Citation Nr: 18149790 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 14-19 719 DATE: November 13, 2018 ORDER Entitlement to a 20 percent rating for left shoulder strain, for the entire period on appeal is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a 20 percent rating for right shoulder strain, for the entire period on appeal is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an increased rating for depressive disorder not otherwise (NOS) specified in excess of 50 percent is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left arm was limited in motion at the shoulder level. 2. Throughout the period on appeal, the Veteran’s right arm was limited in motion at the shoulder level. 3. The Veteran’s depressive disorder NOS did not manifest symptoms of 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; spatial disorientation; neglect of personal appearance and hygiene. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for left shoulder strain have been met. 38 U.S.C. § 1155, 5103A, 5107; 38 C.F.R. § 4.71a, DC 5299-5024. 2. The criteria for a 20 percent rating for right shoulder strain have been met. 38 U.S.C. § 1155, 5103A, 5107; 38 C.F.R. § 4.71a, DC 5299-5024. 3. The criteria for entitlement to a disability rating in excess of 50 percent for depressive disorder NOS have not been met. U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to February 1996. The Board notes that the October 2018 supplemental statement of the case (SSOC) narrative awarded the Veteran a 20 percent disability for both of his right and left shoulder strain disability claims. However, the Veteran’s subsequent disability payments do not reflect that he is being compensated at a 20 percent disability rate for each of his right and left shoulder disabilities. In accord with the Board’s decision herein, the Agency of Original Jurisdiction (AOJ) should review the Veteran’s compensation records to ensure that he is compensated at the 20 percent disability rate for each of his right and left shoulder disability throughout the entire period on appeal. Increased Rating Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for a left shoulder strain 2. Entitlement to a rating in excess of 10 percent for a right shoulder strain The Veteran contends that his service-connected left and right shoulder disabilities warrant ratings higher than the currently assigned 10 percent disability ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. For the purpose of rating disability from arthritis, the shoulder and cervical spine are each considered a major joint. 38 C.F.R. § 4.45. The Veteran’s right and left shoulder strain are rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5024. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and “99.” 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that an unlisted musculoskeletal disability, under Diagnostic Code 5099, was the service-connected disability, and tenosynovitis, under Diagnostic Code 5024. Under 38 C.F.R. § 4.71a, Diagnostic Code 5024, is evaluated on the basis of limitation of motion, which is found under Diagnostic Code 5201. The Veteran is right handed; the right shoulder disorder affects his major arm. Under Diagnostic Code 5204, limitation of motion to the shoulder level warrants a 20 percent rating for both the major and minor arms. Limitation of the major arm to midway between the side and shoulder warrants a 30 percent rating, while the minor arm warrants a 20 percent rating. Limitation to 25 degrees from the side warrants a 40 percent rating for the major arm while the minor arm warrants a 30 percent rating. In considering the applicability of other diagnostic codes, the Board finds that DCs 5200, 5202, and 5203, which pertain to ankylosis of the shoulder, impairment of the clavicle and scapula, and recurrent dislocations of the scapulohumeral joint, do not apply. Specifically, VA examinations and the treatment records do not show the presence of any of these conditions. Accordingly, the criteria pertaining to those conditions are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. Normal forward flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. In a September 2008 rating decision, the RO granted service connection and assigned 10 percent ratings for each shoulder. The Veteran submitted a claim seeking an increased rating for his service-connected shoulder disabilities in November 2013. The Veteran was given a VA examination in April 2014. The Veteran stated he had pain in both shoulders and although his employment was sedentary, his shoulder was painful while standing, walking or even using the computer. When the Veteran experienced flare-ups, he stated he has to do things more slowly. The Veteran’s range of motion testing with a painful response was as follows: right shoulder flexion was 0 to 90 degrees, abduction was 0 to 85 degrees. The left shoulder flexion was 0-85 degrees and abduction was also 0 to 85 degrees. In May 2014, the Veteran submitted a statement that he believed the April 2014 VA examination was inadequate because the examiner forced his arms above shoulder level during the examination. Pursuant to an April 2018 remand, the Veteran was given a VA examination in August 2018 for his right and left shoulder disabilities. The Veteran’s initial range of motion testing was as follows: right shoulder flexion was 0 to 165 degrees, abduction was 0 to 100 degrees. The left shoulder flexion was 0-150 degrees and abduction was also 0 to 100 degrees. After repeated use, the ROM was: right shoulder flexion was 0 to 160 degrees, abduction was 0 to 90 degrees. The left shoulder flexion was 0-150 degrees and abduction was also 0 to 100 degrees. The examiner stated that the examination was not conducted during flare-ups but the examination was consistent with the Veteran’s complaints during flare-ups. The examiner also reported that there was objective evidence of pain on passive ROM testing of the right and left shoulder, but there was no evidence of pain during non-weight bearing testing of the right and left shoulder. Based on the evidence, the Board finds that a 20 percent rating for each shoulder is warranted. The VA examinations in April 2014 and August 2018 show that the ROM of the Veteran’s right and left arms is limited to shoulder level which warrants a 20 percent disability rating. Even though, the August 2018 VA examination showed slight improvement, the examiner reported that the Veteran also manifested objected evidence of pain during passive motion. Under 38 C.F.R. § 4.59, painful motion of a major joint, such as the shoulder, warrants compensation at the minimum compensable rating for the joint, which under DC5024 is 20 percent. A higher rating is not warranted for either shoulder because the evidence does not support a finding that the ROM of either arm was restricted to midway between his side and shoulder level at any time during the period on appeal. In summary, the preponderance of evidence shows that the Veteran’s is entitled to separate 20 percent ratings, but no higher, for his right and left shoulder strain disabilities. 3. Entitlement to a rating greater than 50 percent for depressive NOS The Veteran contends that his service-connected psychiatric disability warrants a rating greater than 50 percent. The Board finds that the criteria for an increased rating are not met. When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examinations in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Under the provisions of Diagnostic Code 9411, a rating of 100 percent is assignable for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating of 70 percent is assignable 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In a September 2011 rating decision, the RO granted service connection and assigned a 10 percent rating for depressive disorder NOS, effective October 21, 2010. The Veteran filed a claim for increased rating in November 2013. In the May 2014 rating action on appeal, the RO increased the rating to 30 percent, effective November 2013. In a January 2015 rating decision, the evaluation was increased to the current level of 50 percent, November 14, 2013, the date of the claim for increased rating. The Veteran was given a VA examination in April 2014. The VA examiner summarized the Veteran’s occupational and social functioning as: occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily and conversation. The specific symptoms the examiner noted the Veteran had were: depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships, obsessional rituals which interfere with routine activities, intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene and increased irritability. Pursuant to the Board’s April 2018 remand, the Veteran was given a VA examination in June 2018. The VA examiner summarized the Veteran’s occupational and social functioning as: occupational and social impairment with reduced reliability and productivity. The Veteran’s specific symptoms noted by the examiner were: depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner specifically noted that the Veteran was pleasant, cooperative and polite. He communicated well and his speech was normal in rate and tone, with good grammar and vocabulary. He was spontaneous and logical, not inhibited or vague; there were no pressured speech, flight of ideas or loose associations. There were no hallucinations or delusions. The examiner noted the Veteran was not homicidal or suicidal and was not a threat to himself or others. His self-confidence was described as good. The examiner noted the Veteran has depression, psychomotor retardation and anxiety, but no panic attacks. On cognitive examination, the Veteran had some mild irritability; impulse control was good. He has poor sleep, but was oriented times four and alert. His concentration was good. good, insight fair and intelligence a little above average. The examiner further noted that the Veteran lives with his wife and his youngest daughter. He is able to take care of his activities of daily living. He helps out around the house some. He likes to hunt and fish. He works in the yard. He watches a little TV. He and his wife will occasionally get together with friends. He stays in touch with his brother. He gets along with his wife, children, in-laws and friends. He has some difficulty dealing with work relationships. In describing his work capacity, the Veteran said he has some problems dealing with the public. He can deal with coworkers and supervisors, although he prefers to work by himself. He has some problems with work stress, anxiety, irritability, depression and poor sleep. In terms of social impairment, the Veteran said he has become more isolated and just wants to stay at home and not get out much. Based on a review of the record, the Board finds that the criteria for a 70 percent rating are not met or more closely approximated at any time during the appeal period. At no time have the Veteran’s psychiatric symptoms resulted in impairment of occupational and social functioning in most areas of his life. While the Veteran is depressed, he has relationships with his family and continues to work. His cognitive abilities were generally good, including impulse control, concentration, orientation, insight and intelligence. There is no evidence of interference with self-care, daily activities, work tasks, communication with others, or self-control. The Board has also considered the Veteran’s lay statements that his psychiatric disability is worse than currently evaluated; he is competent to report his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology. In summary, the preponderance of the evidence is against assignment of a rating in excess of 50 percent. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel