Citation Nr: 18160214 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 16-51 526 DATE: December 26, 2018 ORDER Entitlement to service connection for depressive disorder, NOS, to include as secondary to service-connected spondylosis of the lumbar spine and degenerative joint disease, right shoulder is granted. Entitlement to a rating evaluation greater than 20 percent for service-connected spondylosis of the lumbar spine is denied. Entitlement to a rating evaluation greater than 20 percent for service-connected degenerative joint disease, right shoulder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s depressive disorder, NOS is secondary to the Veteran’s service-connected back and right shoulder disabilities. 2. Throughout the rating period on appeal, the Veteran’s back disability manifested with limitation of flexion to 55 degrees at worst considering complaints of pain and functional impairment; there was no evidence of ankylosis, or incapacitating episodes having a total duration of at least four weeks but less than six weeks during a twelve month period. 3. The Veteran’s right shoulder disability manifested with pain, weakness, and a loss of range of motion that was, at its worst, approximately at the shoulder level for the entire time on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder, NOS are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.303. 2. The criteria for a disability evaluation greater than 20 percent for spondylosis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5243. 3. The criteria for a disability evaluation greater than 20 percent for degenerative joint disease, right shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to April 1991. Unfortunately, the Veteran died while this appeal was pending. The Appellant is his surviving spouse and she has been substituted for the purposes of adjudicating the pending claims. See October 2015 Notification Letter. The Board notes that the VA examinations may not be fully compliant with the most recent Court decisions relating to orthopedic examinations. Cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). However, the Veteran did not report any specific, additional motion loss from repetitive motion or flare-ups of pain. The record does not include any indication that additional medical opinion regarding passive motion would assist in the substantiating these particular claims. Passive movement (i.e. assisted motion) would inherently reflect greater mobility than active movement. Then, the Veteran had never identified any specific problem with passive motion, nor has the appellant so asserted such. Id.; see Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). In this case a remand to obtain a medical opinion pertaining to passive motion would not raise any reasonable possibility of substantiating the claims. 38 C.F.R. § 3.159 (d). Consequently, any deficiency relating to Correia and Sharp is harmless error and there is adequate evidence of record to adjudicate the back and shoulder disabilities without prejudice to the appellant. 1. Entitlement to service connection for depressive disorder, NOS, to include as secondary to service-connected spondylosis of the lumbar spine and degenerative joint disease, right shoulder The Veteran asserted that his depression was secondary to his service-connected back and right shoulder disabilities. Service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran had a diagnosis of depressive disorder, NOS. See Mental Disorders Disability Benefits Questionnaire (DBQ) received May 2014. In a March 2014 private medical opinion, Dr. H.H.G. reported that the Veteran’s medical condition continued to deteriorate and with that, his emotional state continued to decompensate. Dr. H.H.G. opined that based on interview and review of the Veteran’s claims file, the Veteran’s depressive disorder is more likely than not permanently aggravated by his service connected spondylosis of lumbar spine and degenerative joint disease of right shoulder. In a May 2018 VA medical opinion, the examiner opined that it is less likely than not that the Veteran had depression proximately due to his right shoulder disability and/or spondylosis of the lumbar spine. The examiner noted that although the Veteran’s social security records suggested that the Veteran’s shoulder disability and lumbar spondylosis likely led to the Veteran’s depression, the Veteran had other debilitating medical conditions that are no less likely to lead to pain and depression. Therefore, the examiner opined that there is insufficient evidence to determine the primary source of any depression. The Board finds that the lay evidence of record and the medical evidence are in relative equipoise. Under the benefit-of-the-doubt standard, when a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Therefore, the Board finds that the Veteran’s depressive disorder, NOS was secondary to the Veteran’s service-connected back and shoulder disabilities. 2. Entitlement to a rating greater than 20 percent for service-connected spondylosis of the lumbar spine The Veteran’s lumbar spine disability is rated under Diagnostic Code 5010-5243 for spondylosis of the lumbar spine, which utilizes the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Alternatively, intervertebral disc syndrome (IVDS) can be rated under Diagnostic Code 5243 and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). IVDS may be evaluated under the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula, Note (6). Under the IVDS Formula, incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months warrants a 20 percent disability rating. Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months warrants a 40 percent disability rating. Incapacitating episodes having a total duration of at least six weeks during the past twelve months warrants a 60 percent disability rating. 38 C.F.R. § 4.71a. An “incapacitating episode” is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula, Note (1). The RO received a claim for unemployability due to service-connected conditions in February 2012. As such, the RO considered it as a request for a claim for increase in the Veteran’s back condition. The RO attempted to order a VA examination, but the Veteran was unable to report for the examination in March 2013 because the Veteran was hospitalized. Unfortunately, however, the July 2013 rating decision adjudicated the claim for increase and continued it at the previously established evaluation of 20 percent. By the time the Notice of Disagreement was received in May 2014 and the appeal was processed, the Veteran passed away. The last VA examination in the claims file was dated in December 2010. The Veteran indicated that his back pain was daily but did not have an incapacitating episode in the past 12 months requiring bedrest. The Veteran reported stiffness, fatigue, and weakness of the lumbar spine. The Veteran did not have spasms, numbness, foot weakness, or bladder complaints related to his spine condition. The Veteran reported decreased motion. The Veteran had a bladder condition related to his neck condition since his surgery. The Veteran had erectile dysfunction unrelated to his back condition. The Veteran reported unsteadiness. Upon physical examination, the examiner noted that forward flexion was limited to 55 degrees. The lumber spine was painful on forward flexion. The Veteran was not additionally limited by pain, weakness, fatigue, or lack of endurance following repetitive movement. The Veteran did not have ankylosis. The examiner indicated that the Veteran had numbness and decreased sensation to both hands, and did not have numbness or decreased sensation to the feet. He had generalized weakness to the upper extremities, good strength in the lower extremities, and had generalized atrophy to both arms and the legs. The examiner noted that the Veteran did not have functional loss with use, as a result of pain, fatigue, weakness. The Veteran did not have lack of endurance or incoordination. The Veteran was able to perform three ranges of motion and the examiner opined that there was no additional functional impairment on the basis of fatigue, incoordination, pain or weakness and that the examiner would need to resort to speculation in order to describe the additional range of motion loss during a flare-up or after repeated use. In a February 2013 VA treatment note, it was noted that the Veteran’s intervertebral disc syndrome likely led to spinal stenosis of neck which led to severe myelopathy, spinal cord injury, which led to his weakness and incoordination and need for assistance with activities of daily living. The question for the Board is whether the Veteran’s lumbar spine disability manifested with forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or with incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months. The Board finds that the competent, credible, and probative evidence establishes that the Veteran’s lumbar spine disability did not manifest to a degree that more nearly approximates the criteria for a disability evaluation in excess of 20 percent. The evidence of record does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. During the most recent VA examination in December 2010, forward flexion was no worse than 55 degrees. Further, the record does not demonstrate any evidence of ankylosis. Similarly, VA and SSA treatment records do not demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The record also did not indicate incapacitating episodes having a total duration of at least four weeks but less than six weeks during a twelve month period. Therefore, the Board finds that the Veteran is not entitled to a disability evaluation in excess of 20 percent. In addition, there is also no basis for assigning a higher rating based on consideration of factors such as pain on movement, weakness, excess fatigability, and incoordination, to include as due to flare-ups and/or repetitive use. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-7. In this regard, the Board finds significant that at his December 2010 VA examination, the Veteran was able to perform three repetitions of ROM testing with no showing of additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination. For these reasons, the Board finds that an evaluation in excess of 20 percent for the service-connected spondylosis of the lumbar spine is not warranted. In reaching this decision, the Board has considered the benefit of the doubt doctrine when making these findings, but as discussed above, the preponderance of the evidence is against the Veteran’s claim for entitlement to a disability evaluation in excess of 20 percent for the service-connected lumbar spine spondylosis. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a rating greater than 20 percent for service-connected degenerative joint disease, right shoulder The Veteran’s degenerative joint disease, right shoulder disability is rated under Diagnostic Code 5201. The Veteran’s right shoulder was considered his major upper extremity as the evidence shows he was right-handed. Under DC 5201, limitation of motion to shoulder level (e.g., flexion to 90 degrees) in the major or minor extremity warrants a 20 percent rating. Limitation of motion to midway between side and shoulder level (e.g., flexion between 25 to 90 degrees) in the minor extremity warrants a 20 percent rating and a 30 percent rating in the major extremity. Limitation of motion to 25 degrees from the side in the minor extremity warrants a 30 percent rating a 40 percent rating in the major extremity. 38 C.F.R. § 4.71a, DC 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. In addition, the Board must determine whether an evaluation in excess of 20 percent is warranted under any applicable diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Therefore, the following diagnostic codes are relevant: Under DC 5200, where there is favorable ankylosis of the scapulohumeral articulation, with abduction to 60 degrees, can reach mouth and head, a 20 percent evaluation is warranted for the minor upper extremity. Under DC 5202, humerus, other impairment of, malunion of, with moderate deformity, warrants a 20 percent evaluation (major and minor shoulder); malunion of the humerus with marked deformity, is evaluated as 20 percent disabling (minor shoulder); recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, is evaluated as 20 percent disabling (major and minor shoulder); recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, are evaluated as 20 percent disabling (minor shoulder); a fibrous union of the humerus is evaluated as 40 percent disabling (minor shoulder). Under DC 5203, a 20 percent evaluation is warranted for clavicle or scapula, impairment of, dislocation of, or nonunion of, with loose movement, for both the major arm, and the minor arm. The RO received a claim for unemployability due to service-connected conditions in February 2012. As such, the RO considered it as a request for a claim for increase in the Veteran’s right shoulder condition. The RO attempted to order a VA examination, but the Veteran was unable to report for the examination in March 2013 because the Veteran was hospitalized. Unfortunately, however, the July 2013 rating decision adjudicated the claim for increase and continued it at the previously established evaluation of 20 percent. By the time the Notice of Disagreement was received in May 2014 and the appeal was processed, the Veteran passed away. The last VA examination in the claims file was dated in December 2010. The Veteran complained of pain which he rated as a four on a scale of one to ten. The Veteran reported weakness and stiffness. The Veteran reported that he does not have instability. The Veteran complained of locking and lack of endurance. The Veteran does not have effusions or episodes of dislocation or subluxation. The Veteran does not have flare-ups but has chronic shoulder pain. The Veteran expressed that he had a decreased ability to raise his arm. Upon physical examination, the examiner indicated that the Veteran had objective evidence of painful motion of both shoulders, during active range of motion but not at rest. The Veteran had facial grimacing with range of motion for both shoulders, worse on the right. The Veteran had tenderness. The Veteran did not have edema, effusions, or instability. The Veteran had guarding on movement. The examiner reported that the Veteran had pad throughout the range of motion with weakness and lack of endurance. The Veteran did not have fatigue, or incoordination. Range of motion for the right shoulder revealed a forward flexion limited to 70 degrees and abduction limited to 70 degrees. Right shoulder external and internal rotation was limited to 70 degrees. The Veteran was able to perform three ranges of motion. The Veteran was not additionally limited by pain, fatigue, weakness, or lack of endurance. The examiner noted that there was no additional functional impairment on the basis of fatigue, incoordination, pain, or weakness and that the examiner would need to resort to speculation or describe additional range of motion loss during a flare-up or after repeated use. After considering all of the evidence, the applicability of 38 C.F.R. § 4.59, and affording the Veteran the benefit of the doubt, the Board finds that a rating greater than 20 percent for the Veteran’s right shoulder disability is not warranted. The Board finds that there is no evidence of limitation of the right arm to midway between the side and shoulder or 25 degrees from the side (abduction), nor symptoms approximating such limitation. Indeed, the Veteran’s right shoulder forward flexion and abduction were limited to, at worst, 70 degrees. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to a rating in excess of 20 percent under DC 5201. Specifically, as demonstrated during the VA examination, the Veteran had pain on motion, but there is no indication that such resulted in limitation of motion to midway between the side and the shoulder or 25 degrees from the side. Additionally, the Veteran did not endorse flare-ups. While the Veteran had endorsed pain, lack of endurance, and weakness, the Board finds that such symptoms do not more nearly approximate the ability to lift his arm midway between the side and shoulder or to only 25 degrees from his side. See DeLuca, supra; Mitchell, supra. Therefore, the Veteran was not entitled to a rating in excess of 20 percent under DC 5201. In addition, the Board has also considered whether a higher rating is warranted under any other potentially applicable DCs related to the shoulders. However, the Veteran did not have ankylosis of the scapulohumeral articulation, malunion of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union of the humerus, nonunion of the humerus, flail shoulder, dislocation of the clavicle or scapula or malunion or nonunion of the clavicle or scapula that affects range of motion of the shoulder joint, as documented in the VA examination report and treatment records. Consideration of DCs 5200, 5202, and 5203 is therefore not warranted. For these reasons, the Board finds that an evaluation in excess of 20 percent for the service-connected degenerative joint disease, right shoulder disability was not warranted. In reaching this decision, the Board has considered the benefit of the doubt doctrine when making these findings, but as discussed above, the preponderance of the evidence is against the Veteran’s claim for entitlement to a disability evaluation in excess of 20 percent for the service-connected right shoulder disability. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. As the Board is granting service connection for depressive disorder, NOS herein, the RO will implement this grant, including the assignment of a disability rating and effective date. The TDIU matter is inextricably intertwined and should be readjudicated by the RO after implementation of the service connection grant. (Continued on the next page)   The matter is REMANDED for the following action: 1. After implementing the grant of service connection for depressive disorder, NOS contained in this decision, readjudicate the matter of entitlement to a total disability rating based on individual unemployability. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.D.