Citation Nr: 18146539 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-23 787 DATE: October 31, 2018 ORDER Prior to June 14, 2018, a disability rating of 70 percent, and no higher, for posttraumatic stress disorder (PTSD) is granted. Prior to April 26, 2010, a disability rating of 10 percent, and no higher, for the cervical spine/neck disability is granted; however, a rating higher than 20 percent from April 26, 2010, is denied. From June 15, 2018, a disability rating higher than 20 percent for right upper extremity radiculopathy is denied. From June 15, 2018, a disability rating higher than 20 percent for left upper extremity radiculopathy is denied. Service connection for a right arm disorder, due to the already service-connected right shoulder disability, is granted. Prior to October 28, 2008, a compensable disability rating for right shoulder disability, to include right arm muscle group I disability, is denied; a disability rating higher than 10 percent from October 28, 2008, to April 26, 2010, is denied; however, a 30 percent rating, but no higher, is granted from April 26, 2010. FINDINGS OF FACT 1. Giving the Veteran the benefit of the doubt for the period prior to June 14, 2018, his PTSD was manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. Prior to April 26, 2010, the Veteran’s cervical spine disability been manifested by tenderness and spasm. 3. From April 26, 2010, the Veteran’s cervical spine disability been manifested by limitation of motion but not ankylosis. 4. From June 15, 2018, the Veteran’s right upper extremity radiculopathy was manifested by mild, incomplete paralysis. 5. From June 15, 2018, the Veteran’s left upper extremity radiculopathy was manifested by mild, incomplete paralysis. 6. The right arm disorder is due to the already service-connected right shoulder disability. 7. Prior to October 28, 2008, the Veteran’s right shoulder disability was manifested by reports of occasional pain, but no compensable limitation of motion or major problems. 8. From October 28, 2008, to April 26, 2010, the Veteran’s right shoulder disability was manifested by decreased range of motion and occasional pain, but no major problems. 9. From April 26, 2010, the Veteran’s right shoulder disability is manifested by decreased range of motion and occasional pain, and moderately severe muscle group I functional limitation. CONCLUSIONS OF LAW 1. Prior to June 14, 2018, the criteria for a rating of 70 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. Prior to April 26, 2010, the criteria for an initial 10 percent disability rating, and no higher, for the cervical spine disability have been met; however, the criteria for a rating higher than 20 percent from April 26, 2010, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.21, 4.71a, Diagnostic Code 5242 (2017). 3. From June 15, 2018, the criteria for an initial rating higher than 20 percent for the right upper extremity radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321, 4.7, 4.21, 4.124a, Diagnostic Code 8510 (2017). 4. From June 15, 2018, the criteria for an initial rating higher than 20 percent for the left upper extremity radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321, 4.7, 4.21, 4.124a, Diagnostic Code 8510 (2017). 5. The criteria for service connection for a right arm disorder, as due to the service-connected right shoulder disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. Prior to October 28, 2008, the criteria for a compensable right shoulder disability have not been met; from October 28, 2008, to April 26, 2010, the criteria for a disability rating higher than 10 percent for right shoulder disability have not been met; but a 30 percent rating, but no higher, from April 26, 2010, is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321, 4.7, 4.21, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to June 1992. In September 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge by videoconference; a transcript of that hearing is of record. The Board subsequently remanded the Veteran’s claims for additional development. In a May 2018 rating decision, the RO granted a 100 percent disability rating for PTSD (from June 14, 2018) and a total disability rating based on individual unemployability (TDIU). To date, the Veteran has not appealed these issues and at the time of this decision the period in which to appeal has not yet run. As such grants are full grants of these claims the PTSD claim from June 14, 2018 (the period prior to June 14, 2018 continues to be on appeal) and the TDIU claims are no longer before the Board. At that time, the RO also granted bilateral upper extremity radiculopathy, with a 20 percent disability rating (from June 15, 2018). As the radiculopathy matter is part of the cervical spine increased rating claim, that matter continues to be before the Board. Increased Rating 1. Entitlement to a disability rating higher than 50 percent for PTSD, prior to June 14, 2018. The Veteran contends that a disability rating higher than 50 percent is warranted for his PTSD, prior to June 14, 2018. Per a May 2011 decision, the RO granted service connection with a 50 percent disability rating for PTSD, effective April 26, 2010. In a May 2018 rating decision, the RO granted a maximum 100 percent evaluation from June 14, 2018. As such, only the period prior to June 14, 2018, is before the Board. The next higher disability rating is for 70 percent, which is contemplated for 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 work like setting); inability to establish and maintain effective relationships. Giving the Veteran the benefit of the doubt, and given the level of functioning demonstrated by the Veteran and found by the VA medical professionals, a 70 percent disability rating, but not higher, is granted. The April 2011 VA examination made findings consistent with a 50 percent disability rating, finding occupational and social impairment with reduced reliability and productivity. Other medical evidence of record, however, document both moderate and more severe symptoms. One August 2011 VA medical record documented reports that psychiatric symptoms were “crippling” and ongoing passive thoughts of death. Social Security Administration (SSA) evaluations, included a July 2011 finding of PTSD with severe and chronic symptoms, with feelings of being hopeless and helpless to change course. He was not actively suicidal or homicidal, but worried about thoughts of both and impulse control. An August 2011 report found that his memory was borderline to impaired range with impaired attention and concentration. He had significant psychiatric distress and found more complex instructions somewhat difficult. Attention and concentration were impaired. Multi-tasking was difficult and he was easily overwhelmed. He had trouble tolerating stress of day to day work and difficulty getting along with others. In a September 2013 lay statement, K.A. reported witnessing that the Veteran had difficulty remembering day to activities and that he was more agitated and aggressive, as well as, constantly depressed. A November 2015 VA medical record included a report from the Veteran’s wife indicating relationship strain and that the Veteran had strong avoidance behaviors and social isolation. She stated that he would likely not get out of bed each day if not for her continued prompting. During his September 2017 Board hearing, the Veteran reported significant nightmares and difficulty functioning. Although the Veteran does not appear to have all the symptoms consistent with a 70 percent disability rating, given the severity of his symptoms consistent with a 70 percent disability rating (such as ability to function independently, appropriately and effectively; impaired impulse control; difficulty adapting to stressful circumstances), and giving him the benefit of the doubt, the Board finds that a 70 percent disability rating is warranted. However, a disability rating higher than 70 percent is not warranted. Prior to June 2018, his record does not demonstrate total social and occupational impairment, to include as due to symptoms such 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name to warrant a 100 percent evaluation (the next higher rating possible). See 38 C.F.R. § 4.130, Diagnostic Code 9411. VA medical records, private medical records, SSA records, and the April 2011 VA examination have all consistently found no problems with the Veteran’s mental status, including thought process, orientation, and communication. The Veteran behavior has generally been appropriate and he has consistently denied delusions and hallucinations. Medical records also did not show grossly inappropriate behavior or an inability to perform activities of daily living, rather records showed that the Veteran’s appearance/behavior were adequate and that he was independent. He has not indicated a persistent danger of hurting himself or others. In other words, his symptoms are of a similar type, severity, and duration as those associated with a 70 percent rating, but no higher. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As noted above, the Veteran has already been granted a TDIU. Giving the Veteran the benefit of the doubt, the Board finds that, prior to June 14, 2018, a 70 percent disability rating, but no higher, is warranted for his PTSD. 2. Entitlement to higher disability ratings for the neck disability. The Veteran contends that his cervical spine disability is more severe than indicated by his noncompensable rating prior to April 26, 2010, and 20 percent disability rating from that time. Additionally, in a May 2018 rating decision, the RO granted service connection for bilateral upper extremity radiculopathy, with a 20 percent disability rating per extremity (from June 15, 2018). During his Board hearing, the Veteran reported pain varying from a six to severe. Cervical spine disabilities are rated based on limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or spinal contour or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or a combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. Giving the Veteran the benefit of the doubt, prior to April 26, 2010, a 10 percent disability rating, but no higher, is found. Prior to April 26, 2010, private medical records, such as a July 2008 report of severe pain in the neck and numbness in the right hand, show treatment for neck pain, but did not include range of motion or other findings for rating purposes. Additionally, prior to April 26, 2010, the Veteran did not attend his scheduled VA examination or have medical evidence of record with findings for rating purposes. An April 2011 VA examination showed a report of decreased motion, stiffness, weakness, spasm, and constant, severe pain. There was spasm and guarding, tenderness, and weakness on the right but not left. Such muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour is consistent with a 10 percent disability rating. However, a 20 percent disability rating is not indicated as the examiner found normal gait and no abnormal spine curvatures. The Veteran’s range of motion was also not consistent with a 20 percent disability rating or higher, with the most limited findings of flexion to 30 degrees, extension to 40 degrees, left lateral flexion to 30 degrees, left later at rotation to 35 degrees, right lateral flexion to 45 degrees, and right lateral rotation to 80 degrees. As such, giving the Veteran the benefit of the doubt, the Board finds that a 10 percent disability rating, and no higher for the cervical spine disability is warranted, prior to April 26, 2010. Both prior to and after April 26, 2010, a disability rating more than 20 percent has not been supported by the record. A disability evaluation of 30 percent would be warranted upon a showing of favorable ankylosis of the entire cervical spine or forward flexion of the cervical spine of 15 degrees or less. The July 2011 SSA evaluation found range of motion findings inconsistent with a compensable rating, with flexion to 40 degrees, extension to 60 degrees and rotation to good value. There was no kyphosis or scoliosis, redness, swelling, or tenderness. The June 2018 VA examiner also made range of motion findings more than 15 degrees of forward flexion. The ranges of motion found of record are not consistent with a 30 percent disability rating. Additionally, for both prior to and after April 26, 2010, a disability rating higher than 30 percent is not warranted based on ankylosis of the spine. Ankylosis, for purposes of this decision, is defined as fixation of a joint in a particular position. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5). The evidence of record, showing range of motion on medical records and in VA examinations, has repeatedly and consistently shown that the Veteran does not have ankylosis of the spine. The Veteran has also not reported ankylosis and there is no other lay evidence in support of such a finding. Given the ranges of motion found by the examiners, including specific findings of no ankylosis, the evidence is against a finding that the Veteran has ankylosis. The Board acknowledges the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The June 2018 VA examiner noted pain on passive motion but did not indicate additional limitation and specifically found that as the cervical spine is not a weight bearing joint, such testing would not be possible. Additionally, the medical evidence of record, including VA examinations, have not shown that the Veteran has been prescribed bed rest for incapacitating episodes. As such, rating him under Diagnostic Code 5243, based on incapacitating episodes, is not warranted. Indeed, the June 2018 VA examiner specifically found no such incapacitating episodes. The Board must also evaluate any associated objective neurological abnormalities separately under an appropriate diagnostic code. Under Note 1, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. As noted above, the Veteran has been granted separate ratings for radiculopathy of the right and left upper extremities as related to the service-connected cervical spine disability, with a 20 percent disability rating for each extremity, effective June 15, 2018 – the date of the last VA examination. Under Diagnostic Code 8510 for the upper radicular group (fifth and sixth cervicals) (or 8710 for neuralgia of the same group), a minimum 20 percent rating is assigned for mild incomplete paralysis; a 40 percent rating is assigned for moderate incomplete paralysis of the major extremity and 30 percent for the minor extremity; a 50 percent rating is assigned for severe incomplete paralysis of the major extremity and a 40 percent disability rating for the minor extremity. A maximum 70 percent rating is assigned for complete paralysis, with all shoulder and elbow movements lost or severely affected, and hand and wrist movements not affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510. Per VA examinations, the Veteran is right hand dominant. Prior to June 15, 2018, the record did not show findings of right or left upper extremity radiculopathy. A May 2008 private EMG study found carpal tunnel syndrome to the right, but not radiculopathy. A February 2009 VA examination included an opinion that the Veteran’s carpal tunnel syndrome was not related to the shoulder condition or in-service injury. The April 2011 VA examination noted no history of urinary or fecal or erectile dysfunction. The examiner found no abnormal sensory examination findings. A July 2011 SSA evaluation similarly found sensory examination was normal. In a November 2017 VA medical record, the Veteran complained of bilateral hand pain, numbness and locking in the thumbs. The provider noted a 2013 EMG finding showed “Conclusion: This is an abnormal study. There is electrodiagnostic evidence of median neuropathy across the wrist, compatible with mild right carpal tunnel syndrome. There is no evidence of right cervical radiculopathy.” The first indication of radiculopathy was the June 2018 VA examination. For the upper radicular group and middle radicular group, of mild severity bilaterally. At that time, no EMG was performed and prior ones do not appear to have been reviewed by the VA examiner. As there was no evidence of radiculopathy of the bilateral upper extremity prior to June 15, 2018, a rating is not warranted. From June 15, 2018, there is no evidence of record of more than mild severity radiculopathy, as such a disability rating higher than 20 percent is not warranted from that time. Additionally, there is no evidence of any other neurological abnormality due to the service-connected cervical spine disability. As such, there is no indication of any additional rating for any other neurological impairment. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, supra. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). Prior to April 26, 2010, a disability rating of 10 percent, and no higher, for the cervical spine disability is granted. From April 26, 2010, a disability rating higher than 20 percent for the cervical spine disability is denied. A disability rating higher than 20 percent for the right and left upper extremity radiculopathy, from June 15, 2018, is denied. 3. Entitlement to service connection for a right arm disorder and entitlement to higher disability ratings for the right shoulder disability. The Veteran contends that he has a right arm disorder due to his service-connected right shoulder disability. The June 2018 VA examiner opined that the Veteran’s right arm disorder is at least as likely as not related to his status-post right shoulder acromioclavicular (AC) separation and right shoulder disability. The Veteran fractured his right clavicle resulting in the resection of the lateral end of the right clavicle. Due to the resection, greater tension and strain was placed on the muscle of the shoulder girdle. The muscles of the shoulder girdle were serratus anterior, pectoralis minor, levator scapulae, rhomboids and trapezius. As noted by the RO in the September 2018 rating decision, the implicated symptoms of the right arm disability are generally the same as those of the already service-connected right shoulder disability, with ability to move considered. Given the findings of the June 2018 VA examiner, the Board finds that service connection for a right arm muscle group I disability is warranted as part of the already service-connected right shoulder disability. The Board turns to considering rating the combined right shoulder and arm disability. The Veteran has previously been rated with a noncompensable rating prior to October 28, 2008, a 10 percent disability rating from October 28, 2008, to April 26, 2010, and a 20 percent disability rating from April 26, 2010. For all three periods, the Board finds that the right shoulder has no ankylosis of the scapulohumeral articulation and no malunion, nonunion, or dislocation impairment of the clavicle or scapula. (April 2011 and June 2018 VA examinations). Indeed, the June 2018 VA examiner specifically found no ankylosis, acromioclavicular joint conditions or other impairment of the clavicle or scapula. Thus, a compensable rating under Diagnostic Code 5200 or Diagnostic Code 5203 is not met for the right shoulder at any time during the appeal period. As such, the Board will consider rating the right shoulder disability based on limitation of motion, under Diagnostic Code 5201 for limitation of motion of the arm or Diagnostic Code 5202 for impairment of the humerus. Prior to October 28, 2008, during which a noncompensable rating was in effect, VA medical records and private medical records generally did not include findings for rating purposes. At most, a July 2008 private medical record documented that the Veteran had full symmetric range of motion, painful on the right side. Given such evidence of record, a compensable disability rating under Diagnostic Code 5201 or 5202 is not supported by the record. As the Board has found that the Veteran’s shoulder disability includes the right arm muscle injury, Diagnostic Code 5301 for group I muscle injuries has alternatively been considered for rating purposes. Group I function includes upward rotation of the scapula and elevation of arm above shoulder, which is the same functional limitations considered by the range of motion findings considered above. Under Diagnostic Code 5301, slight impairment is noncompensable, moderate impairment warrants a 10 percent disability rating, moderately severe warrants 30 percent, and severe warrants 40 percent. Prior to October 28, 2008, as explained above, the Veteran’s right shoulder disability did not demonstrate impairment of movement. As such limitation would be of a slight level at most, it would not warrant more than a noncompensable under Diagnostic Code 5301. From October 28, 2008, to April 26, 2010, the record is generally silent as to evidence for rating purposes. The Veteran did not attend his scheduled VA examination in August 2009, which would have provided pertinent information. At most, an October 28, 2008, private medical record documented flexion to 150 degrees, abduction to 144 degrees, with severe pain over the joint. Another private medical record from October 2008 documented right shoulder with full range of motion and no obvious muscle wasting or swelling. The RO appears to have granted a 10 percent disability rating based on those findings of limited motion due to pain of a major joint. However, the range of motion findings are not consistent with a 20 percent disability rating or higher under Diagnostic Code 5201. Similarly, there was no indication of recurrent dislocation, malunion, fibrous union, or flail joint or shoulder for a rating higher than 0 percent under Diagnostic Code 5202. Additionally, under Diagnostic Code 5301, more than moderate impairment was not indicated given the range of motion and no indication of more than moderate muscle impairment. As such, from October 28, 2008, to April 26, 2010, a disability rating higher than 10 percent for the right shoulder disability is not warranted. From April 26, 2010, the RO granted a 20 percent disability rating based on limitation of flexion and rotation at the shoulder level. The medical evidence of record during that time period, including VA examinations that do not support finding a rating higher than 20 percent under Diagnostic Code 5201 or 5202. The range of motion findings of both the April 2011 and June 2018 VA examiners were in excess to limitation of motion between side and shoulder level or to 25 degrees, for a rating under Diagnostic Code 5201. Other medical records that included range of motion findings made similar findings of range of motion not warranting a rating higher than 20 percent under Diagnostic Code 5201. For example, a September 2011 VA medical record noted abduction to 100-110 degrees. A July 2011 SSA record documented shoulder flexion to 120 degrees. A January 2016 private medical record documented active elevation to 110 degrees. A September 2017 VA medical record documented range of motion for flexion to 80 degrees, abduction to 120 degrees, and internal rotation to 70 degrees. An April 2018 VA medical record documented active range of motion of 110 degrees and passive o 170 degrees. The June 2018 VA examiner diagnosed him with shoulder impingement syndrome, rotator cuff tendonitis, status-post right shoulder acromioclavicular fracture, and trapezius strain. The examiner noted contributing factors of weakened movement due to muscle injury or peripheral neuropathy or lengthened tendons, and a history of recurrent dislocation and guarding of arm movement. However, the examiner was unclear as to whether such episodes were frequent or infrequent for rating purposes under Diagnostic Code 5202. Regardless, as will be explained below, such failure is not prejudicial to the Veteran as the Board is alternatively granting a 30 percent disability rating under Diagnostic Code 5301, which would be the maximum rating possible for the Veteran based on such dislocations. A rating of 30 percent would be warranted for moderately severe impairment. Giving the Veteran the benefit of the doubt, the Board finds that such moderately severe impairment is indicated, given the Veteran’s limitation of motion, in conjunction with muscle impairment, such as weakened movement, loss of power, and fatigue pain; as well as, recurrent dislocations found by the June 2018 VA examiner. The maximum 40 percent disability rating, however, is not supported. The VA examiner did not find the muscle injury affected muscle substance or function and the Veteran has repeatedly been shown to demonstrate a limitation of motion of less than a severe level. For the right shoulder, the Board has also considered the Veteran’s disability at times of flare-up; however, the evidence fails to show that such symptoms result in functional loss of arm motion for higher ratings at any time during the appeal periods. Neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette, supra. The Board finds that prior to October 28, 2008, a compensable disability rating for the right shoulder disability is not warranted. From October 28, 2008, to April 26, 2010, a disability rating higher than 10 percent is not warranted. From April 26, 2010, a 30 percent disability rating, and no higher, is granted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio