Citation Nr: 18156822 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-56 251 DATE: December 11, 2018 ORDER A rating in excess of 40 percent for a left shoulder disability is denied. A rating in excess of 10 percent for left shoulder scars is denied. Service connection for left arm carpal tunnel syndrome on a secondary basis is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic-stress disorder (PTSD) and depression, is remanded. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran’s left shoulder disability has been characterized by pain with some limitation of motion; ankylosis or impairment of the humerus, clavicle, and/or scapula have not been shown or more nearly approximated. 2. The Veteran’s two left shoulder scars were painful, small, and linear; scar(s) that was/were deep and nonlinear with a total area of at least 12 sq. in. (77 sq. cm) but less than 72 sq. in. (465 sq. cm), and/or unstable have not been shown or more nearly approximated. 3. The evidence is at least evenly balanced as to whether the Veteran’s left arm carpal tunnel syndrome is caused by service connected disease. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5201. 2. The criteria for a rating in excess of 10 percent rating for left shoulder scars have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.118, DC 7804. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for left arm carpal tunnel syndrome have been met on a secondary, causation, basis. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November1988 to November 1992. The Veteran is claiming service connection for an acquired psychiatric disorder. During the course of this appeal, his psychiatric symptoms have been characterized as PTSD and depression. However, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, as reflected herein, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board acknowledges that additional records have been associated with the claims file since the most recent statement of the case. However, a review of these records reveals that the relevant records were previously on file and/or are redundant of records already on file. Further, to the extent there are relevant VA nerve examinations that were not considered by the RO, the Board is granting the full benefits sought on appeal with respect to his left arm carpal tunnel claim. As a result, there is no prejudice to the Veteran and a remand for the RO’s initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). Increased Rating The Veteran is seeking increased ratings for his service-connected left shoulder disability and left shoulder scar. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by 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. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 40 percent for a left shoulder disability The Veteran is seeking an increased rating for his left (dominant) shoulder disability, which is currently rated at 40 percent under 38 C.F.R. § 4.71a, DCs 5024-5201. DC 5024 applies to tenosynovitis, which is rated based on limitation of motion of the affected part. DC 5201 applies to limitation of motion of the shoulder. The current 40 percent rating is the maximum schedular rating under DC 5201. Regardless of the precise basis of the RO’s rating, however, the Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Other potentially applicable diagnostic codes relating to the shoulder and arm are DC 5200, which provides for a 50 percent rating for unfavorable ankylosis of the scapulohumeral articulation and DC 5202, which provides for ratings of 50, 60, and 80 percent for different types of impairment of the humerus. For the following reasons, a rating in excess of 40 percent is not warranted. There is no evidence of left shoulder ankylosis. Specifically, the August 2013, June 2014, and September 2016 VA examiners did not find any evidence of ankylosis or impairment of the humerus, and there is no evidence of either ankylosis or impairment of the humerus. Further, there is no evidence of ankylosis in the medical treatment records. In arriving at this conclusion, the Board acknowledges the assertions from the Veteran and his wife (who is a nurse) that the Veteran is unable to lift his left arm following repetitive use and flare-ups of pain. In cases involving orthopedic disabilities, VA Must generally consider the impact of functional loss in the Veteran’s left shoulder due to fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). However, if a veteran is receiving the maximum disability rating allowable for a particular disorder, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, in Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). That is the situation in this case. The Veteran is receiving the maximum rating under DC 5201 and higher ratings require ankylosis or other impairment unrelated to range of motion. 38 C.F.R. §§ 4.40 and 4.45 and the cases interpreting them, such as Sharp v. Shinseki, 29 Vet. App. 26 (2017), are therefore not for application. Additionally, the Board notes that while the Veteran asserts that his shoulder VA examination was inadequate, the examiner reviewed the Veteran’s past medical history, recorded his current complaints and history, conducted appropriate evaluations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Moreover, any error with regard to lack of consideration of flare-ups is harmless in light of Spencer and Johnston, supra. Finally, the argument that entitlement to separate disability ratings for flexion and abduction limitations is warranted as a general matter was explicitly rejected in Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (rejecting argument that one disability manifesting in multiple symptoms could receive two separate ratings within a particular diagnostic code “unless the regulation expressly provides otherwise”). In fact, the Court stated that the holding in Cullen specifically prohibits separate disability ratings for abduction and flexion limitations for a shoulder disability. Burton v. Shinseki, 25 Vet. App. 1, 6 (2011). For the foregoing reasons, the preponderance of the evidence is against a rating higher than 40 percent for the Veteran’s left shoulder disability. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 10 percent for left shoulder scars The Veteran’s service-connected left shoulder surgical scars have been assigned a 10 percent rating under 38 C.F.R. § 4.118, DC 7804. In order to warrant a rating in excess of 10 percent for a scar, the evidence must show scars that are: • Deep and nonlinear and total area or areas of at least 12 sq. in. (77 sq. cm) but less than 72 sq. in. (465 sq. cm) (20 percent under DC 7801); • Three or four in number that are unstable or painful (20 percent under DC 7804); or, • One or two scars that are both unstable and painful (20 percent under DC 7804, Note (2)). 38 C.F.R. § 4.118. For the following reasons, a rating in excess of 10 percent is not warranted. Specifically, in August 2013 and June 2014 VA examinations, the Veteran presented with left shoulder surgical scars. On examination, the examiner determined that the Veteran did not have painful and/or unstable scars, and that the total area was less than 39 square cm. Similarly, in a September 2016 VA examination, the Veteran’s scars were not reported as painful. The examiner noted that the Veteran had two scars that measured 3cm X 1cm, and 2cm X 1cm. There was no evidence of pain or instability. Further, the Veteran’s medical treatment records do not reflect evidence of larger scar sizes, instability, or more than one painful scar, that would warrant a higher rating. Specifically, in May 2013 and May 2014, the Veteran’s treating physician noted that the Veteran’s scars were “well healed,” and no evidence of instability or breakdown. As such, a rating of 10 percent, but no more, for surgical scars is not for application. The Board has also considered whether a higher rating is warranted under DC 7805 for “other” scars, which are to be rated based on limitation of function of the part affected. However, the August 2013, June 2014, and September 2016 VA examiners did not report any evidence of nerve or muscle damage associated with the scars. Further, there is no evidence of other disabling effects that would warrant a higher and/or additional rating. Therefore, a rating under DC 7805, or any other relevant Diagnostic Code is not for application In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran that his service-connected left shoulder disability and scar are worse than the rating he currently receives, including that his disabilities cause impairment with his activities of daily living. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competent evidence concerning the nature and extent of the Veteran’s service-connected left shoulder and scar 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) directly address the criteria under which these disabilities are evaluated. The Veteran’s lay statements do not reflect any symptoms that would warrant a higher rating. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors. If such related factors are exhibited, then referral must be made to the Director of the Compensation Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including pain, limitation of motion, weakness, and scar sizes, that causes limitations to his activities of daily living, and concludes that there are no symptoms that were not addressed by the criteria in the applicable diagnostic codes. As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) (2001) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran is gainfully employed and thus, TDIU is not raised by the record. Service Connection 3. Entitlement to service connection for carpal tunnel syndrome of the left arm The Veteran asserts that his left arm carpal tunnel syndrome is caused by one or more of his service connected disorder. Service connection is warranted for disability proximately due to or the result of service connected disease or injury. 38 C.F.R. § 3.310(a). The Veteran is in receipt of service connection for cervical spine degenerative arthritis with intervertebral disc disease, left upper extremity radiculopathy, upper radicular nerve group associated with the cervical spine disorder, and left shoulder strain impingement syndrome. He has been diagnosed with left carpal tunnel syndrome. The evidence, including the Veteran’s December 2017 and July 2018 VA examinations and May 2014 treatment records, reflects that the symptoms of his carpal tunnel syndrome overlap with his radiculopathy. These medical records implicitly reflect a causal relationship between the service connected cervical spine disability and left upper extremity radiculopathy and the carpal tunnel syndrome. As such, the Board finds that the evidence is at least evenly balanced as to whether the left carpal tunnel syndrome is proximately due to service connected disease. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left carpal tunnel syndrome is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is remanded. The Board notes that the Veteran was afforded a VA examination in November 2015 to determine if his psychiatric disorder was related to his service-connected shoulder disorder. The Board notes that while the examiner indicated that the Veteran’s symptoms were not related to service, it does not appear that the examiner considered whether or not the death of the Veteran’s child during service caused and/or aggravated his psychiatric disorder. Further, while the medical evidence, including the July 2012 VA treatment records, reflects that the Veteran’s psychiatric disorder may have been aggravated by his service-connected disabilities, the VA examiner did not render any opinions with respect to aggravation. As such, these opinions are inadequate and a new addendum opinion is necessary to determine if the Veteran’s psychiatric disorder is related to service, to include as secondary to or aggravated by a service-connected disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Obtain any and all treatment records from the VA Medical Center in St. Louis, Missouri, since August 2018, and any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them 2. The AOJ should return the claims file to the VA examiner who provided the November 2015 VA examination (or a comparably qualified individual if that examiner is no longer available) to obtain an addendum opinion. The claims file must be reviewed, including the new records, and such review should be noted in the addendum opinion. The examiner should identify all current psychiatric disorders (including PTSD and depression) found on examination. If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based. For each diagnosed psychiatric disorder other than PTSD, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder is related to the Veteran’s military service. The examiner should also opine as to whether such disorder is either (a) caused or (b) aggravated by a service-connected disorder. If aggravation is found, the baseline level of the nonservice-connected disability prior to aggravation should be indicated to the extent possible. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel