Citation Nr: 18154417 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-22 489 DATE: November 29, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for a left shoulder strain with tendonitis is denied. Entitlement to a disability rating in excess of 10 percent for a left hip strain is denied. Entitlement to a disability rating of 50 percent for migraines is granted. Entitlement to a disability rating of 70 percent for major depressive disorder is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for a cervical strain is remanded. Entitlement to a compensable disability rating for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected left shoulder strain with tendonitis has been manifested by subjective complaints of pain, left shoulder flexion to no worse than 170 degrees, and abduction to no worse than 170 degrees. 2. The Veteran’s service-connected left hip strain has been manifested by subjective complaints of pain and flexion of no worse than 100 degrees; but no ankylosis, limitation of extension, limitation of abduction, flail joint, or impairment of the femur has been shown. 3. The Veteran’s service-connected migraines have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. The Veteran’s service-connected major depressive disorder has been manifested by 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 ideations. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for a left shoulder strain with tendonitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5201 (2018). 2. The criteria for an initial disability rating in excess of 10 percent for a left hip strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, Diagnostic Code 5252 (2018). 3. The criteria for a disability rating of 50 percent for migraines have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, Diagnostic Code 8100 (2018). 4. The criteria for a disability rating of 70 percent for a major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, Diagnostic Code 9434 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2008 to October 2011. In June 2015, the Veteran filed an appeal, stating that her service-connected disabilities warranted higher ratings and that she was entitled to a TDIU. The Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that when entitlement to TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. As such, the Board will consider entitlement to TDIU. In the decision below, the Board has addressed whether the Veteran is entitled to increased ratings for her service-connected left shoulder, left hip, migraines and depression. The remaining claims are addressed in the REMAND section below. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). 1. Entitlement to a rating in excess of 10 percent for a left shoulder strain with tendonitis. The Veteran’s left shoulder strain with tendonitis has been rated pursuant to the criteria of Diagnostic Code 5201, as set forth in 38 C.F.R. § 4.71a. Under Diagnostic Code 5201, the minor shoulder is rated as follows: a 20 percent rating is warranted for limitation of motion to shoulder level (90 degrees) or for motion limited midway between the side and shoulder level (less than 90 degrees but more than 25 degrees); and, a 30 percent rating is warranted for motion limited to 25 degrees or less from the side. Here, the Veteran’s left shoulder is her minor shoulder. Normal ranges of motion of the shoulder are flexion (forward elevation) 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. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Here, the Veteran was granted service connection for a left shoulder strain in a January 2013 rating decision, and assigned a rating of 10 percent based on painful motion. The Veteran appealed, claiming she is entitled to a higher rating. After review of the medical and lay evidence in this case, the Board finds that a disability rating in excess of 10 percent is not warranted. The Veteran underwent a VA examination of her left shoulder in November 2012. The examiner noted a diagnosis of left shoulder strain. Upon physical examination, the examiner noted the Veteran’s forward flexion to be to 170 degrees; and her abduction to be to 170 degrees. The examiner noted no functional loss for the left shoulder after repetitive use testing. There was no ankylosis of the shoulder joint. The examiner noted November 2012 x-rays show the left shoulder to be within normal limits. VA treatment records from the Central Texas VAMC are associated with the Veteran’s claims file. In summary, these records reflect the Veteran complained of left shoulder pain on occasion, which was treated with cream, and that x-rays showed the left shoulder appeared normal. Upon review of the relevant medical evidence, the Board finds that the Veteran’s symptoms are consistent with the 10 percent rating currently assigned, based on the degree of flexion and abduction, which were reported in the range of 170 degrees when measured during the November 2012 examination. To obtain a higher rating for the Veteran’s left shoulder strain with tendonitis, it is necessary to show motion limited to at least shoulder level for a 20 percent rating. However, the Veteran’s flexion and abduction were no worse than 170 degrees. Thus, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s left shoulder strain with tendonitis. The Board has considered whether a higher evaluation would be warranted under another potentially applicable diagnostic code. However, there is no medical evidence of ankylosis of the scapulohumeral articulation resulting in abduction to 60 degrees (Diagnostic Code 5200) or any impairment of the humerus (Diagnostic Code 5202). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for a left shoulder strain with tendonitis, and the claim is denied. 2. Entitlement to a rating in excess of 10 percent for a left hip strain. The Veteran’s left hip strain has been rated pursuant to the criteria of Diagnostic Code 5252, which governs limitation of flexion. Diagnostic Code 5252 provides a 40 percent disability rating for flexion limited to 10 degrees; a 30 percent disability rating for flexion limited to 20 degrees; a 20 percent disability rating for flexion limited to 30 degrees; and a 10 percent disability rating for flexion limited to 45 degrees. Here, the Veteran was granted service connection for a left hip strain in a January 2013 rating decision, and assigned a rating of 10 percent. The Veteran appealed, claiming she is entitled to a higher rating. After review of the medical and lay evidence in this case, the Board finds that a disability rating in excess of 10 percent is not warranted. The Veteran underwent a VA examination of her left hip sprain in November 2012. The examiner noted a diagnosis of left hip strain in January 2010 and November 2012. Upon physical examination, the examiner noted the Veteran’s left hip flexion to 100 degrees; left hip extension ends at greater than 5 degrees; there was no abduction lost beyond 10 degrees; abduction was not limited such that the Veteran cannot cross legs; rotation was not limited such that the Veteran cannot toe-out more than 15 degrees; and, there was no ankylosis. The examiner also noted that November 2012 imaging studies showed the Veteran does not have arthritis in her left hip and that her left hip was within normal limits. VA treatment records from the Central Texas VAMC are associated with the Veteran’s claims file. These records do not reflect complaints of left hip pain. Upon review of the relevant medical evidence, the Board finds that the Veteran’s symptoms are consistent with the 10 percent rating currently assigned, based on the limitation of flexion. To obtain a higher rating for the Veteran’s left hip strain, it is necessary to show flexion limited to 45 degrees or less. For this period on review, however, the Veteran’s forward flexion was no worse than 100 degrees. Thus, a rating higher than the 10 percent currently assigned is not warranted. A separate rating or a rating higher than 10 percent is further not warranted under any other Diagnostic Code. Here, there is no showing that there is ankylosis of the hip (Diagnostic Code 5250); limitation of extension limited to 5 degrees (Diagnostic Code 5251); limitation of abduction beyond 10 degrees, limitation of adduction preventing crossing legs, or rotation limited to 15 degrees (Diagnostic Code 5253); flail joint (Diagnostic Code 5254); or impairment of the femur (Diagnostic Code 5255). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for a left hip strain, and the claim is denied. 3. Entitlement to a rating in excess of 30 percent for migraines. The Veteran’s migraines have been rated pursuant to the criteria of Diagnostic Code 8100. Diagnostic Code 8100 provides a 10 percent rating for headaches manifested by characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for headaches manifested by characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating,” nor has the Court. Here, the Veteran was granted service connection for migraines in a January 2013 rating decision, and the migraines are currently assigned a rating of 30 percent. The Veteran appealed, claiming she is entitled to a higher rating. After review of the medical and lay evidence in this case, the Board finds that a disability rating of 50 percent is warranted. The Veteran underwent a VA examination of her migraines in November 2012. The examiner noted a diagnosis of migraines in March 2010; a diagnosis of tension headaches in June 2011; and, a diagnosis of headache NOS in November 2012. Upon examination, the examiner noted the Veteran has very frequent prostrating and prolonged attacks of non-migraine headache pain that occur more frequently than once per month. VA treatment records from the Central Texas VAMC are associated with the Veteran’s claims file. In summary, these records reflect the Veteran had complaints of chronic migraines/headaches for which she was often prescribed medication. An August 2015 private medical examination of the Veteran reflects the examiner diagnosed the Veteran with severe migraines and tension headaches. The examiner noted the Veteran has very frequent completely prostrating and prolonged attacks, which are completely debilitating; that her migraine and non-migraine variants occur on average 2-3 times per week; and, that these attacks result in severe economic adaptability. The examiner also noted the Veteran must go to a quiet dark room and lie down. Based on a review of the evidence, the Board finds that the preponderance of the evidence of record supports a finding that the Veteran experiences very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. This conclusion is supported by the medical evidence of record, to include in particular the Veteran’s November 2012 VA examination and the August 2015 private examination in which both examiners stated the Veteran has very frequent prostrating attacks. Accordingly, a rating of 50 percent, which is the maximum possible rating for migraines, is warranted. 4. Entitlement to a rating in excess of 50 percent for major depressive disorder. The Veteran’s major depressive disorder has been rated pursuant to the criteria of Diagnostic Code 9434 under the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent evaluation will be assigned with evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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 ideations; 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 the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 the 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. Here, the Veteran was granted service connection for major depressive disorder in a January 2013 rating decision, and it is currently assigned a rating of 50 percent. The Veteran appealed, claiming she is entitled to a higher rating. After review of the medical and lay evidence in this case, the Board finds that a disability rating of 70 percent is warranted. The Veteran underwent a VA examination for mental disorders in December 2012. The examiner noted the Veteran was diagnosed with major depressive disorder and anxiety disorder, NOS. The examiner noted the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week and chronic sleep impairment. Other symptoms were described as being irritated or angry most of the time, feelings of worthlessness, guilt, self-disdain, anhedonia, punishment, self-criticism, agitation/restlessness, loss of interest in activities and others, indecision, irritability, difficulty concentrating and fatigue. The Veteran reported she is anxious when she drives and gets very angry, often yelling and screaming at other drivers; and, that her sister and mother have noted her anger. The examiner noted the Veteran denied suicidal intent or plan, but has passive suicidal thoughts. She denied homicidal thoughts. The examiner opined the Veteran’s level of occupational and social impairment is with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. VA treatment records from the Central Texas VAMC are associated with the Veteran’s claims file. These records reflect the Veteran attempted suicide in February 2014 by shooting herself in the forehead, sustaining a fracture to her skull. Subsequent records reflect the Veteran was added to the “Suicide Prevention High Risk for Suicide List”; she was scheduled for weekly individual or phone appointments for one month and monthly thereafter; and, a safety plan was to be completed. April 2014 records reflect the Veteran was a “no show” for several mental health appointments and it was determined that she does have significant risk factors for self-harm. A January 2015 record reflects the Veteran reported for medication management and individual therapy surrounding coping skills and management of her psychiatric illness. Upon review of the relevant medical evidence, the Board finds that the Veteran’s symptoms warrant a 70 percent rating, as the Veteran’s symptoms are severe and include a suicide attempt. Although some treatment records appear to reflect milder psychiatric symptomatology, the majority of the treatment records are more consistent with a 70 percent disability rating. The Board further finds, however, that a rating of 100 percent is not appropriate in this case at any point during the appeal period. This is so because the record does not reflect that, at any time during the appeal period, the Veteran has exhibited symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 100 percent rating, such as gross impairment in thought process 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; or memory loss for names of close relatives, own occupation, or own name. The Veteran’s reported social functioning has been fairly consistent throughout the period on appeal, with social isolation and some interaction. Thus, while limited, she was still able to continue relationships with some people. Although she experienced unemployment during the appeal period, a rating of 100 percent is only warranted for both total social and total occupational impairment due to his PTSD. The Board concludes the criteria for a 100 percent rating for PTSD have not been met at any point during the period on appeal. 38 C.F.R. § 4.130, DC 9411. The Veteran’s own reports at various evaluations regarding how her PTSD impacts her, overall, would provide additional evidence against this claim, clearly indicating the level of symptomatology cited within the 100 percent rating have not been met in this case. In summary, while the Veteran is significantly socially limited by her service-connected PTSD, the evidence during the period on appeal fails to show that this impairment is total so as to warrant a 100 percent rating. Based on the foregoing discussion, the Board finds that Veteran’s PTSD more nearly approximates the rating criteria for a 70 percent rating during the entire period on appeal. In conclusion, the Board finds that, for the relevant period on appeal, the Veteran’s major depressive disorder symptoms demonstrated occupational and social impairment with deficiencies in most areas. Therefore, a rating of 70 percent, but no higher, for major depressive disorder is warranted. The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is needed prior to appellate review of the remaining claims. 1. Entitlement to a rating in excess of 10 percent for a cervical strain is remanded. In an August 2015 private opinion, a private physician diagnosed the Veteran with not only a cervical spine strain, but also right upper extremity radiculopathy. This new diagnosis suggests the Veteran’s condition may have worsened since her last VA examination in 2012. The examiner also documented limitation of motion of the cervical spine to a greater degree than that found in the 2012 VA examination. On remand, a new VA examination should be obtained to address the Veteran’s current cervical symptomatology, specifically including any radiculopathy or other neurologic disabilities. 2. Entitlement to a compensable rating for GERD is remanded. In the August 2015 private opinion, the physician mentioned that the Veteran was experiencing multiple GERD symptoms of “persistent pyrosis, reflux, and dysphagia” that were not present at the time of the 2012 VA examination. This suggests that the Veteran’s GERD may have worsened since the 2012 VA examination, which is now nearly six years old. On remand, a new VA examination should be obtained to address the Veteran’s current symptomatology related to GERD. 3. Entitlement to TDIU is remanded. With regards to the Veteran’s claims for increased ratings for her cervical strain and GERD, and entitlement to TDIU, the Board finds that these claims are inextricably intertwined. As any allowance of the claims for increase remanded herein could affect the outcome of the TDIU claim, the appropriate remedy for inextricably intertwined issues is to remand them pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. The Veteran must be provided a VA examination by an appropriate examiner, to assess the current severity of her service-connected cervical strain, to include any associated neuropathy of the upper extremities. Any indicated studies should be performed. The examiner must review the results of any studies, to include x-rays, prior to completing the examination report. The examination report must include a discussion of the Veteran’s documented medical history and lay statements. The examiner must report the range of motion measurements for the cervical spine in active motion, passive motion, weight-bearing, and non-weight-bearing (if applicable). If the examiner is unable to conduct the required testing, or concludes the requested testing is not necessary, he or she must clearly explain why that is so. See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must further comment as to whether there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to any of the following: pain on use, including during flare-ups; weakened movement; excess fatigability; or incoordination. The examiner is asked to describe whether pain significantly limits functional ability during any flare-ups. All limitation of function must be identified. The examiner must discuss whether the Veteran has ankylosis of the cervical spine and, if so, whether it is favorable or unfavorable. The examiner must also determine whether the Veteran experiences intervertebral disc syndrome of the cervical spine. If so, the examiner must document the number of weeks, if any, during the past 12 months that the Veteran has had “incapacitating episodes,” defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner must also specifically address the finding of the August 2015 private physician who diagnosed the Veteran with not only a cervical spine strain, but also right upper extremity radiculopathy. The examiner must fully describe all symptomatology and functional effects associated with this condition. A rationale must be given for all opinions rendered. 2. The Veteran must be provided a VA examination by an appropriate examiner, to assess the current severity of her service-connected GERD. Any indicated studies should be performed. The examiner must also specifically address the finding of the August 2015 private physician who indicated the Veteran had multiple GERD symptoms including persistent pyrosis, reflux, and dysphagia. The examiner must fully describe all symptomatology and functional effects associated with this condition. A rationale must be given for all opinions rendered. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel