Citation Nr: 18145015 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 18-28 482 DATE: October 25, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection an anxiety disorder is granted. Entitlement to service connection for a back disability is denied. Entitlement to a rating of 20 percent, but no higher, for a right shoulder disability is granted. Entitlement to an initial evaluation of 20 percent, but no higher, for a left shoulder disability is granted. Entitlement to a rating in excess of 10 percent for hypertension is denied. FINDINGS OF FACT 1. The Veteran does not have a current disability of PTSD. 2. The Veteran’s anxiety disorder was caused by his active service. 3. The Veteran’s current back disability was not incurred in or caused by his active service. 4. The Veteran is right-hand dominant. 5. The Veteran’s right shoulder condition is characterized by limitation of motion of the right arm to shoulder level; the Veteran has not exhibited range of motion limited to midway between the side and shoulder level or to 25 degrees from the side. 6. The Veteran’s left shoulder condition is characterized by limitation of motion of the left arm to shoulder level; the Veteran has not exhibited range of motion limited to midway between the side and shoulder level or to 25 degrees from the side. 7. The Veteran’s diastolic pressure has not been predominantly 110 or more, and his systolic pressure has not been predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not all been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for anxiety disorder have all been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for service connection for a back disability have not all been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria required for a rating of 20 percent, but no higher, for a right shoulder disability have all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.69, 4.71a, Diagnostic Codes (DC) 5003, 5201 (2017). 5. The criteria required for a rating of 20 percent, but no higher, for a left shoulder disability have all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.69, 4.71a, DC 5019, 5201 (2017). 6. The criteria for a rating in excess of 10 percent for hypertension have not all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.104, DC 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1998 to November 1998 and from December 2003 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on July 13, 2018. However, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. PTSD The Veteran contends that he has PTSD due to in-service stress, to include being discriminated against and unnecessary pressure. To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Board finds there is no probative evidence in the record showing that the Veteran has a diagnosis of PTSD. The Veteran attended a VA examination in March 2015. The examiner found that the Veteran did not have a diagnosis of PTSD that conforms to the DSM-5 criteria. The Veteran reported his stressor as in-service stress, to include being discriminated against, and unnecessary pressure. The examiner stated that the Veteran’s reported stressor was not adequate to support a diagnosis of PTSD. The Veteran’s VA medical center treatment records also do not indicate a diagnosis of PTSD. The records note “possible PTSD” but do not indicate a diagnosis of PTSD based a complete mental status examination of the Veteran and/or objective medical findings. The medical records also indicate negative PTSD screens on a number of occasions. Therefore, the Board finds the March 2015 VA examiner’s report the most probative evidence regarding the Veteran’s current diagnosis as the examiner considered the medical record, the Veteran’s statements, and it is consistent with the VA medical center treatment notes. The Board acknowledges the Veteran’s contention that he currently has PTSD that is related to his period of service. However, whether the Veteran meets the required diagnostic criteria for PTSD is a complex medical question, and is not within the realm of knowledge of a lay person or determinable by observation with one’s senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Accordingly, the Veteran’s statement is not competent evidence and not probative. Without a current diagnosis of PTSD, the first requirement for establishing service connection for PTSD has not been met. Therefore, the Board finds the preponderance of the evidence is against the claim for service connection for PTSD. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Anxiety Disorder The Veteran contends that his anxiety disorder is related to his service. The March 2015 VA examiner stated the Veteran had a diagnosis of an unspecified anxiety disorder. The Veteran’s VA medical center records also indicate a diagnosis of anxiety disorder. As such, the first element of service connection has been met. The Veteran reported to his VA medical center providers that he started having intense anxiety during his active duty service in Kuwait. The Veteran reported these symptoms occurred due to stress during active service, including the amount of work performed and discrimination. The Veteran first reported symptoms of anxiety in to a VA medical center in July 2008, approximately 3 and a half years after his active service. He reported insomnia and nervousness, and was diagnosed with anxiety in 2009. The Veteran’s medical provider stated that a review of the Veteran’s reported in service symptoms reveals that they were panic attacks. The Veteran reported that these attacks continued when he returned home, though they decreased in frequency. The medical provider’s assessment was that the Veteran probably displaces much of his anger and fear, contributing to a build-up that was released as panic attacks. He also stated that the Veteran’s feeling that he was trapped in an unpleasant situation in service likely contributed to his panic attacks. The Veteran attended a VA examination in March 2015. The examiner found that the Veteran had a diagnosis of unspecified anxiety disorder. The examiner stated it was less likely than not that the Veteran’s anxiety disorder was incurred in or caused by the claimed in-service injury, event, or illness. He stated that the anxiety disorder has no temporal relationship with military stressors. The examiner also stated that the Veteran sought psychiatric treatment in 2012, 7 years after discharge from the military. The Board accords little probative weight to the VA examiner’s opinion regarding anxiety. First, the examiner based his opinion entirely on the time gap between the Veteran’s discharge from service and his treatment. However, the examiner stated that the Veteran received treatment in 2012, when in fact he first reported symptoms in 2008 and was diagnosed with an anxiety disorder in 2009. Moreover, the examiner did not consider the Veteran’s statements made to his treating provider that he experienced anxiety during service. As such, the opinion is not probative as to the question of whether the Veteran’s anxiety disorder was related to his active service. The Board finds the Veteran’s statements that he experienced anxiety in service credible. As such, the second element of service connection has been met. As noted above, the Veteran has reported that these symptoms have continued since service. Considering the medical provider’s assessment that the Veteran’s anger, fear, and feeling of being trapped in service contributed to his panic attacks, the evidence is at least in equipoise regarding whether the Veteran’s current anxiety was related to his active service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds a sufficient nexus has been established between the Veteran’s current anxiety and his active service. As such, entitlement to service connection is warranted for an anxiety disorder. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Back Disability The Veteran contends his back pain is related to service and is the result of working as a mechanic in service, including carrying heavy loads as part of his daily duties. The Board finds the preponderance of the evidence is against finding that the Veteran’s low back disability is related to his active service. The March 2015 VA examiner found the Veteran had a diagnosis of sacroiliac (SI) joint degenerative changes. As such, the first element of service connection has been met. The Board acknowledges that that the Veteran served as a mechanic and he is competent to report his job duties, including carrying heavy loads. However, the Veteran’s service treatment records (STRs) do not indicate he reported back pain during service. Of note, the Veteran was treated for a variety of injuries and other orthopedic conditions in service. He reported and was treated for bilateral shoulder pain and a head injury. However, his STRs do not indicate he was treated for back pain. The Board notes that on his February 2005 post-deployment health assessment, the Veteran reported he developed back pain during service. However, later in the assessment he indicated that he did not have any medical or dental problems that developed during the deployment, and he did not have any concerns about possible exposures or events during his deployment that may affect his health. As this assessment in internally inconsistent, the Board finds that it is of little probative weight. Post-service, the Veteran attended a 2005 general VA medical examination in conjunction with his claim of service connection for a shoulder disability. The Veteran’s lumbar spine range of motion was normal and the Veteran reported no pain on motion and no lack of endurance or fatigue with repetitive movement. In July 2007, the Veteran reported lumbar pain at a VA medical center and was diagnosed with a muscle spasm. The Veteran attended a VA examination in March 2015. The examiner determined the Veteran has a diagnosis of SI joint degenerative changes. The examiner stated that it was less likely than not that the Veteran’s back disability was related to his miliary service. The examiner stated that the Veteran’s STRs are silent for any joint degenerative changes or for any recurrent back pain. The Board acknowledges a private provider letter dated November 2012 indicating that the Veteran carried heavy loads in service, which caused him to injury his shoulder, all of which cause loss of correct alignment and loss of curvature of the lumbar spine. The physician stated that it was at least as likely as not that the Veteran’s back problem was service connected. The Board accords this opinion little probative weight. First, the physician does not identify a current back disability diagnosis. In addition, the physician’s rationale is broad and does not specifically address the Veteran’s medical conditions. She does not identify if the Veteran himself had a loss of curvature of the spine, or how this was related to a current diagnosis. As such, this opinion is not probative regarding whether the Veteran’s current disability of SI degeneration was related to his active service. The Board finds the VA examiner’s opinion the most probative evidence regarding whether the Veteran’s current back disability was related to his service. In addition, as noted above, there is no probative evidence of record of an in-service incurrence of a disease or injury related to the Veteran’s current back disability. The Board has also considered the Veteran’s statements that his current back disability is related to his service. However, whether the Veteran’s back disability is related to his active service is a complex medical question, and is not within the knowledge of a lay person or determinable by observation with one’s senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran’s statement is not competent evidence and not probative. The claims file does not contain any probative evidence relating the Veteran’s back disability to his service. As such, the preponderance of the evidence is against finding the Veteran’s current back disability is service connected. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). 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 nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 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). 1. Right and Left Shoulder Disabilities The Veteran contends he is entitled to a higher rating for his right and left shoulder disabilities. The Veteran’s right shoulder disability is currently rated as 10 percent disabling. 38 C.F.R. § 4.71a, DC 5099-5003. 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 rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran’s left shoulder disability is currently rated as 10 percent disabling. 38 C.F.R. § 4.71a, DC 5201-5019. Diagnostic Code 5003 provides that 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 the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is applicable to each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under DC 5201, a 20 percent disability rating is contemplated for limitation of motion of the major or minor arm at shoulder level or for limitation of the minor arm to midway between side and shoulder level. A 30 percent disability rating is warranted for limitation of the major arm to midway between side and shoulder level or when motion of the minor arm is limited to 25 degrees from the side. A 40 percent disability rating is warranted when motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The Veteran is right hand dominant. When evaluating the left shoulder disability, minor, as opposed to major, extremity disability ratings will be applicable. When evaluating the right shoulder disability, major, as opposed to minor, extremity disability ratings will be applicable. 38 C.F.R. § 4.69. The standard ranges of motion of the shoulder are 180 degrees for forward elevation (flexion) and 180 degrees for abduction. The standard range of motion for internal and external rotation is 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran attended a VA examination in March 2015. The examiner found the Veteran’s right shoulder range of motion was flexion to 110 degrees, abduction to 110 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees after three repetitions. The Veteran’s left shoulder range of motion was flexion to 110 degrees, abduction to 95 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees after three repetitions. The Veteran reported pain on range of motion and the examiner found that this pain contributed to functional limitation; specifically the Veteran was limited for overhead activities. The Veteran reported flare-ups of his shoulders. He stated that during flare-ups he needs to limit his arm movement. He stated that he feels limited for all activities that require arm elevation. The examiner further found that the Veteran did not have ankylosis of either the right or left shoulder. He did find a right and left rotator cuff condition was suspected as the Veteran had a positive Hawkins’s impingement test and empty-can test on both shoulders. In addition, the examiner stated that a clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition was suspected. He identified tenderness on palpation of the AC joint and a positive cross-body test. Considering the Veteran’s report of flare-ups, and his description of pain and range of motion during those flare-ups, as well as the VA examiner’s finding that the Veteran would be limited in overhead activities, the Board finds that the Veteran’s range of motion during flare-ups has been limited to his shoulder level. As such, the Veteran’s right and left shoulder disability most closely approximates the 20 percent criteria. A rating in excess of 20 percent is not warranted because the Veteran’s medical records and subjective statements do not indicate that he has had range of motion of the right and left arm limited to midway between his side and shoulder level. The Board observes that the rating schedule contains additional diagnostic codes pertaining to the shoulder and arm. See 38 C.F.R. § 4.71a, DCs 5200, 5202, and 5203. The Board has considered whether an increased evaluation would be in order under other relevant diagnostic codes, but finds that the criteria for a rating in excess of 20 percent are not met. The medical evidence of record does not show scapulohumeral articulation ankylosis, which is required for a rating under DC 5200. In addition, the record does not indicate impairment of the humerus required for a rating under DC 5202. The Board notes that the VA examiner did identify a clavicle or scapula condition. However, the examiner did not identify a dislocation, nonunion, or malunion, which is required for a rating under DC 5203. Without these conditions, DC 5203 indicates the impairment should be rated on the function of the contiguous joint. As noted above, the Veteran’s disabilities are currently rated based on the range of motion of the shoulder, and as such his symptoms are adequately accounted for. Therefore, the preponderance of the evidence supports finding that the Veteran’s right and left shoulder disability each meet the rating criteria for 20 percent disabling, but no higher. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Hypertension The Veteran hypertension is currently rated as 10 percent disabling. 38 C.F.R. § 4.104, DC 7101. Under DC 7101, hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, is rated 10 percent disabling. 38 C.F.R. § 4.104, DC 7101. Hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, is rated 20 percent disabling. Id. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Id. Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Id. Note (1) to DC 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104. During the pendency of the appeal, the Veteran’s highest recorded diastolic pressure was 90 and his highest systolic pressure was 139, as recorded on the VA examination in March 2015. The examiner found that the Veteran’s treatment plan included taking continuous medication for hypertension. Therefore, the Veteran’s disability does not approximate the criteria for a rating in excess of 10 percent. (CONTINUED ON NEXT PAGE)   For these reasons, the preponderance of the evidence is against assigning a schedular rating higher than 10 percent for hypertension. As such, the appeal as to a higher rating for this disability must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel