Citation Nr: 21060375
Decision Date: 09/26/21	Archive Date: 09/26/21

DOCKET NO. 10-08 771
DATE: September 26, 2021

ORDER

The claim for service connection for a disability of the left knee is reopened. 

A rating higher than 20 percent for lumbar spine degenerative disc disease (low back disability) is denied.

An effective date of May 6, 2016 for the assignment of a separate 20 percent rating for radiculopathy of the right lower extremity associated with lumbar spine degenerative disc disease is granted.

A rating higher than 20 percent for radiculopathy of the right lower extremity associated with lumbar spine degenerative disc disease is denied.

A rating higher than 20 percent for right shoulder fraying of the labrum, instability, and history of multiple locations (right shoulder disability) is denied.

A rating higher than 50 percent prior to October 8, 2019, and higher than 70 percent since that date, for posttraumatic stress disorder (PTSD) is denied. 

REMANDED

Entitlement to service connection for a left knee disability is remanded

Entitlement to service connection for a right hip disability is remanded.

Entitlement to an initial rating higher than 10 percent for status post right knee anterior cruciate ligament tear with repairs (right knee disability) is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. 

FINDINGS OF FACT

1. The claim for service connection for a left knee disability was previously denied in an April 2009 rating decision; the Veteran did not perfect an appeal of that decision. 

2. Since the April 2009 rating decision, new and material evidence has been received to reopen the claim for a left knee disability.

3. The Veteran's low back disability has not been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; by favorable or unfavorable ankylosis; or by incapacitating episodes of intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician for a total duration of at least four weeks during a twelve-month period.  

4. The Veteran has had lumbar radiculopathy involving the right lower extremity since at least May 6, 2016, which is the date of claim for an increased rating for his low back disability (as determined by the agency of original jurisdiction).

5. The Veteran's right lower extremity radiculopathy has not been manifested by moderately severe, severe, or complete paralysis of the sciatic nerve.

6. The Veteran's right shoulder disability is manifested by flexion and abduction of the right shoulder limited to around shoulder level, but not limited to at least midway between the side and shoulder level; it is also manifested by recurrent dislocation at the joint, with infrequent episodes and guarding of movement only at shoulder level, but not by frequent episodes of recurrent dislocation and guarding of all arm movements.  

7. Prior to October 8, 2019, the preponderance of the evidence shows that the Veteran's PTSD was not manifested by deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or by total occupational and social impairment. 

8. Since October 8, 2019, the Veteran's PTSD has not been manifested by total occupational and social impairment. 

CONCLUSIONS OF LAW

1. The April 2009 rating decision is final with regard to the denial of service connection for a left knee disability.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

2. The criteria for reopening the claim for service connection for a left knee disability have been met.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.

3. The criteria for a rating higher than 20 percent for lumbar spine degenerative disc disease have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5243.

4. The criteria for an effective date of May 6, 2016 for the assignment of the 20 percent rating for radiculopathy of the right lower extremity have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.400, 4.3, 4.71a, 4.24a. 

5. The criteria for a rating higher than 20 percent for right lower extremity radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.24a, Diagnostic Code 8520.

6. The criteria for a rating higher than 20 percent for disability of the right shoulder manifested by limited range of motion of the arm in flexion and abduction have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a,  Diagnostic Code 5201. 

7. The criteria for a separate rating of 20 percent, but no higher, for recurrent dislocation of the right shoulder have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a,  Diagnostic Code 5202.

8. The criteria for a rating higher than 50 percent prior to October 8, 2019, and higher than 70 percent since that date, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.130,  Diagnostic Code 9411. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 2004 to November 2007.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2009, August 2016, May 2018, and July 2018 of a Department of Veterans Affairs (VA) Regional Office (RO).   They have been consolidated under the present docket.  In May 2016, the Board, in pertinent part, remanded the issues of entitlement to a higher initial rating for the right knee disability and TDIU.  

A February 2020 rating decision granted service connection for radiculopathy of the right lower extremity associated with the Veteran's low back disability, and assigned an initial 20 percent rating.  The grant of service connection for right lower extremity radiculopathy arose out of the evaluation of the Veteran's low back disability.  The Veteran disagrees with the evaluation assigned his radiculopathy.  See August 2020 Third Party Correspondence.  The Board finds that this issue is encompassed by the appeal of the evaluation of his low back disability, and therefore is currently before the Board. 

The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2016 regarding the issue of entitlement to a higher initial rating for his right knee disability, as well as other issues no longer on appeal.  A transcript of the hearing is of record. 

Petition to Reopen Claim

Under VA's legacy appeal system, which applies here, a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal under VA's legacy appeal system). 

To reopen a previously and finally disallowed claim under VA's legacy appeal system, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial.  See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).

"New and material evidence" is defined as follows.  "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  To warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue.  Duran v. Brown, 7 Vet. App. 216, 220 (1994).

Left Knee Disability 

The claim for service connection for a left knee disability was originally denied in an April 2009 rating decision.  The Veteran was notified of the decision and his appellate rights in an April 2009 letter.  See 38 U.S.C. § 5104; 38 C.F.R. §§ 3.103, 19.25.  He submitted a timely notice of disagreement (NOD) in May 2009.  See 38 C.F.R. §§ 20.200, 20.201.  However, he did not perfect the appeal following issuance of a Statement of the Case (SOC) in December 2009.  See 38 C.F.R. §§ 20.200, 20.202, 20.302.  Rather, he expressly limited his substantive appeal to other issues.  See February 2010 VA Form 9.  He did not submit or identify additional evidence pertaining to the left knee claim during the appeal period.  See 38 C.F.R. §§ 20.200, 20.201, 20.302; see also 38 C.F.R. §§ 3.400, 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final). 

Although the claim for a left knee disability was mistakenly addressed in supplemental Statements of the Case (SSOC's) dated in May 2010 and October 2013, the fact remains that the Veteran did not perfect the appeal.  A February 2015 SSOC effectively notified him of that fact, as it informed him that his appeal at that time was limited to claims for service connection for a right shoulder disability, back injury, and the evaluation of his service-connected right knee disability.  Accordingly, the April 2009 rating decision is final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

The April 2009 rating decision denied service connection for the Veteran's left knee disability based on a finding that he did not have a current disability. 

Since the April 2009 decision was issued, the Veteran submitted an August 2017 private medical report by C. Bash, M.D. that is based on a review of the Veteran's records and a "clinical interview" with him.  The report finds that the Veteran has left knee arthritis due to overuse caused by his service-connected right knee disability.  

The August 2017 report by Dr. Bash was not of record at the time of the April 2009 rating decision.  It provides favorable evidence on the previously unestablished fact of whether the Veteran has a current disability of the left knee, which is an element of service connection that must be met to substantiate the claim.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).   It also provides favorable evidence relating to the criteria for service connection on a secondary basis in its finding that the Veteran's left knee arthritis has been caused by his service-connected right knee disability.  See 38 C.F.R. § 3.310 (setting forth criteria for service connection on a secondary basis).  Accordingly, it raises a reasonable possibility of substantiating the claim.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  

Accordingly, the Board finds that new and material evidence has been received to reopen the claim for service connection for a left knee disability.  See 38 C.F.R. § 3.156.  The issue of entitlement to service connection is addressed in the Board's remand directives below. 

Increased Rating

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  

Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Low Back Disability 

A. Rating Criteria 

The Veteran's service-connected lumbar spine degenerative disc disease has been rated under Diagnostic Code (DC) 5243, which pertains to invertebral disc syndrome.  The rating schedule provides for the evaluation of all disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243).  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.  The evaluation of IVDS will be discussed below.  

The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020).  The Board may consider these changes without remand  to the AOJ for consideration in the first instance.  See 38 C.F.R. § 20.904(d)(2).  These changes are discussed further below.  

The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise.  VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit).  Thus, the changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date.  See id.; 85 Fed. Reg. 76453.

Under the General Rating Formula, evaluations are assigned as follows:

A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

A 40 percent rating is assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  

A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine.  

A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated.  

Id.  

Any associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code.  Id., Note (1). 

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2); Plate V.  The normal combined range of motion is 240 degrees.  Id.

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. Id., Note (5).  

Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id.

Disabilities of the thoracolumbar and cervical spine segments are evaluated separately, except when there is unfavorable ankylosis of both segments, which is rated as a single disability.  Id., Note (6). 

The above criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  Id.

Under DC 5243, IVDS may be evaluated under the General Rating Formula, as set forth above, or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, DC 5243.  Under the Formula for Rating IVDS, a 10 percent rating is assigned if incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is assigned if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is assigned if the total duration is at least six weeks.  Id.

For purposes of evaluations under diagnostic code 5243, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician.  Id., Note (1). 

The revised schedule, in effect as of February 7, 2021, now provides that DC 5243, pertaining to intervertebral disc syndrome, applies only when there is disc herniation with compression and/or irritation of the adjacent nerve root; in all other cases, DC 5242 should be used for all other disc diagnoses.  Schedule for Rating Disabilities:  Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243).  IVDS shall be evaluated, preoperatively or postoperatively, either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  Id.  

The General Rating Formula was also revised to reflect that DC 5242, which pertains to degenerative arthritis, also contemplates degenerative disc disease other than IVDS.  Schedule for Rating Disabilities:  Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5242).  No substantive changes were made. 

In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  With respect to the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45. 

These considerations thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion.  DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

 

B. Analysis

A VA examination was performed in December 2016.  The examination report reflects that the Veteran stated he has flare-ups of increased back pain that occurred one to two times per week on average, and which lasted twenty-four hours.  The flares were precipitated by bending and alleviated with stretching, heat, and ice.  The examiner did not provide the results of range-of-motion testing, finding that the Veteran did not cooperate with attempts to obtain accurate testing results.  He did not have ankylosis.  He did not have radicular pain or other signs of radiculopathy, according to the examination report. 

A VA examination was performed in January 2020.  The examination report reflects that the Veteran related experiencing daily back pain that was constant.  Some days he had difficulty getting out of bed.  He also had sharp, shooting pains down his legs about once per month, which were greater on the right side than the left, and extended to his calves and heels.  He did not take medications, but occasionally took acetaminophen as needed.  His back was also treated with BioFreeze, ice and heat, massage, a TENS unit, and chiropractic treatment as needed.  He had flare-ups of back pain about once per month, which generally lasted up to a couple of days, but could be up to three days.  If his back was "bad," he could not lift at all.  Otherwise, the maximum amount of weight he could lift was 10 pounds.  He could do repetitive motions about two to three times, but tried to avoid repetitive motion with his back.  He could not shovel snow.  He worked as a chiropractor, and his back condition "makes it difficult."   

The January 2020 examination report states that on examination, forward flexion of the Veteran's thoracolumbar spine was to 50 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 20 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 15 degrees.  The examiner noted that the Veteran's limited range of motion made him less able to flex, extend, or rotate the back to accomplish tasks.  There was objective evidence of localized tenderness or pain on palpation of the paraspinous muscles, with pain on the right greater than the left.  On Correia testing, passive range of motion of the back was the same as active range of motion.  See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016).  There was objective evidence of pain in weightbearing and non-weight bearing.  There was no additional loss of range of motion on repetitive-use testing.  The examination was not being performed during a flare-up or after repeated use over time. The examiner found that pain and lack of endurance significantly limited functional ability with repeated use of the back over time.  The examiner estimated that with repeated use over time or during flare-ups, the Veteran's forward flexion of the thoracolumbar spine would be to 40 degrees; extension to 5 degrees; right lateral flexion to 5 degrees; left lateral flexion to 15 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 10 degrees.  The examiner found that the Veteran had muscle spasm of the thoracolumbar spine resulting in an abnormal gait or abnormal spinal contour.  The Veteran did not have ankylosis.  The Veteran did not have acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past twelve months.   He wore a back brace occasionally.  Regarding the functional impact of the Veteran's low back disability, the examiner found that the Veteran could do a maximum single lift of 10 pounds.  Repetitive bending and lifting were limited to less than 5 minutes before he needed a break.  Sitting was limited to ten to fifteen minutes, and he needed a desk that could be adjusted to a standup desk as  a work accomodation.  

The January 2020 examiner also found that the Veteran had radiculopathy of the right lower extremity involving the sciatic nerve.  The details of those findings are discussed below in the section addressing the evaluation of that disability.  

The Veteran submitted an August 2017 private medical evaluation authored by C. Bash, M.D., which is based on a review of the Veteran's records and a "clinical interview" with him.  That opinion does not support assignment of a higher rating under the General Rating Formula.  Rather, it speaks to the issues of service connection and whether the Veteran has associated radiculopathy.  The Veteran's radiculopathy of the right lower extremity has since been service connected, and its evaluation is discussed below.  

Based on the evidence reviewed above, the Board finds that the criteria under the General Rating Formula for a rating higher than 20 percent for the Veteran's low back disability have not been met, as he has not had forward flexion of the thoracolumbar spine limited to 30 degrees or less, including when taking into account functional loss during flare-ups or with repeated use over time, and has not had favorable or unfavorable ankylosis of the spine.  See 38 C.F.R. § 4.71a.  Although the December 2016 VA examiner declined to provide range-of-motion testing results, there is no indication that his low back disability improved between the December 2016 examination and the January 2020 examination.  Thus, it can be assumed that any accurate range-of-motion measurements at the time of the December 2016 VA examination would not have shown more limited flexion than that recorded in the January 2020 VA examination report. 

The Veteran's forward flexion of the thoracolumbar spine limited to 40 degrees during flare-ups, as estimated by the January 2020 VA examiner, is contemplated by the 20 percent rating assigned.  Likewise, his spasm resulting in an abnormal gait or spinal contour noted in the January 2020 VA examination report is contemplated by the current 20 percent rating.  See id.

The General Rating Formula instructs that associated neurologic abnormalities are to be rated separately under an appropriate diagnostic code.  The evaluation of the Veteran's right lower extremity radiculopathy is addressed below.  The record does not show any other associated neurologic abnormalities. 

The criteria for a rating higher than 20 percent under the Formula for Rating IVDS under DC 5243 have not been met, as the Veteran's low back disability has not been manifested by incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician for a total duration of at least four weeks during a twelve-month period.  See id.

The Board may not disregard the ameliorative effects of medication in evaluating the Veteran's low back disability.  Jones v. Shinseki, 26 Vet. App. 56, 61 (2012).  The Board has considered the fact that the Veteran treats his back with over-the-counter oral medication, topical therapies such as BioFreeze, ice and heat, and massage.  The record does not show that absent such treatment his forward flexion of the thoracolumbar spine would be limited to 30 degrees or less.  The Board also observes that the January 2020 examiner estimated that during flare-ups, which presumably occur between treatment with medication and other therapy, or when such treatment is no longer effective, the Veteran's flexion would still be in excess of 30 degrees.  Thus, when considering the ameliorative effects of medication, the criteria for a rating higher than 20 percent have still not been met.   

The amendments to the rating criteria applicable to the spine effective February 7, 2021, as reviewed above, do not include substantive changes that would affect the evaluation of the Veteran's low back disability.  Rather, the changes simply pertain to when DC's 5242 and 5243 apply.  The Board has already considered the Veteran's low back disability under both rating formulas.  

In April 2020 correspondence, the Veteran, through his representative, asserts that the evaluation of his low back disability should be referred for an extraschedular evaluation.  See 38 C.F.R. § 3.321(b).  In this regard, he states that the schedular criteria do not sufficiently capture the symptoms or severity of his disability.  He states that, for example, the January 2020 VA examination report notes that some days he had difficulty getting out of bed.  Moreover, he could not lift at all if his back is "bad," but even when at baseline he could not lift more than ten pounds, and tried to avoid repetitive motions.  For the following reasons, the Board finds that referral for extraschedular consideration is not warranted. 

Because the ratings provided in the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless is still considered adequate to address the average impairment in earning capacity caused by the disability.  38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b). 

These criteria involve distinct elements, each of which must be satisfied to warrant extraschedular referral.  Chudy v. O'Rourke, 30 Vet. App. 34, 37-38 (2018); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009).  The first element requires the Board to determine whether the evidence presents such an exceptional or unusual disability picture that the available schedular evaluations for the disability under consideration are inadequate.  Thun, 22 Vet. App. at 115.  This requires the Board to compare the Veteran's symptoms and their severity with those contemplated by the rating schedule.  King v. Shulkin, 29 Vet. App. 174, 178-79 (2017).  If the Board determines that the Veteran's symptoms or their severity is not contemplated by the rating schedule, the second element requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Thun, 22 Vet. App. at 116.  If the first two elements are met, then under the third element the Board must refer the claim to the Under Secretary for Benefits or the Director of Compensation Service for a determination as to whether an extraschedular rating is warranted.  Id.  If either of the first two elements is not satisfied, then referral is not warranted.  Chudy, 30 Vet. App. at 37-38; Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016).

The Veteran's stated difficulties with bending and lifting are not shown to be an exceptional or unusual disability picture vis-à-vis the criteria for a 20 percent rating under the General Rating Formula which, in relevant part, contemplate reduced range of motion of the thoracolumbar spine.  In this regard, the January 2020 VA examiner found that the Veteran's limited range of motion made him less able to flex, extend, or rotate the back to accomplish tasks.  With regard to severity, the January 2020 VA examiner estimated that even during flare-ups or with repeated use over time, the Veteran's forward flexion of the thoracolumbar spine would still exceed 30 degrees, which is the minimum degree of limitation that must be established to meet the criteria for the next higher rating i.e., a 40 percent rating.  See 38 C.F.R. § 4.71a.  Thus, the nature and severity of the Veteran's limitations with regard to bending and lifting, which are among the types of functional impairment in various contexts that the range-of-motion testing is designed to measure, are contemplated by the rating criteria.  Cf. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding that the "rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure").  

With regard to the Veteran's statement that some days he had difficulty getting out of bed and could not lift at all if his back was bad, the evidence does not show that these were typical manifestations of his back disability, or occurred frequently enough that such would be a more accurate representation of his disability picture than his average difficulties with bending and lifting.  The Board also notes that the Formula for Rating IVDS Based on Incapacitating Episodes contemplates incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, DC 5243.  The VA treatment records show that the Veteran has generally not sought treatment for his back disability during the period under review.  To the extent his difficulty getting out of bed can be likened to an incapacitating episode under DC 5243although the incapacitating episode defined in DC 5243 would presumably be more severe, since it requires bed rest prescribed by a physician and treatment by a physicianthe record would still need to show that the total duration over a twelve-month period was at least four weeks to meet the criteria for a rating higher than 20 percent under DC 5243.  There is no indication that such is the case.  

Put another way, as the criteria for a rating higher than 20 percent under DC 5243 clearly contemplate a disability picture analogous to, but more severe than, the Veteran's statement that he sometimes has difficulty getting out of bed, such a symptom is not exceptional in its nature or severity when compared to the schedular criteria.  The Board will also observe that the December 2016 VA examiner found that the Veteran's statements regarding the severity of his symptoms and functional limitations were not consistent with the objective findings, including diagnostic imaging, or with the fact that he generally did not seek treatment for his back condition.  

Because the Veteran's low back disability does not constitute an exceptional or unusual disability picture when compared with the schedular criteria, the issue of whether there are related factors such as marked interference with employment or frequent periods of hospitalization is moot.  See Chudy, 30 Vet. App. at 37-38.  Accordingly, referral of the evaluation of the Veteran's low back disability for extraschedular consideration is not warranted. 

Because the preponderance of the evidence shows that the criteria for a rating higher than 20 percent for the Veteran's low back disability have not been met, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107.  

Radiculopathy of Right Lower Extremity 

The Veteran's radiculopathy of the right lower extremity is rated under Diagnostic Code (DC) 8520, which pertains to disease of the sciatic nerve.  38 C.F.R. § 4.124a.  Under DC 8520, a 10 percent evaluation is assigned for mild incomplete paralysis; a 20 percent evaluation is assigned for moderate incomplete paralysis; a 40 percent evaluation is assigned for moderately severe incomplete paralysis; and a 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy.  Id.  A maximum 80 percent evaluation is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. § 4.124a.

The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a; Note prefacing DC's 8510 through 8730.

As an initial matter, the Board finds that an effective date of May 6, 2016 is warranted for the grant of the separate 20 percent rating for right lower extremity radiculopathy.  That date coincides with the effective date of the award of the 20 percent rating for the Veteran's low back disability, which was the date of claim for an increased rating, as determined by the agency of original jurisdiction.  See 38 C.F.R. § 3.400 (concerning effective dates).  In this regard, a September 2016 private physical therapy record notes that the Veteran had lumbar radicular symptoms with dermatomal numbness.  In the August 2017 private medical assessment, Dr. Bash found that the Veteran's low back disability was manifested by radiculopathy.  In the January 2020 examination report, the examiner noted that the Veteran has degenerative disc disease of the lower lumbar area documented by a May 2009 magnetic resonance imaging study (MRI), and his right lower extremity radiculopathy is medically consistent with a progression of his degenerative disc disease causing impingement of the nerve roots in the lumbar spine.   

Although the December 2016 VA examiner found that the Veteran's low back disability was not manifested by radiculopathy at the time, that examiner also found that the Veteran did not cooperate with efforts to obtain accurate examination results.  Since lumbar radicular symptoms are documented as early as September 2016, the Board finds that the December 2016 examination report does not alter the conclusion that the Veteran's low back disability has been manifested by right lower extremity radiculopathy since at least the May 2016 date of claim. 

The Board finds that the criteria for a rating higher than 20 percent have not been met.  The January 2020 VA examination report reflects that on muscle strength testing, right hip flexion, right knee extension, and right ankle plantar flexion exhibited normal strength (5/5).  There was no atrophy.  A reflex examination showed a normal (2+) reflex in the right knee, and a hypoactive (1+) reflex in the right ankle.  A sensory examination showed normal sensation in the upper anterior thigh and the thigh/knee of the right lower extremity.  It showed decreased, but not absent, sensation in the lower leg/ankle and foot/toes.  In terms of symptoms of radiculopathy, the Veteran had moderate intermittent pain (usually dull), mild paresthesias and/or dysesthesias, and mild numbness of the right lower extremity.  The examiner characterized the Veteran's radiculopathy as moderate.  

Based on the January 2020 VA examination report, the Board finds that the criteria for a rating higher than 20 percent for the Veteran's right lower extremity radiculopathy have not been met.  The Veteran had normal strength in the right lower extremity, no atrophy, normal reflexes in the right knee, and mild to moderate symptoms of numbness, paresthesias and/or dysesthesias, and intermittent pain.  He had decreased, but not absent sensation in the lower leg/ankle and foot/toes.  He had a normal reflex in the right knee, and a hypoactive but not absent reflect in the right ankle.  These findings more closely approximate moderate incomplete paralysis rather than moderately severe incomplete paralysis under DC 8520.  There are no examination findings or reported symptoms indicative of moderately severe incomplete paralysis.  

In April 2020 correspondence, the Veteran, through his representative, asserted that the January 2020 examination report is inadequate, since it did not contain "moderately severe" as an option for the examiner to consider in the section asking the examiner to indicate the severity of the radiculopathy.  The only option after "moderate" was "severe" in the report template.  The Board finds that the absence of "moderately severe" as an option for the examiner to select does not in itself render the examination report inadequate.  The determination of whether the Veteran's radiculopathy has satisfied the criteria for a rating of 40 percent based on moderately severe incomplete paralysis under DC 8520 is ultimately a legal determination for the Board to make, regardless of the examiner's characterization of the overall severity.  In this case, the examination findings themselves clearly show that the Veteran's radiculopathy has been no more than moderate in severity.  A finding of "moderately severe" would be inconsistent with normal strength, no atrophy, reduced but not absent reflexes and sensation, and mild to moderate symptoms.  The record does not otherwise show that the Veteran has had functional impairment of the right lower extremity more severe than what is contemplated by a 20 percent rating for moderate incomplete paralysis.  Indeed, the rating schedule instructs that when involvement is wholly sensory, the rating assigned should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a; Note prefacing DC's 8510 through 8730.  Here, apart from the hypoactive reflex of the ankle, which is not shown to cause any functional impairment, the Veteran's radiculopathy is wholly sensory.  Accordingly, the sole fact that "moderately severe" was not an option in the template of the examination report does not render it inadequate.  In sum, the criteria for a rating of 40 percent based on moderately severe incomplete paralysis have not been met.  

As the record shows that the Veteran's right lower extremity radiculopathy has not been manifested by marked muscular atrophy or by complete paralysis of the sciatic nerve, the criteria for ratings of 60 percent and 80 percent have also not been satisfied.  See 38 C.F.R. § 4.124a, DC 8520.  

Because the preponderance of the evidence shows that the criteria for a rating higher than 20 percent for the Veteran's radiculopathy have not been met, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107.

Right Shoulder Disability

The Veteran's right shoulder disability is evaluated under Diagnostic Code (DC) 5201, which pertains to limitation of motion of the arm.  38 C.F.R. § 4.71a.  The ratings assigned under DC 5201 differ depending on whether the disability involves the major (dominant) or minor (non-dominant) extremity.  The Veteran's right arm is his major extremity, according to the December 2016 VA examination report.  See 38 C.F.R. § 4.69.  Thus, the ratings assigned for limitation of motion of the major upper extremity apply.  

Under DC 5201, as applicable to the major upper extremity, a 20 percent rating is assigned for limitation of motion of the arm to shoulder level; a 30 percent rating is assigned for limitation of motion to midway between the side and shoulder level; and a 40 percent rating is assigned for limitation of motion to 25 degrees from the side.  38 C.F.R. § 4.71a.

VA regulation defines normal range of shoulder motion as forward elevation (flexion) from 0 to 180 degrees; abduction from 0 to 180 degrees; internal rotation from 0 to 90 degrees; and external rotation from 0 to 90 degrees.  38 C.F.R. § 4.71, Plate I.  Lifting the arm to shoulder level means lifting it to 90 degrees.  See id.  

Limitation of motion under DC 5201 may be compensated based on limitation of abduction or limitation of flexionthe two planes of movement involving lifting the arm from the sidewhichever would afford the higher rating.  Yonek v. Shinseki, 722 F.3d, 1355, 1358-59 (2013) (citing Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003)).  However, separate ratings for both limitation of abduction and flexion are not available under this diagnostic code.  Id. (holding that "the plain language of [DC] 5201... allows only a single rating for 'limitation of motion of' an arm").

The December 2016 VA examination report reflects that the Veteran reported flare-ups in the right shoulder in which he felt imminent subluxation.  The flares occurred every time he moved his shoulder and lasted until he stopped.   He also reported flare-ups of increased pain that occurred a couple of times per week, and lasted for twenty-four hours.  He did not know what precipitated the flares.  They were alleviated by resting.  According to the examination report, the Veteran resisted attempts to conduct range-of-motion testing, and thus range-of-motion testing results were not provided.  The examiner found that review of the claims file showed no evidence that would support the Veteran's statements that he experienced incipient subluxation or instability.  The examiner noted that although the Veteran stated that his shoulder has dislocated multiple times, he had never sought medical care for that symptom, which the examiner found was not medically credible.  The Board however notes that the VA and private treatment records dated in 2009 and 2016 do in fact show a history of complaints of instability and dislocations, with MRI findings of a labral tear. 

The January 2020 VA examination report reflects that the Veteran noted sharp pains with use of the right shoulder in rotation and when picking up objects.  The pain was immediate but then a dull ache for the rest of the day.  He also had intermittent sensations of laxity in the right shoulder.  He treated his shoulder by occasionally taking acetaminophen, and with topical treatment consisting of BioFreeze and ice and heat, as needed.  He also taped his shoulder as needed.  He got flare-ups a couple of times per week with activity, which could last from two to three days at their worst.  They typically lasted the rest of the day.  Regarding functional impairment, the Veteran stated that he tends to avoid picking up things that are more than ten to twenty pounds with his right arm, and will have to use his left arm.  It was hard to pick up his kids.  Every motion that required shoulder rotation was hard.  

The January 2020 VA examination report reflects that on range-of-motion testing, flexion of the Veteran's right shoulder was from 0 to 130 degrees; abduction from 0 to 90 degrees; external rotation from 0 to 30 degrees. and internal rotation from 0 to 30 degrees.  The examiner found that the limited range of motion contributed to functional loss by rendering the Veteran less able to flex and rotate the right shoulder to accomplish tasks.  On repetitive-use testing, there was no additional loss of range of motion of the shoulder.   On Correia testing, passive range of motion was the same as active range of motion.  See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016).  There was no objective evidence of pain in weightbearing or non-weight bearing.  The examiner found that pain and lack of endurance significantly limit functional ability of the right shoulder during flare-ups.  In this regard, the examiner estimated that during a flare-up, flexion of the right shoulder would be from 0 to 120 degrees, abduction from 0 to 80 degrees, external rotation from 0 to 20 degrees, and internal rotation from 0 to 20 degrees.  On muscle strength testing, the Veteran exhibited normal (5/5) strength of the right shoulder in forward flexion and abduction.  There was no muscle atrophy.  He did not have ankylosis of the right shoulder.  The examiner suspected that the Veteran may have a rotator cuff condition.  Instability, dislocation, or labral pathology of the right shoulder was also suspected.  In this regard, the examiner found that the Veteran had a history of infrequent episodes of dislocation (subluxation) of the glenohumeral (scapulohumeral) joint.  With regard to functional impairment, the examiner found that the Veteran's ability to lift with the right shoulder was limited to ten to twenty pounds.  He was also very limited in his ability to reach or lift with the right arm above shoulder level.  

Based on the evidence reviewed above, the Board finds that the criteria for a rating higher than 20 percent under DC 5201 have not been met.  Preliminarily, although the December 2016 VA examination report does not contain the results of range-of-motion testing because the examiner found that the Veteran did not cooperate with attempts to obtain accurate measurements, the Board finds that the results provided in the January 2020 VA examination may be assumed to be representative of the level of disability at the time of the December 2016 VA examination without prejudice to the Veteran.   In this regard, the record does not indicate that there has been improvement in the level of disability between the December 2016 VA examination and the January 2020 VA examination.  Thus, it may be assumed that any range-of-motion findings at the time of the December 2016 VA examination would be the same or better (i.e. they would show a wider range) than the results recorded in the January 2020 VA examination report.  In that report, the examiner found that even during flare-ups, the Veteran's right shoulder flexion would be to 120 degrees, and abduction to 80 degrees.  As lifting the arm to shoulder level means lifting it to 90 degrees, the limitation of flexion to 120 degrees does not satisfy the criteria for a rating of 30 percent, which requires limitation of the arm midway between the side and shoulder level.  Similarly, abduction of the right shoulder to 80 degrees does not satisfy the criteria for a rating of 30 percent, since that range is still much closer to shoulder level than to midway between the side and shoulder level.  Accordingly, the Veteran's limitation of motion of the right shoulder, including when considering functional loss during flare-ups caused by factors such as pain and lack of endurance, has not satisfied the criteria for a rating of 30 percent or higher under DC 5201. 

The Board may not disregard the ameliorative effects of medication in evaluating the Veteran's right shoulder disability.  Jones v. Shinseki, 26 Vet. App. 56, 61 (2012).  The Board has considered the fact that the Veteran self-treats his right shoulder with over-the-counter medication, topical therapies such as BioFreeze, and ice and heat.  The record does not show that absent such treatment his flexion or abduction of the right shoulder would be limited to at least midway between the side and shoulder level.  The Board also observes that the January 2020 examiner estimated that during flare-ups, which presumably occur between treatment with medication and other therapy, or when the effects of such treatment have worn off, the Veteran's flexion and abduction of the right shoulder would still be well above the midway point between the side and shoulder level.  Thus, when considering the ameliorative effects of medication, the criteria for a rating higher than 20 percent have still not been met.   

The Board finds that the criteria for a separate rating of 20 percent under DC 5202 based on recurrent dislocation of the Veteran's right shoulder have been met throughout the period under review.  Under DC 5202, which pertains to other impairment of the humerus, a 20 percent rating is assigned for recurrent dislocation of the humerus at the scapulohumeral joint, with infrequent episodes and guarding of movement only at shoulder level.  In the January 2020 VA examination report, the examiner suspected instability, dislocation, or labral pathology of the right shoulder, and found that the Veteran had a history of infrequent episodes of dislocation (subluxation) of the glenohumeral (scapulohumeral) joint.  The Board finds that this condition has been present throughout the period under review.  Although the December 2016 VA examiner found the Veteran's report of instability to not be credible because he did not seek treatment for it, the VA and private treatment records dated in 2009 and 2016 do in fact show a history of complaints of instability.  Accordingly, a separate rating of 20 percent is assigned for the Veteran's right shoulder instability with recurrent episodes of dislocation by analogy to the rating criteria under DC 5202.  See 38 C.F.R. § 4.20 (providing for analogous ratings).

As the record does not show frequent episodes of recurrent dislocation and guarding of all arm movements, the criteria for a rating of 30 percent under DC 5202 have not been met.  Rather, the Veteran's right shoulder dislocations most closely approximate the criteria for a 20 percent rating under DC 5202.  The Veteran's right shoulder disability has not been manifested by loss of head of the humerus (flail shoulder), nonunion of the humerus (false flail joint), fibrous union of the humerus, or malunion of the humerus with marked deformity.  Thus, the criteria for a rating higher than 20 percent under DC 5202 are not otherwise satisfied. 

The Veteran's right shoulder disability has not been manifested by ankylosis or impairment of the clavicle or scapula.  Thus, DC's 5200 and 5203 are not applicable.  See 38 C.F.R. § 4.71a, DC's 5200 and 5203. 

As noted above, amendments to the section of the rating schedule pertaining to musculoskeletal disabilities went into effect on February 7, 2021.   See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020).  The Board may consider these changes without remand  to the AOJ for consideration in the first instance.  See 38 C.F.R. § 20.904(d)(2).  

The changes to the criteria applicable to the shoulder and arm are essentially clarifying, rather than substantive, changes.  New DC 5201 contains the same rating criteria as the former version, but clarifies that limitation of motion of the arm includes flexion and/or abduction, and that limitation of motion to shoulder level is limitation of flexion and/or abduction to 90 degrees, while limitation midway between side and shoulder level is flexion and/or abduction limited to 45 degrees.  As discussed above, the Board has considered limitation of the Veteran's right arm with respect to both flexion and abduction, and has noted that limitation of motion to shoulder level is limitation to 90 degrees.  Thus, that change does not support assignment of a rating higher than 20 percent.  As the Veteran's right arm flexion and abduction has been found to substantially exceed 45 degrees including during flare-ups, that change defining when limitation of motion is considered to be midway between side and shoulder level also does not support assignment of a rating higher than 20 percent under new DC 5201.  

The only other change in the rating criteria applicable to the shoulder and arm concerns DC 5202.  New DC 5202 contains the same rating criteria as the prior version, but again clarifies that guarding of movement only at shoulder level means flexion and/or abduction at 90 degrees.  Thus, that change does not support assignment of a rating higher than 20 percent under new DC 5202. 

In April 2020 correspondence the Veteran, through his representative, asserts that the evaluation of his right shoulder disability should be referred for extraschedular consideration.  In this regard, he states that the rating criteria do not contemplate the fact that he stated he avoids picking up objects weighing more than ten to twenty pounds.  For the following reasons, the Board finds that referral for extraschedular consideration is not warranted. 

The law pertaining to extraschedular consideration is discussed above in the section addressing the Veteran's low back disability.  The Veteran's difficulties with picking up objects with his right arm are not shown to be an exceptional or unusual disability picture vis-à-vis the criteria for a 20 percent rating under DC 5201, which contemplate reduced range of motion of the arm.  In this regard, the January 2020 VA examiner found that the Veteran's limited range of motion contributed to functional loss by rendering him less able to flex and rotate the right shoulder to accomplish tasks.   With regard to severity, the January 2020 VA examiner estimated that even during flare-ups or with repeated use over time, the Veteran's right arm flexion and abduction would still be well above limitation to midway between side and shoulder level, which is the minimum degree of limitation that must be established to meet the criteria for the next higher rating i.e., a 30 percent rating.  See 38 C.F.R. § 4.71a.  Thus, the nature and severity of the Veteran's limitations with regard to picking up objects weighing more than ten to twenty pounds, which are among the types of functional impairment in various contexts that the range-of-motion testing is designed to measure, are contemplated by the rating criteria.  Cf. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding that the "rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure").  

Because the Veteran's right shoulder disability does not constitute an exceptional or unusual disability picture when compared with the rating criteria, the issue of whether there are related factors such as marked interference with employment or frequent periods of hospitalization is moot.  See Chudy, 30 Vet. App. at 37-38.  Accordingly, referral of the evaluation of the Veteran's right shoulder disability for extraschedular consideration is not warranted. 

In sum, a rating higher than 20 percent under DC 5201 for the Veteran's right shoulder disability is denied, but a separate rating of 20 percent under DC 5202 is granted.  Because the preponderance of the evidence shows that the criteria for a rating higher than 20 percent under DC 5201 and higher than 20 percent under DC 5202 have not been met, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107.   

PTSD 

During the period under review, the Veteran's PTSD has been assigned a 50 percent rating effective November 8, 2016, the date of claim, and a 70 percent rating effective October 8, 2019, which is the date of a VA examination report determined by the AOJ to show a more severe degree of disability that warranted assignment of a 70 percent rating.  For the following reasons, the Board finds that the criteria for a rating higher than 50 percent prior to October 8, 2019, and higher than 70 percent since that date, have not been met during the period under review. 

A. Rating Criteria

The Veteran's PTSD is rated under Diagnostic Code (DC) 9411, which pertains to PTSD.  38 C.F.R. § 4.130.  Almost all mental health disorders (with exceptions not applicable here) are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment.  Id.  

Under the General Rating Formula, a 10 percent disability rating requires:

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 

A 30 percent disability rating requires: 

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events).

A 50 percent disability rating requires:

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent disability rating requires:

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting; inability to establish and maintain effective relationships.)

A 100 percent disability rating requires:

Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 

 Id.

The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id.  Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V).  Id. at 443; see 38 C.F.R. § 4.130. 

If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned.  Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). 

In sum, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms.  Vazquez-Claudio, 713 F.3d at 118. 

While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126(b).

B. Analysis

 

A June 2016 VA treatment record reflects that the Veteran endorsed only mild symptoms of PTSD, and indicated that they did not bother him anymore.  He endorsed an occasional depressed mood, but denied current or historical suicidal ideation, intent, or plan.  He stated he was most concerned about anger and irritability, which he believed were related to high levels of pain.  He denied anhedonia, fatigue, psychomotor disturbance, guilt/worthlessness, appetite disturbance, concentration difficulty, and suicidal ideation.  He endorsed significant difficulty with pain, including pain in his right foot, right knee, right  shoulder, lower back, and left knee.  He indicated that the pain had caused him to reduce his work schedule from forty hours weekly to twenty hours weekly, in order to "account for time off due to significant pain."  However, the examiner later stated in the report that while at the time of intake the Veteran stated that pain was the factor that limited his work the most, "at the time of feedback he noted it was more depression/anxiety that was the limiting factor."  Regarding social activities, hobbies, and interests, he continued to be involved in community service and the Rotary Club.  His hobbies included golf, hiking, and exercise.  He endorsed having strong social support from his family and through work/community organizations.  On mental status and behavioral observations, he was adequately groomed, and his speech was normal in rate and volume.  His thoughts were logical, linear, and goal-directed.  There was no indication of a thought anomaly or auditory or visual hallucinations.  His mood was stable and euthymic.  His affect was consistent with his mood.  His judgment appeared intact. 

A VA examination was performed in November 2016.  The examination report reflects that the Veteran had been married for six years.  He had one son from that relationship, age two, with whom he had a "good/positive" relationship.  He stated that his marital relationship had "been better" in the past.  In this regard, he described struggling with low mood and anhedonia related to spending time socially with family and others.  He also felt detached and cut off from others at times.  He had few friends, with one close friend from active service with whom he maintained bi-monthly contact.  He generally did not spend time socially with others with the exception of his wife's friends (another couple) on occasion.  He worked as a chiropractor, and was the sole or primary owner of his practice, which included two employees.  He described his occupational problems as mood problems (anhedonia), anxiety, and physical and mental exhaustion.  He stated that if he works two days in a row, he was physically and mentally exhausted, and felt depleted by the end of the week.   He reportedly worked a total of two and a half days per week, spread throughout the week.  He had difficulty concentrating, which interfered with his ability to accomplish job duties in a timely manner.  He denied current mental health treatment or taking psychotropic medication.  He felt he was able to manage his symptoms on his own.  

The November 2016 VA examination report reflects that on examination, the Veteran's dress, grooming, and hygiene were appropriate.  His speech volume, rate, articulation, and prosody were within normal limits.  He appeared oriented in all spheres.  His thought content was unremarkable for hallucinations, delusional behavior, or loose associations.  His thought process was logical, coherent, and goal-directed.  His insight was normal.  His mood was described as "gloomy," and as fluctuating over the past year with fleeting moments or days of feeling in a good or positive mood.  His affect was mildly blunted and mood-congruent.   

The November 2016 examiner found that for rating purposes, the Veteran's PTSD symptoms were as follows: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  

With regard to occupational and social impairment, the November 2016 examiner found that the Veteran's PTSD symptoms caused mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  The examiner explained in this regard that there was impairment in occupational functioning evidenced in the Veteran's reports of mental and physical fatigue.  However, despite such reports, he completed his undergraduate degree and a doctoral program in chiropractic medicine, and started his own chiropractic practice.  The examiner further noted that while the Veteran related that he was only able to manage working two and a half days per week, he identified physical pain and exhaustion as at least part of what contributed to his occupational impairment.  

A July 2017 VA treatment record states that the Veteran did not have suicidal ideation.  A July 2017 suicide risk screening dated the following day reflects that he responded "yes" to feeling hopeless about the present or future, but responded "no" to having thoughts about taking his own life, and responded "no" to ever having a suicide attempt. 

A February 2018 VA Disability Benefits Questionnaire (DBQ) filled out by a private psychologist, B. Valette, Ph.D., which is based on a review of the claims file and (it seems) an interview with the Veteran, finds that, for rating purposes, his PTSD was manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control such as unprovoked irritability with periods of violence.  With regard to occupational and social impairment, Dr. Valette found that the Veteran's PTSD symptoms caused deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.  

In a February 2018 narrative report that accompanies the DBQ, Dr. Valette reviewed the findings in the November 2016 VA examination report, and stated that the examiner who conducted that examination noted in the report symptoms that fit the criteria for ratings of 50 percent and 70 percent.  Dr. Valette also observed that the November 2016 VA examiner's statement that the Veteran appeared to have built and maintained a successful practice was inaccurate, as he only worked for two and a half hours per week.  According to the February 2018 report, the Veteran stated that he has "thoughts of dying all of the time," and that he had "thought of ways to kill [himself]" but did not "feel like [he] "could ever do it."  Dr. Valette also noted that in the November 2016 VA examination report, in the section addressing the diagnostic criteria for PTSD, the examiner checked the box next to the pre-printed language stating: "Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects." 

A July 2018 VA treatment record reflects that the Veteran reported he experiences a low mood on most days and for most of the time, anhedonia, anergia, lethargy, psychomotor retardation, lack of appetite, and difficulties sleeping several days per week.  He indicated that he first had depression in adolescence, and that it has affected him intermittently since that time.  He perceived that the depression had a significant and negative impact on his occupational functioning and engagement in recreation.  He described his family relations with his wife and two children (ages one and four) as strong and supportive.  He indicated that these relationships helped him stay engaged in activities of daily living.  In a safety risk assessment, he denied feeling hopeless about the future, denied thoughts about taking his own life, and denied ever having a suicide attempt.  On mental status examination, he was oriented x 3, exhibited appropriate grooming, his affect was congruent with mood, his speech was at a normal rate and rhythm, his thought processes were organized, linear, and without impairment, his insight was good, and his judgment was good. 

A VA examination was performed in October 2019.  The examination report reflects that the Veteran had been married to his current wife since 2010, with whom he had two children, ages five and two.  He reported that his family life was going well.  His relationship with his children was going well, while his relationship with his wife was "rocky."  They had been arguing more in the past year, although he could not explain what had changed.  He noted he was more irritable, and his wife was critical of him.  He stated that on a typical day, he got his son ready for school and walked him to school.  After that, he sometimes went into work.  On days he did not go into work, he wrote and did household chores.  His closest friend lived in a different state.  His support network consisted of his parents.  In his free time, he took his children to the park and entertained them as much as he could.  He continued to maintain his chiropractic practice.  He had about three employees.  On a good week he was in the office for fifteen hours.  He engaged in what he called "self-care," which he described as walking around his neighborhood, doing deep breathing exercises, and reading a book.  He stated that his mood varies from depression to intense anxiety.  His sleep was chronically disrupted.  He felt emotionally detached from the people he loved.  He had recurrent thoughts of death, described as feeling he could die at any time due to some random event.  

The October 2019 VA examination report reflects that on examination, the Veteran was alert and grossly oriented to person, place, time, and the purpose of the evaluation.  His grooming and hygiene were intact.  His speech and language were within normal limits.  His recent and remote memory and attention were grossly intact.  His mood was dysphoric, with a congruent flat affect.  His thought process was logical and linear.  His thought content was within normal limits with no evidence of delusions or hallucinations.  His insight and judgment appeared intact. He denied suicidal or homicidal ideations, preparatory behaviors, intent, or plans.  The examiner found that, for rating purposes, the Veteran's PTSD symptoms were as follows: depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships.  

Regarding occupational and social impairment, the October 2019 examiner found that the Veteran's PTSD symptoms caused reduced reliability and productivity.  The examiner stated that the Veteran's symptoms had worsened since the last examination.  He endorsed a daily depressed mood, anhedonia, lack of motivation to engage in any activities outside his home, psychomotor agitation, and feelings of low self-worth.  His symptoms of depression arose from a worsening of his PTSD and were secondary to PTSD, according to the examiner.

The Board finds that the criteria for a rating higher than 50 percent prior to October 8, 2019 have not been met.  The Veteran's symptoms of depression, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships are symptoms specifically listed in the criteria for ratings of 30 percent and 50 percent, and as such do not satisfy the criteria for a 70 percent rating, which require more severe symptoms.  In other words, by definition, these symptoms neither match, nor are equivalent in severity, frequency, and duration to, the symptoms listed for a 70 percent rating.  

The February 2018 DBQ and October 2019 VA examination report reflect findings that the Veteran's PTSD also caused an inability to establish and maintain effective relationships.  However, the record shows that he has two young children he is helping to raise, and with whom he described having a good or positive relationship, continued to be married although he described his relationship as "rocky," had a supportive relationship with his parents, and had at least one close friend, although that friend lived in another state.  He also had two employees who worked for him in his chiropractic business.  Thus, the findings that the Veteran had an inability to establish and maintain effective relationships are not based on an accurate factual premise, and thus are discounted.  Moreover, putting aside the fact that a 70 percent rating has already been granted by the AOJ effective October 8, 2019 based on the examination report of that date, that report in fact reflects the conclusion that the Veteran's occupational and social impairment was best characterized as reduced reliability and productivity, which correlates with the criteria for a 50 percent rating rather than a 70 percent rating.  That examiner also noted that the Veteran's symptoms had worsened since the November 2016 VA examination report. 

The November 2016 VA examination report describes symptoms and functional impairment that at most satisfy the criteria for a 50 percent rating, although the examiner found occupational and social impairment most closely corresponding to a 10 percent rating.  Although the Veteran has stated he only works in his profession as a chiropractor about two and a half days per week, he also ascribed his limitations to physical factors, as noted by that examiner.  Indeed, the June 2016 VA treatment record notes that the Veteran attributed his limited work hours to pain, including in his back, foot, shoulder, and knees, although he later cited depression and anxiety as primary factors as well.  Thus, the sole fact that his work hours are limited does not in itself indicate that his PTSD symptoms are the main cause of his reduced hours, although they contribute to some extent to his occupational impairment. 

The Board finds that the February 2018 DBQ and accompanying report authored by Dr. Valette do not put in approximate balance the issue of whether the Veteran's PTSD satisfied the criteria for a rating higher than 50 percent prior to October 8, 2019.  Dr. Valette indicated that the Veteran's PTSD was manifested, in part, by suicidal ideation.  However, both the November 2016 and October 2019 VA examination reports state that the Veteran did not endorse symptoms of suicidal ideation.  Moreover, the VA treatment records show that in suicide risk screenings, the Veteran has consistently denied suicidal ideation, including in July 2017, less than seven months before the February 2018 DBQ, and in July 2018, less than six months following that report.  These inconsistencies put into serious question the credibility of the suicidal ideation recorded in the February 2018 DBQ.  

That said, the Board has considered the fact that the February 2018 report authored by Dr. Valette reflects the Veteran's statement that he had "thought of ways to kill [himself]" but did not "feel like [he] "could ever do it."  The Board finds that this alone does not establish that the criteria for a 70 percent rating were satisfied.  In that regard, suicidal ideation, regardless of whether there is "evidence of more than thought or thoughts," is a symptom corresponding to a 70 percent rating.  Bankhead v. Shulkin, 29 Vet. App. 10, 21-22 (2017); see 38 C.F.R. § 4.130, General Rating Formula.  However, in addressing the symptom of suicidal ideation, the United States Court of Appeals for Veterans Claims (Court) observed that the "presence or absence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level."  Id. at 22 (citing Vazquez-Claudio, 713 F.3d at 115) (emphasis in original).  That observation is in keeping with, and indeed cites to, the holding in Vazquez-Claudio that to satisfy the criteria for a given rating under the General Rating Formula, the symptom or symptoms must also cause the degree of occupational and social impairment required of that rating. 

In this case, the bare conclusion by Dr. Valette that the Veteran's PTSD caused deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood is not supported by an explanation.  Although he has described his relationship with his wife as "rocky," observing in that regard that he could be irritable and also felt that she was critical of him, he had a good relationship with his children and parents.  As recently as July 2018 he described his family relations as strong and supportive.  Moreover, deficiencies have not been noted with respect to the Veteran's thinking or judgment.  Further, Dr. Valette emphasized the Veteran's limited work hours, but as explained above, the Veteran has cited physical pain as a substantial factor in his reducing his work hours, which Dr. Valette's opinion does not account for.  Finally, the VA examiners had an opportunity to examine the Veteran in addition to reviewing the claims file, while Dr. Valette's opinion is based almost exclusively on a review of the claims file (whether he also interviewed the Veteran is somewhat unclear, but if so, there is almost no discussion of what was said in that interview).  Accordingly, Dr. Valette's conclusion regarding the Veteran's level of occupational and social impairment has little probative value, and is outweighed by other evidence, including the VA examination reports and VA treatment records showing a less severe level of occupational and social impairment corresponding to a 50 percent rating or lower, as these are based in part on direct evaluation of the Veteran and contain more persuasive discussions that are more in accordance with the record as a whole. 

Thus, because the suicidal ideation found in Dr. Valette's February 2018 report, but not noted elsewhere, is not shown to cause the level of occupational and social impairment corresponding to a 70 percent rating, the criteria for that rating have not been met. 

With regard to Dr. Valette's finding in the February 2018 DBQ that the Veteran's PTSD was manifested by impaired impulse control such as unprovoked irritability with periods of violence, no explanation was provided.  The only apparent basis for that finding is Dr. Valette's observation in the accompanying narrative report that the November 2016 VA examiner checked the box in the template for "Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects."  However, the examiner checked that box with regard to assessing whether the criteria for a PTSD diagnosis were satisfied, and not as a clinical finding with regard to current symptoms.  The Veteran himself did not relate, and the examiner did not describe in the narrative, any such verbal or physical aggression.  Neither does the February 2018 DBQ and accompanying narrative report by Dr. Valette.  Accordingly, the Board finds that Dr. Valette's finding that the Veteran's PTSD was manifested by impaired impulse control such as unprovoked irritability with periods of violence is not probative, and outweighed by the VA examination reports, both of which find that the Veteran's PTSD was not manifested by that symptom.  Further, as explained above, the Board finds that the Veteran's PTSD has not been manifested by the level of occupational and social impairment required for a 70 percent rating prior to October 8, 2019, and that Dr. Valette's finding on that issue is not probative. 

Accordingly, for the period prior to October 8, 2019, the preponderance of the evidence shows that the criteria for a rating higher than 50 percent were not met.  

The criteria for a rating of 100 percent have also not been met.  To meet the criteria for that rating, the evidence must show total occupational and social impairment.  The record shows that the Veteran has worked throughout the period under review, albeit with limited hours, has continued in a marital relationship with his current spouse, and has been helping to raise two young children.  Thus, the record shows he does not have total occupational and social impairment.  He has also reported having some friends and being involved in community service and the Rotary Club, which further weighs against total social impairment.  But even if that is no longer the case, his family relations alone show he does not have total social impairment.   

The fact that the Veteran's PTSD has not been manifested by total occupational and social impairment is a sufficient basis to conclude that the criteria for a 100 percent rating are not satisfied.  The Board nevertheless also observes that the VA examination reports and February 2018 private psychiatric evaluation by Dr. Valette reflect findings of symptoms that readily correspond to symptoms listed for ratings of 70 percent or lower, and thus by definition are not equivalent in severity, frequency, or duration to the symptoms listed for a 100 percent rating.  The record does not show that the Veteran's PTSD has been manifested by any of the symptoms listed for a 100 percent rating.  On the contrary, mental status examinations consistently show adequate grooming, full orientation, normal thought processes and content, and no delusions or hallucinations.  He has not been found to pose a danger of hurting himself or others.  His memory impairment has been characterized as mild, with no evidence of memory loss for names of close relatives, his own occupation, or his own name.  Accordingly, as the Veteran's PTSD does not cause total occupational and social impairment, and is not manifested by the symptoms expressly listed for a 100 percent rating or symptoms equivalent in severity, frequency, and duration to such symptoms, the criteria for a 100 percent rating have not been met.  See 38 C.F.R. § 4.130, DC 9411. 

Because the preponderance of the evidence weighs against a rating higher than 50 percent prior to October 8, 2019, and higher than 70 percent since that date, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107.

REASONS FOR REMAND

1. Entitlement to service connection for a left knee disability is remanded.

The Veteran claims service connection for a left knee disability as secondary to his service-connected right knee disability.  In this regard, he has stated that he believes it may be due to "compensating" for his right knee disability.  See May 2009 Private Treatment Record.  

The Board finds that remand of the claim for service connection for a left knee disability is warranted for a new medical opinion.  A VA examination was performed in April 2016.  In a May 2016 opinion, the examiner stated that the medical record does not establish a chronic left knee condition, which is a "necessary underpinning for there to be secondary service connection."  However, the Veteran has reported ongoing pain in his left knee.  For VA compensation purposes, the term "disability" is defined as functional impairment of earning capacity.   Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018).  A showing of underlying objective pathology is not necessarily required.  Id.  

Further, the examiner wrote that there is "no objective evidence to support his claim that [his] right knee problem would cause a left knee problem."  The examiner stated by way of explanation that "[a]s opposed to the commonly-held idea that 'favoring one leg' causes orthopedic conditions in other parts of the body, there is no clear evidence from review of orthopedic literature to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in . . . partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than 5 centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious lurching type of gait to have an impact on the opposite or uninjured leg."  The examiner added that the abnormal gait would have to be present over a period of years.  

The Board finds that the May 2016 opinion is not sufficient to make an informed decision.  Service connection on a secondary basis may be established based on causation or aggravation.  See 38 C.F.R. § 3.310(b).  The May 2016 opinion does not address the issue of whether the Veteran's left knee condition may have been aggravated by placing undue weight on his left knee as a result of his right knee disability.  The Board also does not find the VA opinion clear as to why placing more weight than normal on the left knee to reduce weight on the other knee would not be sufficient to result in left knee problems.  

Accordingly, a new opinion is warranted that takes into account the Veteran's left knee pain, notwithstanding the absence of objective pathology, addresses the issue of aggravation, and directly addresses whether placing excess weight on the left knee may have proximately caused or aggravated a left knee condition. 

2. Entitlement to service connection for a right hip disability is remanded.

The Board finds that remand of the claim for service connection for a right hip disability is warranted for a new medical opinion.  A VA examination was performed in April 2016.  In the May 2016 opinion and June 2016 addendum, the examiner found that it is less likely than not that the Veteran had a right hip disability directly related to service (such as from the impact of parachute jumps) or secondary to service-connected disabilities because although the Veteran reported subjective pain and demonstrated limited range of motion of the hip, there was no "clinical evidence of a chronic or disabling hip condition."  

The VA medical opinions are not sufficient to make an informed decision.  For VA compensation purposes, the term "disability" is defined as functional impairment of earning capacity.   Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018).  A diagnosis of underlying objective pathology is not necessarily required.  Id.  The examiner's opinion does not consider whether the Veteran has a disability of the right hip in terms of functional impairment of earning capacity, even if objective pathology is not diagnosed.  Moreover, a September 2016 private physical therapy record states that the Veteran presented with significant loss of normal range of motion of the hip, and that joint tests were positive for probable anterior impingement syndrome with possible labral involvement.  Thus, there is evidence of a current right hip disability. 

Accordingly, a new VA medical opinion must be obtained that considers the evidence of a current disability.  

3. Entitlement to an initial rating higher than 10 percent for a right knee disability is remanded.

In May 2016, the Board remanded the issue of entitlement to a higher initial rating for the Veteran's right knee disability for further action by the AOJ, including readjudication of that issue.  Since then, a December 2016 VA examination of the Veteran's knee was performed.  However, the issue has not been readjudicated following the Board's remand.  Accordingly, remand is warranted for the AOJ to readjudicate this matter, with consideration of the December 2016 VA examination report in the first instance. 

4. Entitlement to TDIU is remanded.

The Board remanded the issue of entitlement to TDIU in May 2016.  It instructed the AOJ, in part, to ask the Veteran to complete and return a VA Form 21-8940, to arrange for a VA examination, and then to adjudicate the issue after completing any other development deemed appropriate.  The Veteran has since submitted a completed VA Form 21-8940 in November 2016, and examinations have been performed that address his occupational impairment.  However, the AOJ has not yet adjudicated this issue.  Accordingly, it is remanded to the AOJ to adjudicate it in the first instance.  

The matters are REMANDED for the following action:

1. Obtain a new VA medical opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a left knee disability that has been caused or aggravated by his service-connected right knee disability.  The examiner must separately address the issues of causation and aggravation.  If the examiner finds that the record does not establish a current left knee condition, the examiner should consider whether the Veteran's left knee pain nevertheless constitutes a disability defined as functional impairment of earning capacitythat is secondary to his right knee disability. 

2. Obtain a new VA medical opinion regarding the issue of service connection for a right hip disability that addresses the following: 

(a.) Whether it is at least as likely as not that the Veteran's right hip condition is linked to a disease, injury, or event in active service, including the impacts from parachute jumps and/or a motor vehicle accident (see June 2016 VA medical opinion instructions). 

(b.) Whether it is at least as likely as not that the Veteran's right hip condition has been caused or aggravated by his service-connected right knee disability and/or low back disability.  The examiner must separately address the issues of causation and aggravation.  

The examiner is advised that while the April 2016 VA examination report reflects a finding that the Veteran did not have a right hip diagnosis, a September 2016 private physical therapy record states that the Veteran presented with significant loss of normal range of motion of the hip, and that joint tests were positive for probable anterior impingement syndrome with possible labral involvement.  Moreover, the April 2016 VA examination report reflects findings of limited range of motion of the right hip with pain noted in flexion, abduction, and internal rotation.  The examiner must therefore consider whether the Veteran has a right hip disability based on functional impairment of earning capacity, even if objective pathology has not been diagnosed. 

3. Readjudicate the issue of entitlement to a higher initial rating for the Veteran's right knee disability, with consideration of all pertinent evidence added to the file since the February 2015 SSOC, including the December 2016 VA examination report.  If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

   (Continued on following page)

 

4. Adjudicate the issue of entitlement to TDIU.  If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review

 

 

P.M. DILORENZO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Rutkin, 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.