Citation Nr: 18142543 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-10 603 DATE: October 16, 2018 ORDER Entitlement to an increased disability rating for a service-connected left shoulder condition, currently rated at 20 percent, is denied. Entitlement to an increased disability rating for service-connected posttraumatic stress disorder (PTSD), currently rated at 70 percent, is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence reveals that the Veteran is capable of raising his left arm at least to shoulder level. 2. The preponderance of the evidence is against the finding that the Veteran’s service-connected PTSD resulted in total occupational and social impairment at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for a service-connected left shoulder condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for a disability rating in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1988 to January 1993. This case is on appeal before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. A review of the record indicates that additional medical evidence was added subsequent to the March 2016 statement of the case (SOC). However, this new evidence is either redundant of previously submitted evidence, does not relate to the appeal period, or involves conditions that are not part of this appeal. As such, no further action is required. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Veteran seeks increased disability ratings for a service-connected left shoulder condition, currently rated at 20 percent, and service-connected PTSD, currently rated at 70 percent. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that 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 veteran. 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 that the disability be considered in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). I. Left Shoulder Condition The Veteran seeks a disability rating in excess of 20 percent for a service-connected left shoulder condition, which he claims has worsened during the appeals period. The Veteran’s left shoulder condition has been rated as degenerative arthritis under Diagnostic Code 5003-5201. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each major joint affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. That rating will not be combined with a rating based on limitation of motion. 38 C.F.R. § 4.71a. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Under the laws administered by the VA, a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. In the present case, the evidence shows that the Veteran is right-hand dominant. As such, the Veteran’s right shoulder is considered the major upper extremity, while his service-connected left shoulder is the minor upper extremity. Diagnostic Code 5201 assigns a 20 percent disability rating for limitation of motion of both the major and minor arm when motion is only possible to the shoulder level. When motion is to midway between the side and shoulder level, a 20 percent evaluation is assigned for the minor arm, while a 30 percent rating is assigned for the major arm. When motion is limited to 25 degrees from the side, a 30 percent rating is assigned for the minor arm, while a 40 percent rating is assigned for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The normal range of motion of the shoulder is: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; external rotation to 90 degrees; and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Board notes that the Veteran has a 10 centimeter scar on his left shoulder, which is the result of a 1992 surgery to correct his left shoulder condition. See July 2014 VA examination. Such scars are normally evaluated under Diagnostic Code 7804, which relate to compensation for painful or unstable scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. However, given that the Veteran’s scar has been characterized as well-healed, nontender, and stable, the requirements of this diagnostic code will not be discussed further. During an appointment in June 2014, the Veteran reported a sensation of instability in his left shoulder with forward elevation past 90 degrees. A CT of the Veteran’s left shoulder from July 2014 revealed mild degenerative arthritis of the AC joint with minimal vacuum phenomena. The CT also found minimal degenerative changes in the glenoid fossa and humeral greater tuberosity. Lastly, the CT showed small soft tissue calcification but no evidence of acute fracture, subluxation, or gross muscle atrophy. Based on these findings, the reading physician characterized the Veteran’s left shoulder impairment as a minor abnormality. The Veteran underwent a VA examination for his left shoulder condition in July 2014. The examiner reviewed the claims file and conducted an in-person examination of the Veteran, diagnosing him with instability of the left shoulder due to acromioclavicular osteoarthritis. The examiner also noted a rotator cuff tear and shoulder impingement syndrome. The Veteran stated that his condition is subject to flare-ups, which make it difficult to lift and carry heavy objects, push, and pull. Upon examination, flexion was limited to 75 degrees, abduction was limited to 90 degrees, internal rotation was limited to 35 degrees, and external rotation was limited to 30 degrees. Testing also showed pain on weightbearing and non-weightbearing use, as well as moderate pain to palpation at the AC joint. The Veteran exhibited loss of movement, movement, weakness, incoordination, and pain on movement. Crepitus was also present. The examiner opined that the Veteran has limitations with prolonged heavy lifting, carrying, pushing, pulling, flexing, abducting, and rotating. An MRI of the Veteran’s left shoulder from July 2014 revealed mild degenerative arthritis of the AC joint with small joint effusion and a partial tear of the biceps tendon. After careful consideration of the evidence, the Board finds that a disability rating in excess of 20 percent for the Veteran’s service-connected left shoulder condition is not warranted for any portion of the period on appeal. The Board notes that the July 2014 VA examination is the only comprehensive assessment of the Veteran’s left shoulder condition dating from within the appeal period. The examination revealed that abduction in the Veteran’s left arm was limited to 90 degrees and flexion was limited to 75 degrees. This report is consistent with the treatment record from the previous month, which stated that the Veteran began to experience a sensation of instability in his left shoulder with flexion past 90 degrees. Although the Veteran’s ability to raise his left arm to shoulder level in all ranges of motion is questionable, every measurement recorded during the appeal period illustrates that he is capable of moving it at least midway between his side and shoulder level. Since the Veteran is not left-hand dominant, these assessments are consistent with a 20 percent disability rating under Diagnostic Code 5201. In order to qualify for a 30 percent disability rating under this diagnostic code, the Veteran would have to show that he could not raise his non-dominant extremity higher than 25 degrees from his side. However, the evidence of record does not support this conclusion. Indeed, the relatively minor findings revealed by imaging, as well as the general lack of treatment during the appeal period, both indicate that the Veteran’s left shoulder condition is not as limiting as he claims. As such, the Board declines to assign a 30 percent disability rating under Diagnostic Code 5201 for any portion of the period on appeal. The Board also acknowledges the statements of the Veteran, which allege that his left shoulder condition causes a greater degree of impairment than previously assessed. Under VA regulations, lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). As such, while the Veteran is competent to testify as to the degree of his impairment, the Board finds that his testimony is contradicted by the findings reflected in July 2014 VA examination. Thus, the findings reflected in that evaluation are more probative weight than the lay statements from the Veteran. Because the Veteran is in receipt of a disability rating based on actual limitation of motion under Diagnostic Code 5201, a separate evaluation for painful motion under Diagnostic Code 5003 is not warranted. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Burton v. Shinseki, 25 Vet. App. 1 (2011). Therefore, the Board concludes that the weight of the evidence is against the application of a higher disability rating at any point during the appeal period. To the extent that any higher level of compensation is sought, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran’s claim for a disability rating in excess of 20 percent for a service-connected left shoulder condition is denied. II. PTSD The Veteran seeks a disability rating in excess of 70 percent for service-connected PTSD, which he claims had worsened during the appeal period. Under the General Rating Formula for Mental Disorders, PTSD is evaluated under Diagnostic Code 9411. 38 C.F.R. §§ 4.130. A 70 percent disability rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so)). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-4 or DSM-5). Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Effective August 4, 2014, the VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-4. The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093 (August 4, 2014). The Veteran alleges that his PTSD symptoms were exacerbated in February 2014, when he began to experience harassment by one of his coworkers. The Veteran claims that this coworker would follow him home in a government vehicle, matching his route as he drove. The Veteran reports that this harassment lasted for two months, and states that he had no further interactions with this individual. However, the Veteran asserts that as a result of this harassment, he has become anxious and hypervigilant, in addition to experiencing combat flashbacks. See April 2014 correspondence. The Veteran began seeking mental health treatment in April 2014. A progress note dated that month indicates that the Veteran exhibited no suicidal ideations. Nonetheless, the Veteran stated that he felt on guard all the time and expressed a desire to seek further counseling. The Veteran also stated that he had been off his PTSD medication for several years without any significant symptoms or work-related problems. The record reflects that the Veteran attended several counseling sessions through April and May of 2014. Although the Board was unable to view the contents of these records, its inability to do so is not prejudicial to the Veteran since the record clearly establishes that the Veteran sought treatment in the aftermath of the aforementioned harassment by his coworker. The Veteran underwent a VA psychological examination in July 2014. The examiner conducted an in-person examination of the Veteran and reviewed the claims file, diagnosing him with PTSD under both the DSM-4 and DSM-5 diagnostic criteria. The examiner also diagnosed the Veteran with substance use disorder, secondary to PTSD. However, since the Veteran has been sober since 2004, the examiner determined that his substance use disorder was asymptomatic. As such, the Veteran’s symptoms were attributable solely to his PTSD. The examiner noted that the Veteran has been employed full time by the VA as a peer support supervisor for many years. Nonetheless, the Veteran reported that he had to take time off due to a recent incident and confirmed that he had been subject to other disciplinary action. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks occurring once per week, mild memory loss, and difficulty adapting to stressful circumstances. Based on these findings, the examiner concluded that the Veteran exhibits occupational and social impairment with reduced reliability and productivity. After careful consideration of the evidence, the Board finds that a disability rating in excess of 70 percent for the Veteran’s service-connected PTSD is not warranted for any portion of the period on appeal. The Board notes that the opinion provided by the July 2014 VA examiner is the only statement from a medical professional on record that correlates the Veteran’s PTSD symptoms to the rating requirements of Diagnostic Code 9411. The examiner concluded that the Veteran exhibits occupational and social impairment with reduced reliability and productivity, which is not sufficient to support the award of a 100 percent disability rating. This finding is based on an in-person examination of the Veteran as well as a review of the Veteran’s medical records. Additionally, the examiner is familiar with VA regulations and the specifications of relevant disability ratings. The Board thus affords the greatest weight to the opinion of the July 2014 VA examiner, and adopts his conclusion that the Veteran’s PTSD has not manifested to a level consistent with a 100 percent disability rating under Diagnostic Code 9411 at any point during the appeal period. The Board also acknowledges the statements of the Veteran, which indicate that his PTSD causes a greater degree of impairment than previously assessed. Under VA regulations, lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). As such, while the Veteran is competent to testify as to the degree of his impairment, the Board finds that his testimony is inconsistent with the application of a higher rating. Indeed, the Board notes that the Veteran went years without medicating his PTSD, during which time he reported experiencing no significant symptoms. Although he worked with accommodations, the Veteran was able to retain full-time, gainful employment at the VA. The record suggests that the Veteran was placed on temporary leave in the aftermath of the alleged harassment by a coworker, but shows that he soon returned to his usual work. The Veteran also attended a handful of counseling sessions in April and May 2014, but there is no further evidence of psychological treatment. The Veteran’s ability to maintain a high level of functioning without the aid of medications, as well as his lack of documented mental health treatment after May 2014, indicate that the aggravation of his PTSD symptoms was an acute, transitory event. As such, the Board finds that the opinion provided by the July 2014 VA examiner is more probative than the Veteran’s lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. Thus, that assessment warrants more weight. Therefore, the Board concludes that the weight of the evidence is against the application of a higher disability rating at any point during the appeal period. To the extent that any higher level of compensation is sought, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran’s claim for a disability rating in excess of 70 percent for his service-connected PTSD is denied. REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development is required prior to adjudication of the remaining issue on appeal. The Board has taken jurisdiction over the issue of entitlement to an initial disability rating in excess of 10 percent for service-connected GERD for the limited purpose of ordering corrective action pursuant to 38 C.F.R. § 19.9(c) (2017) (codifying Manlincon, 12 Vet. App. 238). In June 2016, the Veteran filed a Notice of Disagreement (NOD) with a March 2016 rating decision that granted service connection for GERD with an initial disability rating of 10 percent. Typically, when there has been an initial RO adjudication of a claim and an NOD has been filed as to its determination, the veteran is entitled to an SOC. The RO did not acknowledge the Veteran’s June 2016 NOD regarding the issue of entitlement to an initial disability rating in excess of 10 percent even though the NOD was timely. The Board finds that the RO’s failure to acknowledge the NOD and the failure to issue an SOC as to this issue is a procedural defect. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, the Board is taking jurisdiction of the issue of entitlement to an initial disability rating in excess of 10 percent for service-connected GERD for the limited purpose of remanding it for the issuance of an SOC. Id. The title page of this decision has been updated accordingly. The Veteran will then have the opportunity to perfect an appeal as to this issue if he so chooses. The matter is REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an initial disability rating in excess of 10 percent for service-connected GERD. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. After completing the above, and any other development deemed necessary, adjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel