Citation Nr: 1004682 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 08-21 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented to reopen a service connection claim for an acquired psychiatric disorder, to include anxiety, depression and a bipolar disorder, and if so may such claim be granted. 2. Entitlement to an increased rating for recurrent minor left shoulder dislocation, currently rated at 20 percent. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD Terrence Griffin, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1979 to March 1983. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of July 2007 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). FINDINGS OF FACT 1. Evidence added to the record since the prior final September 2001 decision, relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for an acquired psychiatric disorder, to include anxiety, depression and a bipolar disorder, and raises a reasonable possibility of substantiating that claim. 2. At the time the Veteran entered active duty, he did not have any bipolar disorder, or similar infirmity. 3. The Veteran has been diagnosed with a bipolar disorder. 4. The most probative medical evidence of record suggests a likely nexus between the Veteran's military service and his diagnosed bipolar disorder. 5. The Veteran is right hand dominant, making his left extremity his minor extremity. 6. The evidence of record does not demonstrate that the Veteran's recurrent left shoulder dislocation is manifested by a fibrous union or ankylosis. 7. The Veteran has left arm abduction is limited to 55 degrees, but his left arm motion is not limited to 25 degrees from his side. CONCLUSIONS OF LAW 1. Evidence added to the record since the September 2001 rating decision denying the Veteran's service connection claim for an acquired psychiatric disorder, to include anxiety, depression and bipolar disorder, is new and material and his claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 2. A bipolar disorder was caused, or aggravated, by the Veteran's military service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 3. The criteria for a disability rating in excess of 20 percent for recurrent left shoulder dislocation have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5202, 5203 (2009). 4. The criteria for a separate 20 percent disability rating, but no more, for left arm limitation of motion have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5201 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claim with respect to the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et. Seq. (West 2003). As it relates to the Veteran's claim to reopen service connection, since the Board is reopening the claim, any notice or development errors under 38 U.S.C.A. § 5103, 5103A; 38 C.F.R. § 3.159 regarding this claim are moot. Moreover, given the favorable outcome of below, no conceivable prejudice to the Veteran could result from this adjudication. In this regard, the agency of original jurisdiction will be responsible for addressing any VCAA notice defect with respect to the rating and effective date elements when effectuating the award. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). As it relates to the Veteran's increased rating claim, the law requires certain information be provided to the Veteran. This includes that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. 38 U.S.C.A. § 5103(a); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. In this case, letters addressing the notice requirements were sent to the Veteran in December 2006 and June 2008, informing the Veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit any evidence and/or information in his possession to the RO. The Board acknowledges that the June 2008 letter sent to the Veteran, which fully met the requirements of Vazquez-Flores, was not sent prior to the adjudication of the rating action on appeal, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In this case, the Veteran was provided with considerable correspondence, regarding what was needed to support his claim. Additionally, the Veteran is represented by an attorney that is intimately familiar with the adjudication of Veterans' claims; and the various correspondences, and submissions of evidence, clearly demonstrate that each has actual knowledge of what is necessary to substantiate the claims on appeal. Therefore, any notice deficiencies do not affect the essential fairness of the adjudication, and the presumption of prejudice is rebutted. For this reason, no further action is required regarding the duty to notify. The Board also finds that all necessary development of evidence has been completed. Importantly, the Veteran has been provided appropriate VA examinations, his service, VA and private treatment records have been obtained, and the Veteran has declined a hearing related to his claim. The Board is unaware of any relevant evidence that is not of record, and finds all reasonable efforts were made by VA to obtain evidence necessary to establish the Veteran's claims. Therefore, VA has no outstanding duty to provide further assistance to the Veteran with the development of evidence. Application to Reopen Service Connection A May 2000 rating action denied the Veteran's service connection claim for a nervous condition (currently claimed as an acquired psychiatric disorder, to include anxiety, depression and bipolar disorder), finding no evidence of any chronic disability. In making this determination, the RO considered the Veteran's service treatment record and VA treatment records. Ultimately, the decision became final, after the Veteran failed to appeal the decision within the prescribed time. 38 U.S.C.A. § 7105 (West 2002). A September 2001 rating action reopened and denied the Veteran's service connection claim for an anxiety/depressive disorder (currently claimed as an acquired psychiatric disorder, to include anxiety, depression and bipolar disorder) on the merits, finding that the Veteran's condition existed prior to service and there was no evidence his military service aggravated the condition. In reaching this decision, the RO considered the Veteran's service treatment records, VA treatment records and private treatment records. Although the Veteran filed a timely notice of disagreement related to this rating action, the decision became final, after he failed to file a substantive appeal within the prescribed time. 38 U.S.C.A. § 7105 (West 2002). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither 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. 38 C.F.R. § 3.156(a). Numerous pieces of evidence have been added to the record since the prior final rating decision. This evidence includes numerous private medical statements, VA psychological treatment records and two VA psychological examinations. The VA examination psychological examination reports, dated in March 2007 and July 2007, both suggest the Veteran's current psychological condition may have been caused, and/or aggravated, by and his military service. As the Veteran has now presented evidence related to this previously unestablished necessary element of his claim, (that his acquired psychiatric disorder may have been aggravated by military service), the Board finds the newly submitted documents to be new and material evidence, within the meaning of 38 C.F.R. § 3.156(a) and the claim for service connection is reopened. Service Connection Claim The Veteran presently seeks to establish service connection for his acquired psychiatric disorder, to include anxiety, depression and bipolar disorder. As indicated in a December 2006 statement, the Veteran maintains that his current acquired psychiatric disorder, to include anxiety, depression and a bipolar disorder, is related to his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military duty. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As indicated above, the Veteran served on active duty from March 1979 to March 1983. At the time of his January 1978 enlistment examination, the Veteran reported seeking psychiatric treatment for depression; however, upon examination the Veteran found to be "cured" of this disorder and psychologically normal. The Veteran's service treatment record reflects his in-service treatment for alcohol dependence, and a July 1982 service treatment record documents the Veteran diagnosis with "personal problems," after a military medical professional's assessment that he was "troubled." At the time of his October 1982 separation examination, the Veteran denied (i) depression or excessive worry and (ii) nervous trouble of any sort, and was found to be psychologically normal. A May 1984 VA psychological admission record is the first post-service treatment of record related to the Veteran's mental condition of record. At this time, the Veteran relayed his account of his military service and was diagnosed with anxiety and depression. The Veteran continued VA psychological treatment after this admission; however, as reflected in a March 2000 VA psychiatric treatment record, the Veteran's psychological diagnosis was revised to a manic bipolar disorder. In an effort to assist the Veteran substantiate his claim, he was provided a March 2007 VA psychological examination. At this time, the examiner conducted a thorough review of the Veteran's psychological treatment records, recorded the Veteran's account of his disorder, and conducted an appropriate psychological examination. Based on these findings, the examiner confirmed the Veteran's bipolar disorder diagnosis. The examiner further stated that the increase in "bipolar symptoms may often occur after a very stressful event, such as the [V]eteran describes in connection with his [military service], it is also true this can be caused by an increase with work primarily in the first year or two after discharge." Nevertheless, the examiner opined that the Veteran's military service could not be ruled out as a cause of his current bipolar disorder. The examiner again confirmed these findings and opinion in a July 2007 VA examination. The Veteran has submitted numerous private medical opinions to support his claim. In a May 2005 statement, private psychiatrist M. Marcus, M.D., stated that the Veteran was treated between August 2004 and December 2004 and that the "trauma of the [Veteran's] abrupt discharge and [the] cloudy circumstances surrounding it contributed to the downward spiral that has become [the Veteran's] life since then." A statement provided by the private physician S. Ashman, M.D., who found the Veteran fit for military service in 1979, opined that the Veteran's currently diagnosed bipolar disorder likely had its onset before his separation from service because that diagnosis has been made more than once since then [and] it would seem...to be most likely [the case]. The alternative is to assume that [the Veteran] had one affective illness [in-service] and a different affective illness on one or more occasions since then. One chronic recurrent illness seems...the more rational explanation. A July 2009 private psychological report is also of record. In this report, private psychologist K. Platoni, Psy.D, recorded the Veteran the Veteran's extensive psychological treatment history (both at the VA and at private facilities), reviewed the Veteran's VA psychological examinations, and then provided an expert opinion. In light of the aforementioned evidence, Dr. Platoni stated that while in service the Veteran's "behavior altered drastically from the praises received during basic training to showing a greater mental decompensation," opining that the onset of [the Veteran's] Bipolar disorder occurred in the line of duty." Both this psychological report and the other respective private statements tend suggest the Veteran's current bipolar disorder is related to his military service. After a thorough review of the claims folder, the Board finds that the medical evidence of record, at a minimum, suggests a possible link between the Veteran's current bipolar disorder and military service. As no bipolar disorder or similar acquired psychiatric condition was noted at the time the Veteran entered service, and absent clear and unmistakable evidence to the contrary (of which there is none), he is presumed sound and without any defect of this nature at the time of entry into military service. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b). Although depression was arguably noted at the time of entry, both military and private medical professionals opined that this disorder was "cured." What is more, depression and a bipolar disorder are distinct medical disorders, entitling the Veteran to the presumption that no bipolar disorder existed at the time of his entry into service. Id.; see also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, pp. 223 and 499 (31st ed. 2007). The March 2007 and July 2007 VA examination findings, and the July 2009 private psychological report, are highly probative, as they relied on the Veteran's account of his disorder and competent medical evidence, finding it is as likely as not that the Veteran's currently diagnosed bipolar disorder is related to his military service. In light of the aforementioned medical evidence, the Board finds that there is persuasive and probative evidence that the Veteran's bipolar disorder is likely related to his military service. The claims folder also contains numerous statements from the Veteran related to his symptomatology and his military experiences. The Board finds the Veteran's account of his in-service and post-service symptoms to be competent and credible. See Savage v. Gober, 10 Vet. App. 495-97 (1997). These statements are of increased value in light of the Veteran's consistent account of his symptoms and military experiences, found as early as May 1974 in a VA psychological admission record-one year and two months after separation from military service (March 1973 to May 1974). Given the existence of a diagnosed bipolar disorder, medical opinions relating this diagnosis to military service, and the Veteran's credible and consistent statements, the Board, resolving all reasonable doubt in favor of the Veteran, concludes that the criteria to establish service connection for a bipolar disorder are met. However, as there is otherwise no medical evidence linking any other acquired psychiatric disability to service, or any incident therein, service connection for any other acquired psychiatric disorder is not warranted. Increased Rating Claim The Veteran was granted service connection for recurrent left shoulder dislocation in an August 1986 rating action, and assigned a 20 percent disability rating. The Veteran maintains that his disability has worsened and warrants a rating in excess of the currently assigned 20 percent. Where an increased disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service-connected disabilities are rated in accordance with VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (Schedule), which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. When after considering carefully all procurable and assembled data a reasonable doubt arises regarding the degree of disability, the Board shall resolve such doubt in favor of the claimant. 38 C.F.R. § 4.3. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Ratings for functional impairment of the upper extremities depend on which extremity is the major extremity, i.e., the one predominantly used by the individual. Only one extremity is considered to be major and a person is presumed to be right-handed unless there is evidence of left-handedness. 38 C.F.R. § 4.69. The Veteran indicated on his January 1978 enlistment Report of Medical History that he is right-handed. Thus, the rating for the left shoulder is to be made on the basis of the left upper extremity being the minor extremity. With respect to the minor extremity, Diagnostic Code 5202 provides that impairment of the humerus with (i) frequent episodes of recurrent dislocation at the scapulohumeral joint and guarding of all arm movements or (ii) infrequent episodes of dislocation, and guarding of movement only at the shoulder level, is rated as 20 percent disabling. A 20 percent rating is also appropriate for impairment of the humerus with malunion of marked or moderate deformity. This Diagnostic Code further indicates that fibrous union of the humerus warrants a 40 percent rating. At an August 2005 VA orthopedic consultation, the Veteran sought treatment related to his left shoulder. The VA physician recorded the Veteran's account of the recent onset of left shoulder pain and that his left shoulder "always reduced itself and had never required manipulation by [a] physician." During this visit, an x-ray was taken of the Veteran's left shoulder, which revealed mild degenerative joint disease, and a physical examination revealed limited range of motion. The VA physician found the Veteran's shoulder to be stable, but noted apprehension in all ranges. Additionally, no tenderness was noted at the coracoid or biciptual groove; however, there was tenderness at the subacromial space. In an effort to assist the Veteran substantiate his claim, he was provided a July 2007 VA examination. The examiner noted that the Veteran's recent left shoulder injection treatments and that the claims folder reflected recurrent left shoulder dislocation four-to-six times a year. During this examination, the Veteran complained of constant left shoulder pain, and that "certain movements...elicit[ed] a click with an accompanying severe sharp pain." On physical examination, tenderness was found over the anterior aspect of the Veteran's left shoulder and on the anterior margin of the left deltoid muscle. Additionally, the examiner found the Veteran's left shoulder stiff and limited in all movements by pain. The Veteran's left shoulder forward flexion was limited to 110 degrees, abduction to 55 degrees, and external/internal rotation to 30 degrees. In addition, on repetitive testing, the Veteran reported increased pain, but there was no additional loss of motion. An x-ray taken of the Veteran's left shoulder revealed marked glenohumeral joint osteoarthritis. At this time, the Veteran was diagnosed with recurrent subluxation of the left shoulder and osteoarthritis of the left shoulder. Based on the evidence of record, the Board finds that a rating in excess of 20 percent, under Diagnostic Code 5202, is not warranted. The Veteran's July 2007 VA examination report does not indicate there is any fibrous union of the humerus, nor does the August 2005 VA orthopedic consultation report. Essentially, there is no medical evidence of record noting any diagnosis, or complaints, of any left shoulder fibrous union. At most, the evidence of record supports finding that the Veteran's experiences frequent episodes of recurrent left shoulder dislocation (four-to-six times a year) and guarding of all arm movements. Accordingly, under Diagnostic Code 5202, the Veteran does not meet the criteria for an increased disability rating; however, this does not end the analysis. As the July 2007 VA examination report reflects the Veteran's limitation of left arm motion, a separate disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201, is appropriate. Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, limitation of motion with respect to the minor arm (i) to shoulder level, or (ii) to midway between the side and shoulder level, warrants a 20 percent disability rating. A 30 percent disability rating is appropriate when the limitation of motion of a minor arm is to 25 degrees from the side. Based on the criteria outlined in Diagnostic Code 5201, a 20 percent rating for the Veteran's limitation of left arm motion is appropriate. At his July 2007 VA examination, the Veteran's abduction was from zero degrees to 55 degrees and his flexion from zero degrees to 120 degrees. This level of limitation of minor arm movement correlates most closely with a 20 percent disability rating. A rating in excess of 20 percent is not warranted, as there is no evidence the Veteran has limitation of arm motion to 25 degrees from his side. Id. As such, the preponderance of the evidence is against entitlement to a rating in excess of 20 percent for limitation of left arm motion. Although the evidence of record reflects the Veteran's limited left arm range of motion, and diagnosed arthritis, a separate disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5003, is not appropriate. Diagnostic Code 5003 plainly states that any limitation of motion due to arthritis should be rating under "the specific joint or joints involved." Accordingly, any limitation of left arm motion would properly be rated under Diagnostic Code 5201, as the Board has currently done. The Board acknowledges that left arm arthritis and painful motion were noted in the July 2007 VA examination report, however, on repetitive testing there was no additional loss of motion, or functional loss, greater than that contemplated in the 20 percent evaluation assigned. See 38 C.F.R. § 4.40; Deluca v. Brown 8 Vet. App. 202 (1995). What is more, the assignment of a separate rating under Diagnostic Code 5003, based on limitation of left arm motion related to arthritis, would conflict with the prohibition of pyramiding, under 38 C.F.R. § 4.14. Ultimately, the Board finds that all pain and limitation of arm motion present is contemplated in the 20 percent rating currently assigned. Additionally, the Veteran does not have a diagnosis of ankylosis, or impairment of the clavicle or scapula, which might warrant assignment of a disability rating under Diagnostic Codes 5200 or 5203. Upon a thorough review of the evidence of record, the Board concludes that the objective medical evidence of record weighs against a disability rating higher than the respective 20 percent ratings assigned for recurrent (minor) left shoulder dislocation and limitation of (minor) left arm motion. The Board notes that the Veteran's disorder does not appear to have changed significantly, as to warrant a staged rating; and that the preponderance of the evidence is against such a claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching, this decision the Board observes that no unusual circumstances are present here, as to render impractical the regular schedular standards. There is no showing of frequent periods of hospitalizations or marked interference with employment, not contemplated by the ratings assigned. Therefore, referral under 38 C.F.R. § 3.321 to the Under Secretary for Benefits, or Director of Compensation and Pension Service for extra-schedular consideration is not warranted. ORDER Service connection for a bipolar disorder is granted. An increased rating for recurrent left shoulder dislocation, currently rated at 20 percent, is denied. Entitlement to a separate 20 percent evaluation, but no greater, for limitation of left arm motion is granted, subject to the rules and regulations governing the payment of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs