Citation Nr: 1324005 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-04 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include depression, to include as secondary to service-connected traumatic arthritis of the left shoulder. 2. Entitlement to a rating in excess of 20 percent for traumatic arthritis of the left shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from February 1962 to April 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a December 2009 substantive appeal, the appellant checked "I do not want a BVA hearing," but also included a hand-written notation that he wanted an "informal hearing" held by the Disabled American Veterans. That statement was crossed out and initialed, indicating the appellant withdrew the request. In an April 2010 statement, the appellant's representative noted that the appellant declined to have a BVA hearing. FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has an acquired psychiatric disability that is related to service or to a service-connected disability. 2. Prior to September 5, 2009, the appellant's traumatic arthritis of the left shoulder was manifested by limitation of motion of the arm to no less than shoulder level with pain. 3. From September 5, 2009, the appellant's left side is his dominant side and the traumatic arthritis of the left shoulder is manifested by limitation of motion of the arm to 25 degrees from the side and pain. CONCLUSIONS OF LAW 1. An acquired psychiatric disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. Prior to September 5, 2009, the criteria for a rating in excess of 20 percent for traumatic arthritis of the left shoulder have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2012). 3. From September 5, 2009, the criteria for a rating of 40 percent, but no higher, for traumatic arthritis of the left shoulder have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating and service connection claims. Prior to initial adjudication of the claims, appropriate notice was provided in a June 2008 letter. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. The appellant's Social Security Administration records have been associated with the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded a December 2009 medical examination to obtain an opinion as to whether any acquired psychiatric disability found in the examination was the result of service. This opinion was rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. In regard to a claim for an increased rating, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in June 2008 and December 2009. The examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis In March 2008, the appellant filed, in pertinent part, a claim of entitlement to service connection for depression. Even though the appellant specified that he sought service connection for depression, his claim constituted a claim for service connection for an acquired psychiatric disability, however diagnosed. As such, the claim cannot be limited only to the diagnosis that the appellant references, but rather, must be considered a claim for service connection for any and all psychiatric disabilities clinically indicated. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appellant was previously denied service connection for PTSD, most recently in a June 2001 rating decision. The appellant has not requested that the claim for service connection for PTSD be reopened or asserted that he has PTSD. Thus, that issue is not before the Board. The appellant contends that he has depression, to include as due to his service-connected left shoulder arthritis. For the reasons that follow, the Board concludes that service connection for an acquired psychiatric disability is not warranted. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection). In this case, the Board finds that the evidence does not show that the appellant has had a diagnosis of an acquired psychiatric disorder during the period on appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim). Without a current showing of a disability, service connection is not warranted in this matter. The appellant's claim for entitlement to service connection for depression, secondary to his service-connected shoulder condition was received in April 2008. March 2008 and September 2007 VA treatment records reflect that the appellant's screens for PTSD were negative. A March 2008 VA treatment record notes that the appellant was assessed as having a depressed mood. The appellant's VA treatment records indicate that he was first prescribed Citalopram for depression or anxiety in March 2008. A January 2009 VA treatment record notes that the appellant was assessed with a depressed mood. A September 2009 suicide risk screen was negative. The appellant was afforded a VA mental disorder examination in December 2009. The VA examiner found that the appellant did not have an Axis I diagnosis. The examiner stated that the appellant and his wife, when questioned multiple times about his mood, suggested that he never gets depressed more than a day or two, and that he might get frustrated and down about his limited ability associated with his arm and his stroke and his limited ability to do things and ambulate and speak. The appellant and his wife denied that the symptoms lasted for more than a day or two. Therefore, the VA examiner stated that the presentation was inconsistent with a depressive disorder; therefore, no diagnosis on Axis I was indicated. The examiner stated that the appellant certainly had some issues associated with adjusting to his physical limitations, but did not appear to present with an Axis I diagnosis at that time. The examiner also noted that the appellant had denied ever having been seen by a mental health professional, but a note in his record indicated his general practitioner had prescribed citalopram for depressed mood. The appellant has contended that he has depression that is related to a service-connected disability. Although a lay person may be competent to report the etiology of a disability, depression is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the appellant were competent to provide an opinion as to the etiology of a disorder which is typically confirmed by a psychological evaluation, the Board finds that the probative value of any such opinion is outweighed by that of the December 2009 VA examiner, who has education, training and experience in evaluating the etiology of an acquired psychiatric disability. The VA examiner reviewed the appellant's claims folder and opined that the appellant did not have an Axis I diagnosis. Based on the above, the Board finds that a preponderance of the evidence is against a finding that the appellant has an acquired psychiatric disability during the period on appeal. Although the appellant was prescribed Citalopram, his VA treatment records indicate that he was assessed with a depressed mood by his general practitioner. An assessment of a depressed mood does not indicate that the appellant had a diagnosis of depression or an acquired psychiatric disorder. The evidence of record does not show that the appellant was diagnosed with a depressive disorder or other acquired psychiatric disorder during the period on appeal. The December 2009 VA examiner reviewed the appellant's VA treatment records, including the prescription for Citalopram, but found that the appellant did not have an Axis I diagnosis. She specifically found that the appellant's symptoms were inconsistent with a depressive disorder. She noted that the appellant feeling down for a day or two was not consistent with a diagnosis of depression. In the absence of a diagnosis during the period on appeal, the appellant may not be service-connected for an acquired psychiatric disorder. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Increased Rating Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The appellant's left shoulder disability is currently rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5201, arthritis due to trauma and limitation of motion of the arm. Under Diagnostic Code 5010, arthritis that is substantiated by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the affected joint or joints is noncompensable, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5010. The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5010, Note (1). For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints, and the cervical vertebrae, dorsal vertebrae, and lumbar vertebrae are considered groups of minor joints. 38 C.F.R. § 4.45. Limitation of motion of the arm is rated under 38 C.F.R. § 4.71a, DC 5201. Under this code, for the right shoulder (dominant), a 20 percent rating is warranted for limitation of motion at shoulder level, a 30 percent rating for limitation midway between side and shoulder level, and a 40 percent rating for limitation to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. Normal range of motion in the shoulder includes forward elevation, or flexion, from 0 to 180 degrees, abduction from 0 to 180 degrees, and external and internal rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The appellant's claim for an increased rating was received on April 2, 2008. As such, the rating period on appeal is from April 2, 2007. 38 C.F.R. § 3.400(o)(2) (2012). Analysis A March 2008 VA treatment record reflects that the appellant complained of left shoulder pain. On examination, the left shoulder abducted to about 90 degrees with decreased internal and external rotation with some pain at endpoints. The appellant was prescribed Tylenol and naproxen for degenerative joint disease discomfort. The appellant's left shoulder was evaluated at a VA examination in June 2008. The report reflects that the appellant is right-handed. The appellant had constant left shoulder pain exacerbated with reaching and any other shoulder movement. The appellant's wife stated that the appellant's bathing and dressing were impaired due to shoulder pain. He had three flare-ups a week lasting one to two hours with increased pain and a diminished range of motion. On examination, the left shoulder had abduction to 60 degrees pain free and 85 degrees with pain, flexion to 90 degrees pain free and 110 degrees with pain, external rotation to 80 degrees with end-of-range pain, and internal rotation to 70 degrees with end-of-range pain. The ranges of motion were not additionally limited due to pain or fatigue following repetitive use on examination. Impingement testing was strongly positive in the left shoulder. Suprapinatus strength was 4/5. Stability testing was normal. There was diffuse tenderness to palpation over the left shoulder. There was no gross bony deformity, redness, or swelling. A left shoulder X-ray showed severe degenerative joint disease at the acromioclavicular joint and a lesser degree at the glenohumeral joint. A January 2009 VA treatment record noted that the appellant complained of pain in the left shoulder. The appellant was afforded another VA examination in September 2009. The VA examination report reflects that the appellant was at present left-handed as a result of a stroke 14 years ago. The appellant's wife stated that as of four years ago, the appellant started to experience progressive pain in the left shoulder that interfered with the activities of daily living. The examination report reflects that the appellant, at this point, cannot move his left shoulder. The examiner noted that the condition affected the appellant's activities of daily living coupled with the residuals from the stroke. There were no flare-ups. The examiner stated that impingement testing, stability testing, and supraspinatus strength could not be assessed because the appellant had very limited motion of the left shoulder and complained of pain on movement. Range of motion could not be assessed for the same reason. The diagnosis was severe arthritis of the left shoulder. Based on the evidence of record, the Board finds that a higher rating is warranted from September 5, 2009, the date of the VA examination. Prior to that date, the evidence did not reflect that the appellant had limitation of motion of the arm limited to 25 degrees from the side. At the June 2008 VA examination, the left shoulder had flexion to 90 degrees and abduction to 60 degrees, pain free. The June 2008 VA examination report also noted that the appellant was right handed. A preponderance of the evidence is against a finding that the appellant's arm was limited to midway between side and shoulder level. Thus, the Board finds that a rating higher than 20 percent is not warranted under Diagnostic Code 5201. Under Diagnostic Code 5201, a 20 percent rating is warranted for a major or minor shoulder with limitation of motion at shoulder level. The June 2008 VA examination report reflects that the appellant's left shoulder disability affected bathing and dressing due to shoulder pain. However, even considering the effects of pain on use, the Board finds that the evidence is against a finding that any further limitation due to pain results in the left shoulder being limited to a sufficient extent to warrant a higher rating. The June 2008 VA examination report indicated the appellant's left shoulder had flexion of 90 degrees and abduction to 60 degrees, without pain, indicating he could move it to shoulder level. The 20 percent rating already contemplates limited motion due to pain. Consequently, the Board finds that a higher rating is not warranted with consideration of DeLuca. From September 5, 2009, the Board finds that a preponderance of the evidence demonstrates the appellant is entitled to a higher rating. The September 2009 VA examination reflects that the appellant was left-handed due to his stroke. As a lay person, the appellant is competent to report his dominant hand. The Board finds the report to be credible as it is consistent with the evidence of record. VA treatment records including a note from October 2004 indicate the appellant had hemiplegia and hemiparesis affecting his dominant side, the right side. The September 2009 VA examination report reflects that the appellant's wife reported that he could not move his left shoulder. The examiner stated that range of motion testing, impingement testing, stability testing, and supraspinatus strength could not be assessed because the appellant had very limited motion of the left shoulder and complained of pain on movement. Under Diagnostic Code 5201, limitation of motion of the shoulder to 25 degrees from the side warrants a 40 percent rating for a major extremity and a 30 percent rating for a minor extremity. The Board finds that limitation of motion of the shoulder is limited to 25 degrees due to pain. Thus, with consideration of pain on use, the Board finds that a higher rating is warranted for the appellant's left shoulder disability from September 5, 2009. As the appellant reported that his left hand is now his dominant hand following the stroke, the Board finds that a rating of 40 percent is warranted from September 5, 2009 for the appellant's left shoulder disability. The September 2009 VA examination report noted that the appellant's left shoulder affected his activities of daily living. The Board finds that a rating in excess of 40 percent is not warranted due to functional impairment because the 40 percent rating takes into account the appellant's limitation of motion of the arm due to pain. See 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board has also considered whether the appellant is entitled to a higher rating during the period on appeal under another Diagnostic Code. The evidence reflects that the appellant had limitation of motion of the arm due to arthritis. The September 2009 VA examiner indicated the appellant had very limited motion of the left shoulder because of pain on movement, but did not indicate the appellant had ankylosis. Thus, a higher rating is not warranted under Diagnostic Code 5200 for ankylosis. The evidence does not reflect the appellant had loss of head of the humerus, nonunion of the humerus, a fibrous union of the humerus or recurrent dislocation of the humerus at the scapulohumeral joint. Thus, a higher rating is not warranted under Diagnostic Code 5202. Finally, the maximum rating under Diagnostic Code 5203 is 20 percent. Consequently, a higher rating is not warranted under that Diagnostic Code. The competent medical evidence of record shows that the left shoulder disability is primarily manifested by limitation of motion and pain. The applicable diagnostic codes used to rate the appellant's disability provide for ratings based on limitation of motion and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). TDIU is an element of all appeals for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the appellant filed a claim for TDIU which was most recently denied in a January 2006 rating decision. The appellant appealed the decision but did not file a substantive appeal. The June 2008 VA examination report reflects that the appellant has not worked since 1996 due to a stroke. The September 2009 VA examination report also indicates the appellant is severely disabled because of his stroke. The appellant has not contended and the evidence does not indicate that the appellant is unemployable as a result of his service-connected left shoulder disability. Thus, the Board finds that the issue of entitlement to a TDIU has not been raised by the record during the period on appeal. ORDER Entitlement to service connection for an acquired psychiatric disability, to include depression, to include as secondary to service-connected traumatic arthritis of the left shoulder, is denied. Entitlement to a rating in excess of 20 percent for traumatic arthritis of the left shoulder, prior to September 5, 2009, is denied. Entitlement to a rating of 40 percent, but no higher, is granted for traumatic arthritis of the left shoulder from September 5, 2009, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs