Citation Nr: 22016697 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 10-22 672A DATE: March 23, 2022 ORDER A 30 percent disability rating, but no higher, for left shoulder tendinitis is granted. A disability rating in excess of 20 percent for a low back disability is denied. For the period prior to August 26, 2021, a 10 percent rating, but no higher, for radiculopathy of the left lower extremity is granted. For the period prior to August 26, 2021, a 10 percent rating, but no higher, for radiculopathy of the right lower extremity is granted. For the period from August 26, 2021, a rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. For the period from August 26, 2021, a rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. A rating in excess of 50 percent for obstructive sleep apnea is denied. FINDINGS OF FACT 1. The Veteran's left (nondominant) shoulder is manifested by pain and weakness productive of the functional equivalent of limitation of left arm motion to 25 degrees from the side. 2. The Veteran's low back disability has manifested as forward flexion of the thoracolumbar spine to greater than 30 degrees, but not greater than 60 degrees. The Veteran's low back disability is not manifested by limitation of forward flexion of the thoracolumbar spine to 30 degrees or less and was not manifested by ankylosis of the entire thoracolumbar spine or ankylosis of the entire spine, even when considering additional functional loss due to flareups and pain on use. 3. Prior to August 26, 2021, the Veteran's radiculopathy of the left and right lower extremities was productive of mild impairment due to occasional pain. 4. From August 26, 2021, the Veteran's radiculopathy of the left and right lower extremities has been manifested by pain, parasthesias/dysthesias, and numbness productive of, at worst, moderate impairment. 5. The Veteran's sleep apnea did not result in a tracheostomy or chronic respiratory failure with carbon dioxide retention or cor pulmonale. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability rating, but no higher, for left shoulder tendinitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.69, 4.71a, Diagnostic Code 5201. 2. The criteria for a disability rating in excess of 20 percent for the Veteran's low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5242. 3. For the period prior August 26, 2021, the criteria for a 10 percent rating, but no higher, for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. For the period prior August 26, 2021, the criteria for a 10 percent rating, but no higher, for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. For the period from August 26, 2021, the criteria for a rating higher than 20 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. For the period from August 26, 2021, the criteria for a rating higher than 20 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 7. The criteria for a disability rating greater than 50 percent for OSA are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.97, Diagnostic Code 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2004 to November 2005, with additional National Guard and Reserve service. This matter is before the Board following his appeal of January 2009 and November 2017 rating decisions. In a November 2017 decision, the Board, in pertinent part, denied entitlement to an increased rating for the Veteran's left shoulder tendinitis. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In May 2018, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR), remanding the issue back to the Board for action consistent with the JMPR. The Board then remanded the appeal in February 2019. Increased Ratings Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. 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, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. In addressing the Veteran's claim, the Board first notes that, effective February 7, 2021, VA revised the criteria for evaluating disabilities of the musculoskeletal system. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). This amendment affected the evaluations of shoulder and spine disabilities. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. In the instant case, the Board finds the pre-2021 amendment criteria more favorable to the Veteran for both the shoulder and the spine. Accordingly, it will apply them for the entirety of the claim periods. 1. Left Shoulder The Veteran is seeking an increased initial rating for his left shoulder tendinitis (herein after "left shoulder disability"). His disability has been assigned a 20 percent rating throughout the entire appeal period pursuant to Diagnostic Code 5201. 38 C.F.R. § 4.71a. Turning to the relevant rating criteria in effect prior to February 7, 2021, in order to warrant a higher 30 percent rating under DC 5201, the evidence must show that the Veteran's left (nondominant) arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. A higher rating is also available under DC 5200 for intermediate ankylosis between favorable and unfavorable, and under DC 5202 for humerus impairment with fibrous union. Id. Under the revised criteria in effect since February 7, 2021, a higher 30 percent rating is warranted under DC 5201 where the left (nondominant) arm is limited in flexion and/or abduction to 25 degrees from the side. Of note DC 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Turning to the merits of the Veteran's claim, following a review of the record, the Board finds that, when reasonable doubt is resolved in favor of the Veteran, a higher 30 percent rating is warranted based on evidence supporting that the Veteran experiences the functional loss equivalence of left arm motion limited to 25 degrees from the side. As an initial matter, the evidence of record shows that the Veteran is right-handed, as was confirmed most recently at a March 2020 VA examination. Thus, the service-connected left shoulder is considered the nondominant side. 38 C.F.R. § 4.69. The evidence of record also shows that Veteran's left arm motion is limited to 30 degrees, though no less. In this regard, VA examinations in November 2011, September 2015, and March 2020 each showed left arm shoulder flexion and/or abduction limited to 30 degrees during initial range of motion testing and/or after repetitive use. Similarly, the clinical evidence fails to show left shoulder motion limited to 25 degrees from the side but does show limited motion with pain beginning at 30 degrees in flexion and abduction. See, e.g., March 2008, January 2011, April 2011, and July 2011 VA treatment Notes. Furthermore, the clinical evidence shows, at times, limited grip strength on the left and swelling in the left shoulder. See January 2011 and July 2011 VA treatment notes. Notably, beyond limitation of motion, the clinical evidence and VA examinations also document a progressive decline in the Veteran's left shoulder motor strength. For example, during April 2011 VA treatment, left shoulder motor strength was full at 5/5. However, during the November 2011 and September 2015 VA examinations, left shoulder motor strength was reduced to 4/5 in abduction and forward flexion. More recently, in March 2020, left shoulder motor strength was 3/5 in abduction and forward flexion. The Board finds that the evidence of increasing weakness in the left arm, particularly when considered with the evidence of limitation of left shoulder motion to 30 degrees in flexion and abduction, amounts to functional loss commensurate with the criteria for the higher 30 percent rating. See Chavis v. McDonough, 34 Vet. App. 1, 7 (2021) (stating the factors may show "a higher evaluation than one based solely on limited motion if a claimant demonstrates functional loss equivalent to that contemplated by the higher evaluation"). As such, the Board finds that a higher 30 percent rating is warranted. However, absent evidence of ankylosis or humerus impairment, to include fibrous union, there is no basis upon which to assign any higher or separate rating. See 38 C.F.R. § 4.71a, DCs 5200 and 5202. Here, November 2011, September 2015, March 2020, and August 2021 VA examination reports and evidence of imaging noted in the clinical records confirm that there is no humerus involvement associated with the Veteran's left shoulder tendinitis, to include episodes of dislocation, subluxation, or fibrous union. Additionally, the Veteran has not alleged nor does the evidence show that his left shoulder lacks all motion or is ankylosed to any degree such that a higher rating is warranted. Instead, the examinations and clinical evidence show retained left shoulder motion and, while the Veteran reports pain associated with flare-ups and a limited ability to reach overhead or carry heavy objects, he has not reported that he is completely unable to move his left shoulder. Thus, neither a separate rating nor a rating greater than 30 percent is warranted at any time. As a final matter, the Board is cognizant that the March 2020 VA examiner indicated that after reviewing the available medical records, examining the Veteran, and considering his complete history and subjective complaints, there was no basis to offer additional loss of function or motion when it comes to repetitive use or during a flare-up. However, the examiner also documented the Veteran's description of weekly left shoulder pain with an intensity of 6/10 on the pain scale, flare-ups that lasted all day, flare-ups that impacted his ability to lift objects, and decreased endurance to lift or grab objects, while noting that repetitive use over time and flare-ups did not affect range of left shoulder motion. A subsequent August 2021 examiner essentially declined to provide requested information because "flare ups not reported on this exam." Nevertheless, to the extent that the March 2020 and August 2021 examinations and opinions were not compliant with Sharp, the Board finds that additional remand for another examination is not necessary. See Sharp v. Shulkin, 29 Vet. App. 26, 30 (2017). Specifically, a new examination is not warranted because the Board has now granted the highest rating available based on limitation of motion of the nondominant arm in the absence of ankylosis, which has not been alleged, suggested, or noted here. Indeed, even at such time as the Veteran sought treatment for an "exacerbation" of his left shoulder disability, such as in July 2011, range of motion was full albeit slow and with immediate crepitus. Moreover, the record shows that since that exacerbation, the Veteran has sought limited treatment for his left shoulder disability and has not alleged any ankylosis. In February 2013, while reporting chronic shoulder pain, range of motion was noted to be "intact" and, in December 2016, the Veteran reported only "occasional left shoulder pain" and no associated functional impairment. More recently musculoskeletal range of motion was generally noted to be intact in October 2021. Even in describing functional impairment from his left shoulder such as at work, the Veteran described difficulty picking up or lifting anything that weighed more than a few pounds, but with continued motion nonetheless. See October 2018 Statement. Indeed, the Veteran denied and was not observed to have any difficulties with his activities of daily living during July 2019 VA treatment. Thus, the Board finds that remand for another examination is not warranted. 2. Low Back The Veteran is seeking an increased rating for his low back disability, currently rated as 20 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5242. The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Spinal Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Ratings under the General Spinal Formula are made 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. As relevant here, a higher 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Spinal Formula. For an increase to 50 percent, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees. See id., at Note (2). In this case, as an initial matter, the Board notes that the Veteran did not experience any incapacitating episodes as defined by Note (1) to the IVDS Formula. Specifically, VA treatment records, lay testimony, and VA back examination reports do not demonstrate that the Veteran was prescribed bed rest by a physician for the treatment of lumbar spine disability symptoms. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Accordingly, the Board concludes that the IVDS Formula is inapplicable in the instant case. Turning to the General Rating Formula, the relevant evidence does not show the Veteran's lumbar spine disability results in forward flexion limited to 30 degrees or less, or ankylosis of the thoracolumbar spine. Instead, VA examinations in September 2015, June 2021, and August 2021 showed forward flexion limited to 60 degrees, 40 degrees, and 90 degrees, respectively. The June 2021 VA examiner also found that forward flexion was additionally limited to 35 degrees after repetitive use and with flare-ups. Such findings are consistent with the currently-assigned 20 percent rating. In considering this evidence of record, the Board acknowledges that it must consider functional loss due to pain, weakness, excess fatigability, and incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59. However, even when considering painful motion, flare-ups, repetitive use, and functional loss, the Board concludes that the Veteran's lumbar spine disability generally results in limited forward flexion of the thoracolumbar spine between 35 and 90 degrees, consistent with the assignment of the 20 percent rating under the pre-2021 amendment version of the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. In so finding, the Board is cognizant that a private provider wrote in a September 2016 report that the Veteran's forward flexion of the lumbar spine was limited to 20 degrees on examination of the Veteran. However, the Board finds that such an isolated finding does not "more nearly approximate" forward flexion limited to 30 degrees or less, particularly when it is considered with other additional back or musculoskeletal (general) range of motion findings, including times motion was noted to be moderate, full, or intact, including in February 2013, March 2015, and October 2021. The Board also points out that in July 2019, the Veteran reported that he lived alone and had no difficulties in terms of activities of daily living, and none were observed by a VA provider "in terms of grooming, hygiene, and movement." Thus, in considering the September 2016 finding of forward flexion limited to 20 degrees in light of the relevant record as a whole, the Board finds that the finding was isolated and insufficient to warrant a higher rating based on flexion limited to 30 degrees or less. As such, a rating in excess of 20 percent for the lumbar spine disability is denied. 3. Radiculopathy of the Bilateral Lower Extremity The Veteran seeks higher ratings for his radiculopathy of the left and right lower extremities, which are rated as noncompensable prior to August 26, 2021, and 20 percent thereafter pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis, a 20 percent rating is assigned for moderate incomplete paralysis, a 40 percent rating is assigned for moderately severe incomplete paralysis, and a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. Lastly, a maximum 80 percent rating is assigned for complete paralysis where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or lost entirely. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Within the context of applying Diagnostic Code 8520, the terms "mild," "moderate," "moderately severe," and "severe" are not defined. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Turning to the evidence of record, the Board first finds that a 10 percent rating is warranted for each lower extremity for the period prior to August 26, 2021, as there is clinical evidence of mild radiculopathy in both lower extremities. For example, in January 2014 and September 2014, the Veteran reported occasional low back pain that radiated to the leg and straight leg raising testing on the left was positive. In March 2015, the Veteran reported low back pain with several occasions of pain from the right buttocks to the knee. Given the objective finding on straight leg raising test and the subjective complaints of back pain radiating to both legs, the Board finds that the evidence supports mild disability in each lower extremity for the period prior to August 26, 2021. The Board also finds that during the period prior to August 26, 2021, a rating in excess of 10 percent is not warranted for radiculopathy in either lower extremity, as no more than mild disability was shown. In this regard, November 2015 and June 2021 VA examinations showed normal muscle strength, reflexes, and sensation upon testing, and straight leg raising test was negative, bilaterally. There were no documented reports of pain or other symptoms in the lower extremities during the examinations, and the examiners found no evidence of radiculopathy in either lower extremity. Clinical evidence during the period prior to August 26, 2021, also showed no more than mild disability, as the Veteran reported only occasional complaints of pain and neurologic examination was generally normal (apart from the straight leg raising tests). For example, in 2014, the lower extremities on examination were noted to be normoreflexic and without gross motor or sensory deficits. Similarly, in 2015, there was full motor strength of the lower extremities, intact sensation and the Veteran was noted to have no neurologic or radicular deficits. The Board also points out that, despite his radiculopathy, the Veteran was able to engage in travel, routine exercise, and recreational activity, as supported by his reports in May 2013 of family vacations and in April 2018 that he visited his son in Florida; his reports in March 2015 and February 2017 that he walked four miles at a moderate pace 4 to 5 times per week; and, his report in July 2015 that he spent his time fixing his garden, his home, and exercising. Thus, the Board finds that, at worst, mild disability was shown for the period prior to August 26, 2021, and that 10 percent ratings, but no higher, are warranted. Finally, with respect to radiculopathy, the Board finds that a rating in excess of 20 percent is not warranted for either extremity for the period from August 26, 2021, as no worse than moderate disability was shown. During an August 26, 2021, examination, the Veteran reported mild constant pain, intermittent moderate pain, moderate numbness, and moderate paresthesias and/or dysthesias in his lower extremities and, on examination, straight leg raising testing was positive. However, muscle strength testing was full, reflex examination was normal, and sensation was intact, bilaterally. The examiner diagnosed radiculopathy affecting the sciatic nerve, bilaterally, and found the overall severity of the Veteran's radiculopathy to be mild for each extremity. Thereafter, clinical records dated in October 2021 show that the Veteran was ambulatory, and that neurologic examination revealed no gross motor or sensory deficit. Given the Veteran's reports of symptoms that were no more than moderate in severity, the normal muscle strength, reflex, and sensory examinations, and the August 2021 VA examiner's assessment of mild disability, the Board finds that no more than moderate disability has been shown in either extremity, and that a rating in excess of 20 percent for radiculopathy in either extremity is not warranted for the period from August 26, 2021. 4. Sleep Apnea The Veteran's OSA is currently rated as 50 percent disabling, under diagnostic code (DC) 6847. In order to warrant a 100 percent disability rating (the next higher rating), the Veteran's OSA would have to result in a tracheostomy or chronic respiratory failure with carbon dioxide retention or cor pulmonale. 38 C.F.R. § 4.97, DC 6847. In this case, the Veteran has been afforded VA examinations to evaluate his sleep apnea disability and none of the examination reports noted respiratory failure, carbon dioxide retention, cor pulmonale, or tracheostomy. See November 2014, September 2015, and June 2021 VA Examination Reports. Indeed, the June 2021 VA examination report reflects improvement in the Veteran's symptoms with use of the CPAP. The clinical evidence is similarly silent for evidence of respiratory failure, carbon dioxide retention, cor pulmonale, or a tracheostomy, and as recently as August 2021, the Veteran reported improved quality of sleep and denied daytime sleepiness. Thus, the Board finds that a disability rating greater than 50 percent for OSA is not warranted. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.