Citation Nr: 18139870 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-45 044 DATE: October 1, 2018 ORDER Entitlement to an initial 30 percent, but no higher, rating for right shoulder rotator cuff tendonitis is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial compensable rating prior to October 17, 2016 and in excess of 30 percent thereafter for migraine headaches is remanded. Entitlement to an initial rating in excess of 20 percent for left shoulder tendonitis is remanded. FINDING OF FACT The Veteran’s right (dominant) shoulder disability results in limitation of motion midway between his side and shoulder level but is not shown to be manifested by nonunion or dislocation of the clavicle or scapula, a humerus impairment, or ankylosis. CONCLUSION OF LAW The criteria for an initial 30 percent, but no higher, rating for the Veteran’s right (dominant) shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5200-5203. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 2006 to July 2013. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his December 2015 VA Form 9, Substantive Appeal, the Veteran requested a hearing before the Board, but following proper notice of the August 2018 hearing, the Veteran did not appear for the hearing. Therefore, his hearing request is considered to be withdrawn. 38 C.F.R. § 20.704(d). Increased Rating The Veteran and his representative generally contend the Veteran is entitled to a rating in excess of 20 percent for his right shoulder disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran has been assigned a 20 percent rating for his service-connected right shoulder disability pursuant to the criteria of Diagnostic Code 5201. 38 C.F.R. § 4.71a. The December 2012 VA examination report reflects that the Veteran is right handed. Therefore, the Veteran’s right upper extremity is his major upper extremity. Under Diagnostic Code 5201, for the major upper extremity, a 20 percent rating is assigned for limitation of motion at shoulder level, a 30 percent rating is assigned for limitation of motion midway between the side and shoulder level, and a 40 percent rating is assigned for limitation of motion to 25 degrees from side. 38 C.F.R. § 4.71a. Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I. Diagnostic Code 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). Diagnostic Code 5200 evaluates ankylosis of the shoulder. The record contains no evidence of shoulder ankylosis, and the Veteran has not described symptoms that are suggestive of ankylosis. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Diagnostic Code 5202 evaluates impairment of the humerus. The record contains no evidence of impairment of the humerus, and the Veteran has not described symptoms that are suggestive of impairment of the humerus. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Diagnostic Code 5203 evaluates impairment of the clavicle or scapula. The record contains no evidence of impairment of the clavicle or scapula, and the Veteran has not described symptoms that are suggestive of impairment of the clavicle or scapula. Therefore, this Diagnostic Code is not applicable and will be discussed no further. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Turning to the relevant evidence of record, the Veteran attended a VA examination in December 2012 while still in service. The examination report reflects the Veteran’s right shoulder had flexion to 180 degrees without pain, abduction to 130 degrees without pain, and internal and external rotation to 90 degrees without pain. The Veteran had pain after repetitive use but no additional loss of range of motion. The Veteran had normal shoulder strength. The Veteran attended a VA examination in October 2014 where he had right shoulder flexion to 80 degrees, abduction to 70 degrees, external rotation to 60 degrees, and internal rotation to 30 degrees. The Veteran had pain in all planes of motion. The Veteran had no additional loss of range of motion upon repetitive use testing. The Veteran had anterior and posterior rotator cuff tenderness. The Veteran also had 3/5 strength with forward flexion and abduction. The examiner stated that the functional impact of the Veteran’s bilateral shoulder condition is that it would limit his ability to perform heavy lifting, pushing or pulling, or any overhead work. The Veteran reported that he had problems with his right shoulder during basic training and throughout service and it has gotten worse over the years. Further, he stated he has popping, grinding, weakness, stiffness, and pain. The Veteran reported monthly flare-ups, moderate in severity, that last several days. He reported the flare-ups occur with increased physical activity and manifest as increased pain and stiffness and result in decreased strength and range of motion. The Veteran attended an additional VA examination in October 2016 where he had flexion to 110 degrees, abduction to 70 degrees, external rotation to 70 degrees, and internal rotation to 90 degrees. The Veteran had pain with flexion, abduction, and external rotation. The Veteran had no additional loss of range of motion upon repetitive use testing. The Veteran had tenderness in the glenohumeral joint, acromioclavicular joint, and subacromial bursa. The Veteran had normal strength in the right shoulder with forward flexion and abduction. The examiner stated that the functional impact of the Veteran’s bilateral shoulder condition is the Veteran would have difficulty performing a job requiring repetitive overhead activities and heavy lifting on a regular basis. The examiner noted that the Veteran is a mail carrier and that he limits the distance he carries heavier packages. The Veteran reported shoulder pain that has worsened over the years. He reported pain with flexion and abduction and stiffness. He reported that holding his hands on the steering wheel of the car is painful. The Veteran reported flare-ups that occur approximately five times per month. In addition, the Veteran reported he avoids internal rotation and lifting heavy loads overhead. Pertinent to the claim for increase, the Veteran’s right shoulder disability has been manifested primarily by limited motion and pain. The Board notes that the Veteran had abduction to 130 degrees prior to exiting service and prior to the effective date of his award of service connection, which is beyond the range of motion for a 20 percent rating per Diagnostic Code 5201. However, based on the range of motion testing completed during the appeal period at the October 2014 and October 2016 VA examinations, the Board finds that the evidence most nearly approximates a 30 percent rating, but no higher, throughout the period on appeal as the Veteran’s right shoulder abduction is at a point between where a 20 percent and 30 percent rating is warranted. Thus, giving the Veteran the benefit of the doubt, the Board finds the impairment more nearly approximates limitation of motion to midway between the side and shoulder level, and assigns a 30 percent rating for the entire period. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In evaluating the Veteran’s increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40, 4.45. The Board recognizes the Veteran’s complaints of pain and functional loss as a result of his right shoulder disability, notably his difficulty with heavy lifting and overhead activities. However, when considering the reports of functional loss as shown by the October 2014 and October 2016 VA examinations and the Veteran’s reports of pain, the evidence shows the Veteran’s range of motion is not more nearly approximated by limitation to 25 degrees from the side. Thus, a rating in excess of 30 percent is not warranted. The Board notes that ratings in excess of 30 percent are available under Diagnostic Codes 5200 and 5202; however, as noted above, the record shows no evidence of ankylosis or impairment of the humerus. Therefore, a rating in excess of 30 percent is not available under any other diagnostic code. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the claimant or reasonably raised by the record and will not be further discussed herein. Doucette v. Shulkin, 28 Vet. App. 366, 369−70 (2017). In sum, the Board finds that the evidence most nearly approximates an assignment of a 30 percent, but no higher, rating for the Veteran’s service-connected right shoulder disability for the entire period on appeal. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for PTSD is remanded. The Veteran last underwent a VA examination for his PTSD in October 2016. However, at a March 2017 VA psychiatric appointment the Veteran openly stated his mental health concerns are more severe. The mental status examination at the March 2017 psychiatric appointment indicates a possible increase in the severity of the Veteran’s PTSD symptoms in comparison to the mental status examination at the October 2016 VA examination. At the October 2016 VA examination, the Veteran’s mood was mild, his affect was appropriate, and he had good concentration. In contrast, the Veteran reported excessive sadness, self-criticism, irritability, and poor concentration at the March 2017 psychiatric appointment. Given the allegation of worsening and medical evidence supporting worsening of symptoms, the Board has determined that the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. 2. Entitlement to an initial compensable rating prior to October 17, 2016 and in excess of 30 percent thereafter for migraine headaches is remanded. Following the issuance of the September 2013 rating decision that assigned a noncompensable rating, the Veteran noted that he sought a 30 percent rating for his disability in his August 2014 notice of disagreement. The RO increased the rating to 30 percent effective October 17, 2016 in a November 2016 rating decision. The RO issued supplemental statement of the cases dated November 16, 2016 and January 18, 2017 that continued the 30 percent rating beginning October 17, 2016. In an August 2017 supplemental statement of the case, the RO addressed the period prior to October 17, 2016 and continued the noncompensable rating prior to that date. The RO also noted in the August 2017 supplemental statement of the case that the previous supplemental statement of the case erroneously discussed the 30 percent rating effective October 17, 2016. Further, the RO noted that the Veteran’s appeal is considered partially resolved from October 17, 2016 since the Veteran stated the 30 percent evaluation would satisfy his appeal. However, as the RO addressed a rating in excess of 30 percent in November 2016 and January 2017 supplemental statement of the cases, it was indicated that the appeal for the entire period was continued. Therefore, given the RO initially continued the appeal of the partial grant, a remand is necessary for the issuance of a supplemental statement of the case for the RO to consider the entire period on appeal. 3. Entitlement to an initial rating in excess of 20 percent for left shoulder tendonitis is remanded. Following the issuance of the September 2013 rating decision that assigned a 10 percent rating, the Veteran noted that he sought a 20 percent rating for his disability in his August 2014 notice of disagreement. The RO increased the rating to 30 percent effective July 23, 2013 in a November 2016 rating decision. The RO issued supplemental statement of the cases dated November 16, 2016 and January 18, 2017 that continued the 20 percent rating throughout the appeal period. In an August 2017 supplemental statement of the case, the RO noted that no further action would be taken on the Veteran’s left shoulder appeal because the Veteran indicated in his August 2014 notice of disagreement that a 20 percent rating would satisfy his appeal. However, as the RO addressed a rating in excess of 20 percent in November 2016 and January 2017 supplemental statement of the cases, it was indicated that the appeal for the entire period was continued. Furthermore, following the January 2017 supplemental statement of the case that in part addresses the Veteran’s left shoulder disability, VA added VA treatment notes to the Veteran’s file in April 2017 that are pertinent to the Veteran’s left shoulder appeal. Pertinent evidence is initially reviewed by the agency of original jurisdiction (AOJ). Additional pertinent evidence that becomes available after the RO’s statement of the case but prior to certification to the Board is to be addressed in an additional supplemental statement of the case. 38 C.F.R. §§ 19.31, 19.37(a). After certification to the Board, such evidence must be referred back to the AOJ for initial review. 38 C.F.R. § 20.1304(c). An exception is when the Board grants the benefit being sought in full. Id. In the Veteran’s case, the additional VA evidence is pertinent to the Veteran’s increased rating claim. As such, the AOJ must furnish the Veteran with a supplemental statement of the case pursuant to 38 C.F.R. § 19.37(a) to address all additional evidence after the January 2017 supplemental statement of the case. 38 C.F.R. § 19.31. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic record VA treatment records from August 2017 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, afford the Veteran a VA examination with an appropriate expert to determine the severity of his service-connected PTSD. The entire claims file should be made available to the examiner in conjunction with this request. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the Veteran’s PTSD. The appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. 3. Readjudicate the Veteran’s claim for an increased rating for migraine headaches throughout the appeal period (since July 23, 2013) and for an increased rating for a left shoulder disability throughout the appeal period (since July 23, 2013) in light of all the evidence of record, in particular any evidence added to the record since the January 2017 supplemental statement of the case. Any further development deemed necessary should be completed prior to readjudication. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel