Citation Nr: 1809010 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 09-34 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for right shoulder bursitis. 2. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder bursitis. 3. Entitlement to service connection for an acquired psychiatric disability, to include depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service from March 1988 to August 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In February 2016 these matters were last before the Board, at which time they were remanded for further development. Following the Board's remand, the Appeals Management Center (AMC) issued a May 2017 rating decision, granting entitlement to a 20 percent evaluation for right shoulder bursitis, effective November 16, 2006, the date of the Veteran's claim for increase. The issues of entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder bursitis and entitlement to service connection for an acquired psychiatric disability, to include depression, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT At no time during the course of the Veteran's appeal has it been shown that his right shoulder bursitis prevented him from raising his arm to midway between his side and shoulder level. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for right shoulder bursitis have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(a), 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes 5019, 5200-5203 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a January 2007 letter. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The claim for an increased evaluation of the service-connected right shoulder disparity was remanded in February 2016 to afford the Veteran a VA examination. The Veteran was provided a VA examination. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2002); 38 C.F.R. Part 4 (2017). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 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). In addition, the appeal contemplates "staged ratings" where warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran's right shoulder disability has been evaluated under Diagnostic Code 5019. See 38 C.F.R. § 4.71a. Diagnostic Code 5019 provides for evaluation of bursitis. A note to Diagnostic Codes 5013-5024 explains that the diseases covered by these codes will be rated on limitation of motion of affected parts, as arthritis, degenerative, except for gout. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X- ray findings will not be combined with ratings based on limitation of motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id. Diagnostic Code 5200 provides that ankylosis of the scapulohumeral articulation is to be rated as follows: favorable ankylosis, with abduction to 60 degrees, can reach mouth and head, 30 percent for the major shoulder and 20 percent for the minor shoulder; intermediate ankylosis, between favorable and unfavorable, 40 percent for the major shoulder and 30 percent for the minor shoulder; unfavorable ankylosis, abduction limited to 25 degrees from side, 50 percent for the major shoulder and 40 percent for the minor shoulder. A Note provides that the scapula and humerus move as one piece. 38 C.F.R. § 4.71a. Diagnostic Code 5201, relating to limitation of motion of the arm, provides a minimum rating of 20 percent disabling where motion of the major or minor arm is limited to shoulder level (and a non-compensable rating for motion of the arm greater than shoulder level). A 30 percent evaluation is provided for limitation of motion of the major arm to midway between side and shoulder level, while a 20 percent evaluation is provided for the minor arm meeting these criteria. Maximum 40 percent and 30 percent evaluations are warranted for limitation of motion of the major arm and minor arm, respectively, to 25 degrees from side. 38 C.F.R. § 4.71a. Diagnostic Code 5202 provides ratings for other impairment of the humerus. Malunion of the humerus with moderate deformity is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder; malunion of the humerus with marked deformity is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, are rated as 20 percent for the major shoulder and 20 percent for the minor shoulder; recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, are rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Fibrous union of the humerus is rated as 50 percent for the major shoulder and 40 percent for the minor shoulder. Nonunion of humerus (false flail joint) is rated as 60 percent for the major shoulder and 50 percent for the minor shoulder. Loss of head of the humerus (flail shoulder) is rated as 80 percent for the major shoulder and 70 percent for the minor shoulder. 38 C.F.R. § 4.71a. Diagnostic Code 5203 provides ratings for other impairment of the clavicle or scapula. Malunion of the clavicle or scapula is rated as 10 percent for the major shoulder and 10 percent for the minor shoulder. Nonunion of the clavicle or scapula without loose movement is rated as 10 percent for the major shoulder and 10 percent for the minor shoulder; nonunion of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder. Dislocation of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder. Diagnostic Code 5203 provides an alternative rating based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a. The Veteran received a VA joints examination in June 2007. At this time, the Veteran stated that his left shoulder, and not the right, was the service-connected shoulder. The Veteran related pain in the left shoulder with overhead lifting, but the right shoulder was asymptomatic. The Veteran was next examined in April 2012. Examination resulted in bursitis of the right shoulder, as well as the nonservice-connected left shoulder. Examination notes that the Veteran was right hand dominant. He denied any flare-ups. Right shoulder flexion was to 160 degrees, with no objective evidence of painful motion. Right abduction was to 160 degrees, without objective evidence of painful motion. Left shoulder flexion was to 135, with pain at 100 degrees. Left shoulder abduction was to 135 degrees, with pain noted at 100 degrees. Repetitive use testing of the each shoulder resulted in no additional functional loss or loss of range of motion. There was no ankylosis, and muscle strength was 5/5 bilaterally. In June 2014, the Veteran was again examined. At this time, the Veteran related that his left shoulder was that which was involved, and apparently stated that he was left hand dominant. He described flare-ups with overhead activity. Right shoulder flexion was to 180 degrees, with no objective evidence of pain. Right shoulder abduction was to 180 degrees without pain. Left shoulder flexion was to 160 degrees, with objective evidence of pain at 5 degrees. Left shoulder abduction was to 150 degrees, with pain noted at 5 degrees. Following repetitive use, there was no change in range of motion. The Veteran had guarding of the left, but not right shoulder. Muscle strength was 5/5 on the right and 4/5 on the left. There was no ankylosis. There was no history of dislocation or subluxation of the glenohumeral joint. DJD and bursitis of the left shoulder were assessed. The examiner made no apparent diagnosis of the right shoulder. In accordance with the Board's remand directives the Veteran was afforded a VA examination in May 2017. Examination resulted in assessment of impingement syndrome of the right shoulder. At the time of the examination the Veteran reported occasional bilateral shoulder pain, worse with overhead activities or lifting heavy objects. He treated with naproxen with good results. He reported that he was right hand dominant, and denied flare-ups of the right shoulder or arm. He denied any functional loss of functional impairment of the joint. Flexion was to 165 degrees; abduction was to 150 degrees; external rotation was full to 90 degrees. Internal rotation was full to 90 degrees as well. Pain did not contribute to functional loss, and there was no evidence of pain on weightbearing. Flexion of the left shoulder was to 170 degrees; abduction was to 170 degrees. Left external and internal rotation were full to 90 degrees, each. Range of motion testing was done actively and passively, and did not contribute to any functional loss. Pain did not result any additional functional loss. There was no evidence of pain with weightbearing. Each shoulder was tender, but showed no crepitus. Repetitive use testing resulted in no additional functional loss or loss of range of motion. The examiner noted that pain, weakness, fatigability or incoordination could significantly limit functional ability with repeated use over time, but could not say without resort to speculation that this would occur because there was no evidence of fatigability, incoordination, muscle weakness or pain on physical examination. Muscle strength was 5/5 bilaterally. There was no muscle atrophy. Rotator cuff testing indicated impingement on the right. Based on review of the evidence of record, the Board finds the Veteran is not entitled to a rating in excess of 20 percent at any point during the period on appeal based on impaired range of motion. Under Diagnostic Code 5201 a higher rating of 30 percent is not warranted unless the Veteran can only lift his arm to midway between side and shoulder level, or approximately flexion of 45 degrees. The Board finds the Veteran did not exhibit this limitation of motion at any point during the period on appeal. As the Veteran demonstrated an ability to raise his arm higher than midway between his side and shoulder level, the Board finds a 30 percent rating under this code is not warranted at any point during the period on appeal. The Board also finds that the Veteran is not entitled to a higher rating under other diagnostic codes related to shoulder impairment during the period on appeal. Diagnostic Code 5200 relates to ankylosis of the shoulder. The Veteran had no ankylosis of the shoulder throughout the period on appeal; therefore, the Board finds the Veteran is not entitled to a rating under this diagnostic code. Diagnostic Code 5202 relates to impairment of the humerus, including malunion, recurrent dislocation, nonunion, or flail shoulder. However, the medical evidence has been reviewed and does not establish the Veteran experienced any of these conditions at any point during the period on appeal. As such, the Board finds a rating in excess of 20 percent is not warranted under this code for either shoulder. Finally, Diagnostic Code 5203 relates to impairment of the clavicle or scapula, including malunion, nonunion, and dislocation. However, such impairment is not noted in the evidence of record. As such, a rating under this code is also not warranted. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (a shoulder disability). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, in this case the Board finds an additional rating under DeLuca is not warranted. VA examinations have indicated that the Veteran experiences any additional limitation with repetitive motion secondary to pain. The Veteran reported that his shoulder causes him pain on movement, particularly with overhead movement, but did not assert that repetitive use lead to loss of function. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). Therefore, the Board finds the Veteran's pain alone does not entitle him to a higher disability evaluation than that warranted under the schedular criteria. In any event, without taking into consideration the Veteran's concerns, this evaluation could not be justified based on the objective record. Consideration has also been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than the assigned rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition to the medical evidence above, the Board has considered the lay evidence in the form of the Veteran's statements. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran and the lay statement full competence and credibility, nothing in the statements shows impairment more closely approximating the criteria for a higher evaluation. In closing, the Board notes the Veteran's assertions that his left, but not right, shoulder should have been subject to service connection all along. However, service connection was initially granted for right shoulder bursitis based upon the Veteran's September 2001 initial claim for service connection of "[right] shoulder bursitis." To the extent required by Correia, the Board has noted the impairment of the left shoulder in its analysis. However, the left shoulder disability is not subject to service connection as of yet, and is addressed below in the remand portion of this document. ORDER Entitlement to an evaluation in excess of 20 percent for right shoulder bursitis is denied. REMAND Following the Board's remand, the Veteran was afforded VA psychiatric and joint examinations in May 2017. June 2017 addenda were also entered with respect to the examinations. In each case, the examiners returned unfavorable opinions. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. VA examination of the shoulder in May 2017 resulted in negative opinions, with the examiner concluding that it was less likely than not that any left shoulder disability was incurred in service, and that it was less likely that any left shoulder disability was caused by the service-connected right shoulder disability. In terms of secondary service connection, the examiner explained that the right and left shoulder were "not related pathophysiologically or anatomically to each other." He also stated that right shoulder bursitis did not "cause or aggravate" any left shoulder condition. The VA shoulder opinion is inadequate. The examiner was asked to address whether any left shoulder disability was caused or aggravated by the service-connected right shoulder disability, including by means of overuse of the left shoulder. The examiner did not address the question of overuse. Accordingly, the report is returned. 38 C.F.R. § 4.2. VA psychiatric examination resulted in assessment of unspecified depressive disorder. The VA psychiatric examiner was asked to address the likelihood that the Veteran had any current acquired psychiatric disorder that was superimposed upon the personality disorder assessed in service. In her June 2017 addendum opinion, the examiner concluded that she could not offer an opinion without resort to speculation because the Veteran was diagnosed as having current personality disorder. The VA psychiatric examiner's opinion is inadequate. The question is not whether the Veteran has had a personality disorder following his discharge, but rather whether the Veteran's personality disorder noted in service was subject to a superimposed psychiatric disability. Accordingly, the examination report is returned for clarification. 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following action: 1. Refer the claims folder to the examiner who provided the May and June 2017 shoulder opinions (if available) to obtain an addendum opinion as to the etiology of the claimed left shoulder disability. If unavailable, schedule the Veteran for a new VA. The claims folder and a copy of this Remand should be made available to the medical professional. The examiner must review the record, giving particular attention to the service treatment records, lay assertions, and the pertinent medical evidence. A notation to the effect that this record review took place shall be included in the report of the examiner. Based upon a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed disability of the left shoulder was caused or aggravated by the service-connected right shoulder, particularly by means of overuse. With respect to the term "overuse" the Board means that the Veteran's service-connected right shoulder disability caused the excessive or too frequent use of the left shoulder, which resulted in additional disability of the left shoulder, directly or by means of aggravation (increase in severity). If the examiner finds aggravation, the examiner should indicate to the extent possible the approximate degree of disability or baseline before the onset of the aggravation. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. Refer the claims folder to the examiner who provided the May and June 2017 psychiatric opinions (if available) to obtain an addendum opinion as to the etiology of the claimed acquired psychiatric disability, to include depression. If unavailable, schedule the Veteran for a new VA examination. The claims folder and a copy of this Remand should be made available to the medical professional. The examiner must review the record, giving particular attention to the service treatment records, lay assertions, and the pertinent medical evidence. A notation to the effect that this record review took place shall be included in the report of the examiner. Based upon a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current acquired psychiatric disability was superimposed upon the personality disorder during active service. The examiner's attention is directed to the July 1992 in-service assessment of a personality disorder with antisocial features. The examiner must render an opinion regardless of whether or not the Veteran has been assessed as having a personality disorder at any time since service. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Then readjudicate the claims. If any action remains adverse to the Veteran, issue a Supplemental Statement of the Case to the Veteran and his representative, and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs