Even taking into account the Veteran's reported loss of motion during flare-ups and after repeated use over time, the December 2019 examiner opined that the Veteran would still achieve 120 degrees of flexion and abduction after repeated use over time and 100 degrees of flexion and abduction during a flare-up. Diagnostic Codes 5200 and 5202 have been considered. However, the December 2019 VA examiner found that there is no ankylosis and that the Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder) or fibrous union of the humerus. Consequently, these diagnostic codes are inapplicable. There is no medical evidence to show that there is any additional loss of motion of the left shoulder due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 20 percent. The Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 20 percent, including when 38 C.F.R. §§ 4.40, 4.45, and DeLuca, Sharp and Correia are considered. As such, the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. An initial rating in excess of 10 percent for hypertension is denied. The Veteran's service-connected hypertension has been rated by the RO under the provisions of Diagnostic Code 7101. Under this regulatory provision, a rating of 10 percent rating is warranted when diastolic pressures are predominantly 100 or more, or; systolic pressures are predominantly 160 or more, or; as a minimum evaluation with a history of diastolic pressures predominantly 100 or more and continuous medication required for control. A 20 percent rating is warranted when diastolic pressures are predominantly 110 or more, or systolic pressures predominantly 200 or more. A 40 percent rating is warranted when diastolic pressures are predominantly 120 or more. A 60 percent rating is warranted when diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104. The Veteran underwent a general medical VA examination in April 2009. He reported that he took lisinopril for a fair to good control of his blood pressure. The disability had no effects on his occupation or activities of daily living. The Veteran underwent a general medical VA examination in December 2010. He had no current symptoms and his hypertension was considered stable. The disability had no effects on his occupation or activities of daily living. His blood pressure readings upon examination were 155/91, 160/93, and 156/90. The Veteran underwent a VA examination in August 2019. He reported that his blood pressure had been well controlled for the past two years. He reported dizziness when standing quickly. He reported that he continued to take lisinopril. His blood pressure readings upon examination were 101/65, 101/64, and 109/69, for an average of 104/66. The Veteran underwent another VA examination in December 2019. He reported substantially the same symptoms (dizziness when standing too quickly, and treating hypertension with lisinopril). His blood pressure readings upon examination were 108/64, 110/62, and 112/66. The examiner opined that the disability did not impact his ability to work. In order for a rating in excess of 10 percent to be warranted, diastolic pressures must be predominantly 110 or more; or systolic pressures must be predominantly 200 or more. In four VA examinations, with 12 blood pressure readings taken, the Veteran's diastolic pressure was never measured at 110 or more; and systolic pressures were never measured at 200 or more. As the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent; the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. Erin Trojanowski Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.