Citation Nr: 21041681 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 10-14 521 DATE: July 9, 2021 ORDER Entitlement to an initial 20 percent rating prior to October 6, 2020, for right shoulder impingement syndrome is granted. Entitlement to a disability rating greater than 30 percent effective October 6, 2020, for right shoulder impingement syndrome is denied. Entitlement to an initial rating greater than 10 percent prior to April 6, 2015, and greater than 20 percent thereafter, for right hip strain is denied. Entitlement to an initial rating greater than 10 percent prior to February 1, 2018, and greater than 40 percent thereafter, for degenerative arthritis with invertebral disc syndrome of the lumbar spine with spondyloarthropathy is denied. Entitlement to an initial rating greater than 10 percent prior to October 6, 2020, and greater than 30 percent thereafter, for cervical spine strain is denied. REMANDED Entitlement to service connection for right carpal tunnel syndrome is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The record evidence shows that, prior to October 6, 2020, the Veteran's right shoulder impingement syndrome is manifested by, at worst, flexion to 90 degrees, abduction to 60 degrees, external rotation to 40 degrees, and internal rotation to 30 degrees. 2. The record evidence shows that, effective October 6, 2020, the Veteran's right shoulder impingement syndrome is manifested by, at worst, flexion to 35 degrees, abduction to 40 degrees, external rotation to 30 degrees, and internal rotation to 30 degrees. 3. The record evidence shows that, prior to April 6, 2015, the Veteran's right hip is manifested by, at worst, limitation of motion with flexion to 80 degrees, extension greater that 5 degrees, abduction not lost beyond 10 degrees, adduction not limited as such that she cannot cross her legs, and rotation not limited such that she is unable to toe-out more than 15 degrees. 4. The record evidence shows that, from April 6, 2015, the Veteran's right hip is manifested by, at worst, limitation of motion with flexion to 25 degrees, extension greater that 5 degrees, abduction not lost beyond 10 degrees, and adduction not limited as such that she cannot cross her legs, and rotation not limited such that she is unable to toe-out more than 15 degrees. 5. The record evidence shows that, prior to February 1, 2018, the Veteran's degenerative arthritis with invertebral disc syndrome of the lumbar spine with spondyloarthropathy is not manifested by thoracolumbar spine flexion of 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, or intervertebral disc syndrome (IVDS) requiring bedrest. 6. The record evidence shows that, from February 1, 2018, the Veteran's degenerative arthritis with invertebral disc syndrome of the lumbar spine with spondyloarthropathy is not manifested by unfavorable ankylosis in the entire spine or the entire thoracolumbar spine. 7. The record evidence shows that, prior to October 6, 2020, the Veteran's cervical spine is not manifested by forward flexion of 30 degrees or less, a combined range of motion of 170 degrees or loss, ankylosis, muscle spasm, guarding, or incapacitating episodes of IVDS. 8. The record evidence shows that, from October 6, 2020, the Veteran's cervical spine is not manifested by unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating prior to October 6, 2020, for right shoulder impingement syndrome have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201 (2019). 2. The criteria for a disability rating greater than 30 percent effective October 6, 2020, for right shoulder impingement syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201 (2019). 3. The criteria for an initial rating greater than 10 percent prior to April 6, 2015, and greater than 20 percent thereafter, for right hip strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5252 (2019). 4. The criteria for entitlement to an initial rating greater than 10 percent prior to February 1, 2018, and greater than 40 percent thereafter, for degenerative arthritis with invertebral disc syndrome of the lumbar spine with spondyloarthropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2019). 5. The criteria for entitlement to an initial rating greater than 10 percent prior to October 6, 2020, and greater than 30 percent thereafter, for cervical spine strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal of the March 2009 rating decision the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. Jurisdiction subsequently was transferred to the RO in Waco, Texas. The claims were remanded by the Board to the RO for further development in October 2017. It appears that the RO substantially complied with the terms of this REMAND only with respect to the claims adjudicated in this decision. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 1. Entitlement to an initial rating greater than 10 percent prior to October 6, 2020, and greater than 30 percent thereafter, for right shoulder impingement syndrome A November 2008 VA examination reflects right shoulder range of motion, at worst, with flexion 0 to 150 degrees, abduction 0 to 160 degrees, external rotation 0 to 90, and internal rotation 0 to 90. A November 2010 VA examination reflects right shoulder range of motion, at worst, with flexion 0 to 180 degrees, abduction 0 to 180 degrees, external rotation 0 to 90, and internal rotation 0 to 90. The examination noted the Veteran with no gross deformity, no crepitus, and no effusion. April 6, 2015 VA medical examination reflects right shoulder range of motion, at worst, with flexion 0 to 90 degrees, abduction 0 to 60 degrees, external rotation 0 to 40, and internal rotation 0 to 30. A February 2018 VA examination reflects right shoulder range of motion, at worst, with flexion 0 to 95 degrees, abduction 0 to 80 degrees, external rotation 0 to 90, and internal rotation 0 to 90. No ankylosis was noted. An October 6, 2020 VA medical examination reflects right shoulder range of motion with flexion 0 to 35 degrees, abduction 0 to 40 degrees, external rotation 0 to 30, and internal rotation 0 to 30. The examination reflects a rotator cuff condition and no impairment of the humerus. Prior to October 6, 2015, the objective medical evidence reflects the Veteran's right shoulder disability was manifested by limitation of motion of the right arm at shoulder level. As the minimum rating under DC 5201 is 20 percent, the Board has considered whether a rating in excess of 20 percent under 5201 is appropriate and finds that such an evaluation is not warranted prior to October 6, 2020. Taking the Veteran's right shoulder condition limitation, decreased range of motion, and noted painful motion of his right shoulder, the Board finds that the right shoulder motion was limited to shoulder level. As such, the minimum rating of 20 percent based on limitation of motion is warranted prior to October 6, 2020. A preponderance of the evidence is against a higher evaluation as motion is not limited to midway between the shoulder and side prior to October 6, 2020. From October 6, 2020 the Veteran's right shoulder disability has been manifested by limitation of motion of the arm midway between the side and shoulder level. The Veteran's right shoulder has not been manifested by limitation of motion of the arm to 25 degrees from the side. As such, a disability rating greater than 30 percent is not warranted for this time period. The Board has considered whether the right shoulder disability warrants a higher rating under another DCs but finds they are not applicable. The evidence does not show the Veteran had ankylosis of the scapulohumeral articulation, or other impairment of the humerus which warrant a higher rating under DCs 5200 and 5202. 2. Entitlement to an initial rating greater than 10 percent prior to April 6, 2015, and greater than 20 percent thereafter, for right hip strain As a preliminary matter, the Board notes that the Veteran's right hip has never manifested ankylosis. X-rays taken throughout the claims period have not demonstrated a flail joint or impairment of the femur (to include fractures or malunion). The October 2020 VA examiner specifically found that these conditions were not present. Thus, the Board finds that DCs 5250, 5254, and 5255 are not applicable. Instead, the Board must determine whether increased ratings are warranted for the right hip disability under DCs 5251-5253 pertaining to limitation of motion and impairment of the thigh. The Veteran was provided a VA examination in November 2008. The VA examination reflects the right hip with the following ranges of motion: flexion 0 to 125 degrees, extension at 30 degrees, abduction at 45 degrees, adduction 0 to 25 degrees, internal rotation 0 to 40 degrees, external rotation 0 to 60 degrees. The Veteran was provided a VA examination in November 2010. The VA examination reflects the right hip, at worst, with the following ranges of motion: flexion 0 to 80 degrees, extension at 20 degrees, abduction at 30 degrees, adduction 0 to 20 degrees, internal rotation 0 to 20 degrees, external rotation 0 to 40 degrees. The Veteran was provided a VA examination on April 6, 2015. The VA examination reflects the right hip, at worst, with the following ranges of motion: flexion 0 to 25 degrees, extension at 30 degrees, abduction at 20 degrees, adduction 0 to 20 degrees, internal rotation 0 to 20 degrees, external rotation 0 to 40 degrees. The Veteran was provided a VA examination in April 2018. The VA examination reflects the right hip with the following ranges of motion: flexion 0 to 125 degrees, extension at 20 degrees, abduction at 20 degrees, adduction 0 to 40 degrees, internal rotation 0 to 40 degrees, external rotation 0 to 35 degrees. The Veteran was provided another VA examination in October 2020. The October 2020 VA examination reflects the right hip with the following ranges of motion: flexion 0 to 40 degrees, extension at 30 degrees, abduction at 20 degrees, adduction 0 to 15 degrees, internal rotation 0 to 15 degrees, external rotation 0 to 30 degrees. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an initial rating greater than 10 percent prior to April 6, 2015, and greater than 20 percent thereafter, for right hip strain. Prior to April 6, 2015, the objective medical evidence does not demonstrate the right hip disability was manifested by, at worst, flexion limited to 30 degrees or less. As such a disability rating greater than 10 percent for right hip strain is not warranted under DC 5252 (limitation in flexion). Prior to April 6, 2015 a compensable rating under DC 5251 (limitation of extension) also is not warranted as the right hip disability has not been manifested by extension limited to 5 degrees. Further, prior to April 6, 2015 a compensable rating under DC 5253 is not warranted as the right hip disability has not been manifested by abduction with motion lost beyond 10 degrees, adduction limited preventing her from crossing her legs, or limitation in rotation in which she is unable to toe out more than 15 degrees of affected leg. From April 6, 2015, the objective medical evidence does not demonstrate the right hip disability was manifested by flexion limited to 20 degrees or less. As such a disability rating greater than 20 percent disabling for right hip strain is not warranted under DC 5252 (limitation in flexion). Additionally, from April 6, 2015 a compensable rating under DC 5251 (limitation of extension) is not warranted as the right hip disability has not been manifested by extension limited to 5 degrees. Further, from April 6, 2015 a compensable rating under DC 5253 is not warranted as the right hip disability has not been manifested by abduction with motion lost beyond 10 degrees, adduction limited preventing her from crossing her legs, or limitation in rotation in which she is unable to toe out more than 15 degrees of affected leg. She finally has not identified or submitted any evidence demonstrating her entitlement to an initial rating greater than 10 percent prior to April 6, 2015, and greater than 20 percent thereafter, for her service-connected right hip strain. In summary, the Board finds that the criteria for an initial rating greater than 10 percent prior to April 6, 2015, and greater than 20 percent thereafter, for right hip strain have not been met. 3. Entitlement to an initial rating greater than 10 percent prior to February 1, 2018, and greater than 40 percent thereafter, for degenerative arthritis with invertebral disc syndrome of the lumbar spine with spondyloarthropathy The Veteran's service-connected degenerative arthritis with invertebral disc syndrome of the lumbar spine with spondyloarthropathy has been rated as 10 percent disabling, prior to February 1, 2018 and 40 percent thereafter, under DC 5242. The Veteran was afforded a VA examination in November 2008. The examination reflected the lumbar spine had forward flexion from 0 to 80 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 30 degrees, right lateral rotation from 0 to 30 degrees and left lateral rotation from 0 to 30 degrees. The examination noted no ankylosis, no IVDS, and no guarding of movement. The Veteran was afforded a VA examination in November 2010. The examination reflected the lumbar spine, at worst, had forward flexion from 0 to 70 degrees, extension from 0 to 20 degrees, lateral flexion from 0 to 30 degrees in each direction, and bilateral rotation from 0 to 30. The examination noted no ankylosis. The Veteran was afforded another VA examination in February 2012. The examination reflected the lumbar spine, at worst, had forward flexion from 0 to 60 degrees, extension from 0 to 20 degrees, lateral flexion from 0 to 20 degrees in each direction, and bilateral rotation from 0 to 20. The Veteran was afforded another VA examination on February 1, 2018. The examination reflected the lumbar spine had forward flexion at 0 degrees, extension from 0 to 5 degrees, lateral flexion from 0 to 10 degrees in each direction, right lateral rotation from 0 to 20 degrees, and left lateral rotation from 0 to 10 degrees. No ankylosis was noted. The Veteran was afforded another VA examination in October 2020. The examination reflected the lumbar spine had forward flexion at 25 degrees, extension from 0 to 10 degrees, lateral flexion from 0 to 10 degrees in each direction, right lateral rotation from 0 to 20 degrees, and left lateral rotation from 0 to 15 degrees. No ankylosis was noted. Based on the above, the Board finds that an initial rating greater than 10 percent prior to February 1, 2018, for degenerative arthritis with invertebral disc syndrome of the lumbar spine with spondyloarthropathy is not warranted. A disability rating greater than 10 percent prior to February 1, 2018, is not warranted as the competent credible evidence does not indicate that the Veteran had thoracolumbar spine 60 degrees or less, combined range of motion of the thoracolumbar spine 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis, ankylosis, or IVDS. The Board also finds that a disability rating greater than 40 percent effective February 1, 2018, for degenerative arthritis with invertebral disc syndrome of the lumbar spine with spondyloarthropathy is not warranted. A disability rating greater than 40 percent is not warranted as the competent credible evidence does not indicate that the Veteran has unfavorable ankylosis in the entire spine or entire thoracolumbar spine. Ankylosis is defined as the immobility and consolidation of a joint due to disease, injury, surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing SAUNDERS ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, Nursing, and Allied Health at 68 (4th ed. 1987)). Here, ankylosis has not been diagnosed or identified by x-ray evidence of record. Therefore, as the Veteran has been able to extend, flex, and flex and rotate laterally, the Board finds that ankylosis is not shown. Furthermore, the claims file does not indicate that she experienced an incapacitating episode of IVDS for a total duration of at least 4 weeks during the last 12 months. In making this determination, the Board considered any functional loss caused due to flare-ups of pain, weakness, fatigability, or incoordination. See DeLuca, 8 Vet. App. at 202. The evidence does not show that the spine disability more nearly approximates the criteria for higher ratings for any period on appeal. To the extent that the Veteran has reported experiencing flare-ups and functional impairment, this impairment is contemplated by the currently assigned 10 percent and 40 percent ratings. The evidence does not show that her functional loss more closely approximates the criteria for higher ratings. As such, higher ratings based on pain and functional loss are not warranted. See Mitchell, 25 Vet. App. 32; Deluca, 8 Vet. App. at 206-07. The Veteran otherwise has not identified or submitted any evidence demonstrating her entitlement to higher ratings during either time period at issue in this appeal. In summary, the Board finds that the criteria for an initial rating greater than 10 percent prior to February 1, 2018, and greater than 40 percent thereafter, for degenerative arthritis with invertebral disc syndrome of the lumbar spine with spondyloarthropathy have not been met. 4. Entitlement to an initial rating greater than 10 percent prior to October 6, 2020, and greater than 30 percent thereafter, for cervical spine strain The service-connected cervical spine disability has been evaluated under DC 5242. The Veteran was afforded a VA examination in November 2008. The examination reflected the cervical spine, at worst, had forward flexion from 0 to 40 degrees, extension from 0 to 40 degrees, right lateral flexion from 0 to 40 degrees, left lateral flexion from 0 to 40 degrees, right lateral rotation from 0 to 60 degrees and left lateral rotation from 0 to 70 degrees. The Veteran was afforded a VA examination in November 2010. The examination reflected the cervical spine, at worst, had forward flexion from 0 to 45 degrees, extension from 0 to 45 degrees, bilateral flexion from 0 to 45 degrees, and bilateral rotation from 0 to 80. The examination noted no ankylosis, crepitus, or gross deformity. The Veteran was afforded another VA examination in February 2012. The examination reflected the cervical spine, at worst, had forward flexion from 0 to 20 degrees, extension from 0 to 20 degrees, lateral flexion from 0 to 20 degrees in each direction, and bilateral rotation from 0 to 20. The Veteran was afforded another VA examination in February 2018. The examination reflected the cervical spine had forward flexion at 45 degrees, extension from 0 to 25 degrees, right lateral flexion from 0 to 10 degrees, left lateral flexion from 0 to 25 degrees, right lateral rotation from 0 to 45 degrees, and left lateral rotation from 0 to 35 degrees. No ankylosis was noted. The Veteran was afforded another VA examination on October 6, 2020. The examination reflected the cervical spine had a forward flexion at 15 degrees, extension from 0 to 15 degrees, lateral flexion from 0 to 10 degrees in each direction, and bilateral rotation from 0 to 15 degrees. No ankylosis was noted. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an initial rating greater than 10 percent prior to October 6, 2020, and greater than 30 percent thereafter, for cervical spine strain. Since the cervical spine did not demonstrate forward flexion of 15 degrees prior to October 6, 2020, a rating greater than 30 percent is not warranted under DC 5242. Additionally, a disability rating greater than 30 percent from October 6, 2020 is not warranted as the competent credible evidence does not indicate that the Veteran has favorable ankylosis or unfavorable ankylosis of the entire cervical spine or entire spine. Furthermore, the claims folder does not indicate that she experienced an incapacitating episode for a total duration of at least four weeks during the last 12 months. The Board notes in this regard that, for VA purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). The Board has considered whether there are any other applicable DCs which would provide a higher rating but the record evidence does not support ratings under other DCs. The Veteran finally has not identified or submitted any evidence demonstrating her entitlement to an initial rating greater than 10 percent prior to October 6, 2020, and greater than 30 percent thereafter, for her service-connected cervical spine strain. In summary, the Board finds that the criteria for an initial rating greater than 10 percent prior to October 6, 2020, and greater than 30 percent thereafter, for cervical spine strain, have not been met. REASONS FOR REMAND 1. Entitlement to service connection for right carpal tunnel syndrome is remanded. The Board remanded this claim in October 2017 for further development. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The Veteran was provided a VA medical examination in February 2018. The examiner concluded the Veteran did not have carpal tunnel syndrome. The examiner stated that there were "never any consistent neurological finding to make a firm clinical diagnosis that must be present for carpal tunnel syndrome". Additionally, the examiner stated that previous electrodiagnostic studies only displayed mild carpal tunnel syndrome. Lastly, the examiner stated that on a "normal" EMG the finding were mild distal motor latency. The examiner appeared to question the validity of previous clinical test as well as previous clinician's thoroughness. The Board finds that a new examination/opinion is needed prior to adjudication. The October 2017 Board remand requested the examiner to address in-service notations of right carpal tunnel syndrome, as well as the 2006 EMG findings, and reconcile those findings with post-service VA EMG findings in 2013 and 2015 indicating no right median neuropathy. Here, the February 2018 medical opinion makes no mention of the in-service notations of right carpal tunnel syndrome. Further, the examiner failed to explain what is considered "consistent neurological findings" in relation to carpal tunnel syndrome and what medical standard and/or treatise is being used that require such a standard. Additionally, the examiner noted the Veteran with mild distal motor latency. The examiner did not discuss whether is this a medical condition and, if so, whether it is related to the Veteran's claim. As such, a supplemental examination/opinion is necessary prior to adjudicating the issue on appeal. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO to re-certify this appeal to the Board without complying with the October 2017 remand instructions. Given this error, another remand is required. 2. Entitlement to a TDIU The Board has considered whether the Veteran would be prejudiced by adjudicating her TDIU claim while remanding the service connection claim for right carpal tunnel syndrome and whether these issues are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Because adjudication of service connection claim being remanded likely will have a significant impact on the TDIU claim, the Board finds these claims inextricably intertwined. Thus, adjudication of the TDIU claim is deferred. The RO also should obtain the Veteran's updated treatment records. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Thereafter, schedule the Veteran for examination with an appropriate clinician to determine the nature and etiology of the claimed right carpal tunnel syndrome. If possible, this examination should be conducted by a clinician other than the clinician who conducted the February 2018 examination. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that right carpal tunnel syndrome, if diagnosed, is related to active service. The clinician next is asked to state whether the manifestations of right carpal tunnel syndrome, if diagnosed, are separate and distinct from the Veteran's service-connected right cubital tunnel syndrome, and if so, identify the manifestations. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is asked to review and discuss the in-service notations of right carpal tunnel syndrome, as well as the 2006 EMG findings, and reconcile those findings with post-service VA EMG findings in 2013 and 2015 indicating no right median neuropathy. The clinician also is asked not to review or rely upon a February 2018 opinion in preparing his or her own opinion. 3. Review the completed examination report and determine whether it complies substantially with the terms of this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brandon A. Williams, 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.