Citation Nr: 18157513 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 15-40 204 DATE: December 13, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for post-operative right shoulder capsulorrhaphy with arthrosis and arthritis is denied. Entitlement to a separate evaluation for right shoulder dislocation is granted. REMANDED Entitlement to a rating in excess of 10 percent for chronic hepatitis is remanded. FINDINGS OF FACT 1. Post-operative right shoulder capsulorrhaphy with arthrosis and arthritis has been manifest by the ability to raise the arm to at least the level of the shoulder. 2. The right shoulder disability is manifest by infrequent dislocation and guarding of movement. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for post-operative right shoulder capsulorrhaphy with arthrosis and arthritis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. The criteria for a separate 20 percent evaluation for right shoulder dislocation are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to July 1997. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Right shoulder dislocation At times, separate evaluations may be assigned for what is tantamount to instability and limitation of motion. Here, there is evidence of infrequent episodes and guarding. A separate 20 percent evaluation is warranted. 2. Post-operative right shoulder capsulorrhaphy with arthrosis and arthritis Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56. Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same manifestation of a disability, under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Although it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, the Veteran had reconstructive surgery on his right shoulder in May 1997 to debride and repair the tendons after multiple dislocations while in service. His post-operative right shoulder capsulorrhaphy with arthrosis and arthritis is rated under Diagnostic Code (DC) 5201. 38 C.F.R. § 4.71a. It was rated 20 percent. The Veteran contends that his post-operative right shoulder capsulorrhaphy with arthrosis and arthritis is more severe than his current evaluation. The Veteran asserts, through a May 2016 Statement of Accredited Representative in Appealed Case, that he should be rated separately for symptoms of arthritis under DC 5010, impairment of the humerus under DC 5202, and clavicle dislocation, as well as limitation of arm movement. In the instant matter, the Board is not considering additional or secondary service connection awards, only whether to increase the Veteran’s current rating. In the Veteran’s own statements, included in the October 2018 brief, assert that his symptoms are severe enough to only grant a 20 percent disability rating in any one of the possible diagnostic codes. In the Form 9 submitted November 2015, the Veteran stated, through his accredited representative, that the “evaluation is correct in regards to diagnostic code 5201 and is not contested.” An August 2014 VA examination found that the Veteran had a range of motion of 120 degrees forward flexion (with pain at 90 degrees) and 115 degrees abduction (with pain at 80 degrees). These ranges of motion are consistent with the AOJ decision to rate the Veteran as having range of motion of his arm limited to shoulder level under DC 5201. Here, there is no lay or medical evidence that remaining functional use is below shoulder level. The current evaluation acknowledges that the Veteran experiences some painful motion of the joint, but does not prevent him from raising his arm to the level of his shoulder, exceeding 90 degrees in both flexion and abduction. Because the range of motion in his shoulder is greater than the limitations set out in DC 5201. The Board cannot grant any additional ratings under the other diagnostic codes proposed by the Veteran. The Veteran asserts that he should also be given a rating under DC 5010 – Arthritis, due to trauma. This symptom is to be rated as DC 5003 – Arthritis, degenerative. While the Veteran does have from arthritis, Note (1) under DC 5003 states that ratings under that code “will not be combined with ratings based on limitation of motion.” 38 C.F.R. § 4.71a. While the code states that it may be rated on impairment of function of a contiguous joint, this has already been contemplated when rating under DC 5201. To also do so under DC 5203 would constitute improper pyramiding.   REASONS FOR REMAND 1. Evaluation of chronic hepatitis is remanded. For Diagnostic Code 7345, which pertains to chronic liver disease, including hepatitis, a 20 percent disability rating requires daily fatigue, malaise, and anorexia (without weight loss of hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and upper right quadrant pain) having a total duration of at least 2 weeks, but not less than 4 weeks, during the past 12-month period. 38 C.F.R. § 4.114. A 40 percent disability rating requires daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and upper right quadrant pain) having a total duration of at least 4 weeks, but not less than 6 weeks during the past 12-month period, but not occurring constantly. Id. A 60 percent disability rating requires daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. Id. A 100 percent disability rating requires near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. In a September 2014 examination, the Veteran was found to have chronic hepatitis, and is reported to have had incapacitating episodes of a total duration of at least 2 but not more than 4 weeks over the course of the past 12 months. The Veteran, in his November 2015 Form 9, has asserted that he is suffering from hepatomegaly and that he has had other extended incapacitating episodes. In essence, he asserts a change in the level of disability. The matter is REMANDED for the following action: 1. Request any outstanding VA and private treatment records pertaining to the claims remanded herein. All attempts to secure this evidence must be documented. 2. Schedule an examination by an appropriate clinician to determine the severity of hepatitis. The claims file, including the Veteran’s lay statements, must be made available to the examiner. (a.) The examiner should clearly state whether the Veteran is suffering from daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly. (b.) The examiner should clearly state whether the Veteran has had incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and upper right quadrant pain), and the total duration of such episodes.   3. Readjudicate the claim based on the results of this examination. If upon completion of the above action the claim remains denied, the case should be returned to the Board. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.W. Strike, Associate Counsel