Citation Nr: 1815298 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 11-27 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for right shoulder strain status-post recurrent dislocation with arthroscopic repair with scar (right shoulder disability) prior August 1, 2015, and in excess of 30 percent thereafter, excluding two periods of temporary total ratings due to convalescence. 2. Entitlement to a higher level of special monthly compensation (SMC), to include consideration of SMC based on the Veteran's need for aid and attendance. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 24, 2016. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1998 to March 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which increased the rating for a right shoulder disability from 10 percent to 20 percent, effective August 26, 2009. In March 2016, during the pendency of the present appeal, the VA RO in Lincoln, Nebraska, increased the rating for a right shoulder disability from 20 to 30 percent, effective August 1, 2015. Because less than the maximum available benefit for a schedular rating was awarded and because the increase was not awarded for the entirety of the claims period, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). The Veteran was granted temporary total disability ratings for the left knee disability during the following periods: December 27, 2011 to February 28, 2012, and May 7, 2015 to July 31, 2015. As such, the Board will not consider whether an increased rating for a right shoulder disability is warranted for these periods. The Veteran testified at a November 2017 Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are accurately stated as listed on the title page of this decision. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). The Veteran is currently in receipt of a 100 percent rating for major depressive disorder and SMC at the housebound rate, both effective August 24, 2016. As such, the issue of entitlement to a TDIU is limited to the period prior to August 24, 2016. The issue of entitlement to a higher level of SMC has been raised by the record and added to the present appeal. See Akles v. Derwinski, 1 Vet. App. 118 (1991). FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. For the entire period on appeal, the Veteran's right shoulder disability has been manifested by limitation of motion of the arm to midway between side and shoulder level, but not to 25 degrees from side. 3. For the entire period on appeal, the Veteran's right shoulder disability has also been manifested by recurrent dislocation of the shoulder at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, but not fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder). 4. For the entire period on appeal, the Veteran is entitled to SMC at the (l) level based on a need for the regular aid and attendance of another due to the service-connected right shoulder disabilities. 5. From April 1, 2015, the Veteran is entitled to SMC at the (l) level based on a need for the regular aid and attendance of another due to the service-connected major depressive disorder. 6. During the November 2017 Board hearing, prior to promulgation of a decision in the appeal, the Veteran stated that he did not wish to continue to pursue the claim of entitlement to at TDIU. CONCLUSIONS OF LAW 1. Prior to August 1, 2015, the criteria for a rating of 30 percent, but no higher, for limitation of motion of the right shoulder have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201 (2017). 2. From August 1, 2015, the criteria for a rating in excess of 30 percent for limitation of motion of the right shoulder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, DC 5201 (2017). 3. For the entire period on appeal, the criteria for a rating of 30 percent, but no higher, for recurrent dislocations of the right shoulder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, DC 5202 (2017). 4. For the entire period on appeal, the criteria for entitlement to payment of SMC at the (l) level are met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352 (2017). 5. From April 1, 2015, the criteria for entitlement to payment of SMC at the (o) level are met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352 (2017). 6. From April 1, 2015, the criteria for entitlement to payment of SMC at the (r-1) level are met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017). 7. The criteria for withdrawal of a substantive appeal by the Veteran seeking a TDIU have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural Duties In this case, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings - Laws and Regulations The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has also held that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, 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). 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Initial Rating Claim for a Right Shoulder Disability - Analysis The Veteran is in receipt of a 20 percent initial rating for a right shoulder disability prior to August 1, 2015, and a 30 percent rating thereafter, excluding periods of temporary total evaluations. He contends that a higher rating was warranted. The Veteran's right shoulder disability is rated under 38 C.F.R. § 4.71a, DC 5201, applicable to limitation of motion of the arm. As a foundational matter, ratings based on function impairment of the upper extremities are predicated upon which extremity is the major extremity, with only one extremity being considered major. 38 C.F.R. § 4.69. The medical evidence in this case reflects that the Veteran is right-hand dominant. Therefore, his right upper extremity will be considered as the major extremity. In terms of the pertinent rating criteria, DCs 5200 through 5203 address disability ratings for the shoulder and arm. DC 5200 provides for the evaluation of a shoulder or arm disability if there is ankylosis of the scapulohumeral articulation. As there is no evidence that the Veteran has ankylosis of the left shoulder, DC 5200 is not for application. Under Diagnostic Code 5201, a 20 percent rating is warranted when the range of motion of the minor arm is limited to shoulder level. A 20 percent (minor) rating is also assigned when range of motion of the shoulder is limited midway between the side and shoulder level. A maximum 30 percent (minor) rating is assigned when the range of motion of the minor arm is limited to 25 degrees from the side. DC 5202 is applicable to impairment of the humerus. A 20 percent rating is warranted for the minor arm if there are infrequent recurrent episodes of dislocation of the scapulohumeral joint with guarding of movement only at the shoulder level, or malunion of the humeral head with moderate deformity; or for frequent recurrent episodes of dislocation of the scapulohumeral joint with guarding of all arm movements, or malunion of the humeral head with marked deformity. A 40 percent rating is warranted for the minor arm if there is fibrous union of the humerus. A 50 percent rating is warranted for the minor arm for nonunion of the humerus, or false flail joint. A maximum 70 percent rating is warranted for the minor arm for loss of head of humerus, or flail shoulder. DC 5203 provides for a 10 percent rating for malunion of the clavicle or scapula or nonunion of the clavicle or scapula without loose movement. A 20 percent rating is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. DC 5203 provides that the shoulder disability may alternatively be rated on impairment of function of the contiguous joint. 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 determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. 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. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Moreover, when evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, premature or excess fatigability and incoordination. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the Diagnostic Codes applicable to the affected joint). The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Turning to the relevant evidence, an August 2009 private treatment record indicated that the Veteran reported symptoms of pain, limited range of motion, and occasional locking. Active forward flexion was 150 degrees, external rotation was 30 degrees, and internal rotation was to the low lumbar level. Crepitus was present with range of motion. There was no clinical evidence of instability, though possible subclinical instability was noted. Ancillary nerve sensation was intact. In August 2009, the Veteran stated that sometimes he would get up and his shoulder was locked so that he could not even roll out of bd. He experienced dislocations from a sudden movement which he stated made him lose control of his arm and strength. He stated that he had to constantly guard his right shoulder and protect it by not using it. The Veteran was afforded a VA examination in November 2009. He reported symptoms of weakness, stiffness, swelling, giving way, grinding, lack of endurance, locking, fatigability, tenderness, subluxation, pain, and dislocation. He reported experiencing flare-ups as often as twice a day, each lasting for four hours. The flare-ups were precipitated by physical activity and stress. During the flare-ups, the Veteran reported that his functional impairment was that his wife helped him put on clothes and pulled him out of bed, as well as limitation of motion of the joint which he described as only certain movements could be performed or the joint would dislocate or lock with extreme pain. The Veteran reported having trouble using his right arm and he tried to over-compensate with the other arm. He could not mow his yard, use certain tools, or work out. He had trouble sleeping at night due to his right shoulder pain. On examination, right shoulder flexion was 180 degrees, abduction was 90 degrees, external rotation was 70 degrees, and internal rotation was 80 degrees. Painful motion was noted, but there was no additional loss of range of motion due to pain. After repetitive motion testing, flexion was 180 degrees, abduction was 80 degrees, external rotation was 65 degrees, and internal rotation was 75 degrees. Joint function was additional limited by pain, fatigue, and lack of endurance after repetitive use, and the lack of endurance had major functional impact. The VA examiner noted that the Veteran had a lot of trouble using his right arm at work, particularly since it is his dominant joint. In December 2009, the Veteran's treating physician, Dr. R.D., stated that the Veteran was only able to lift his arm mid-way between his side and shoulder level. In December 2009, the Veteran stated that he had limitation of arm motion to midway between side and shoulder level. He stated that the November 2009 VA examiner had to help him take his shirt off during the examination. He stated that his wife had to help him put on clothes. His shoulder locked "out and back uncontrollably" if it reached the midpoint of his side and shoulder level. He stated that he could not raise his right arm more than half way or it would crack and lock out, feeling like it would slip out and dislocate again and again. It would grind and pop out of place while he was in extreme pain. The Veteran stated that he felt like soon he would have no control of his right arm. A January 2010 private treatment record indicated that the Veteran's right shoulder was painful and unstable. Active forward flexion was 120 degrees, external rotation was 20 degrees, internal rotation was to the low lumbar level with pain on both sides. Right shoulder recurrent anterior disability was diagnosed. A June 2010 VA examination report indicated that the Veteran's right shoulder passive adduction and flexion was 180 degrees, compared to the significantly limited motion he demonstrated actively. Active range of motion was 70 degrees of flexion, 80 degrees of abduction, 90 degrees of internal rotation, and 80 degrees of external rotation. There was no objective evidence of pain or additional limitations after repetitive motion. There was no ankylosis. The Veteran reported that his shoulder had subluxated six times since surgery. An October 2011 private treatment record indicated that the Veteran had significant apprehension and discomfort with right shoulder forward flexion of more than 90 degrees. Anterior apprehension and relocation testing were positive. External rotation was 20 degrees. Internal rotation was to the low lumbar level. In November 2011, the Veteran stated that his extreme shoulder pain prohibited him from daily duties around the house and with his family. He could not put away clothes in the top drawers and could not mow the lawn. He could not throw a ball to his son. Any kind of movement like that caused extreme pain, cracking, grinding, popping, and shifting. He could not move his arm any farther up than midway between side and shoulder level. He reported having symptoms of instability, recurring dislocations, discomfort, and limited range of motion. A February 2012 VA physical therapy initial evaluation report indicated that the Veteran's passive right shoulder flexion was 85 degrees, with muscle guarding. Active-assistive range of motion of the right shoulder was 110 degrees. A February 2012 VA physical therapy progress note indicated that active-assistive range of motion of the right shoulder was 120 degrees of flexion. In June 2012, the Veteran requested a separate rating for traumatic arthritis of the glenohumeral joint. He stated that it was really hard to get out of bed because his shoulder would freeze up and make it hard to move. He experienced constant crepitus, stiffness, cracking, grinding, and extreme pain. An April 2015 MRI report indicated that the Veteran had right shoulder moderate supraspinatus and infraspinatus tendinopathy, moderate subscapularis tendinopathy, mild to moderate glenohumeral joint osteoarthritis with minimally displaced tear of the superior glenoid labrum, mild acromioclavicular (AC) joint osteoarthritis and moderate subacromial subdeltoid bursitis, and split tear of the biceps long head tendon with bicipital groove. In April 2015, the Veteran stated that he was getting shoulder dislocations which his wife had to move his arm in order for the shoulder to snap back into place. In a separate April 2015 letter, the Veteran stated that his shoulder would freeze at night causing severe discomfort. He could not put on his clothes at times due to the shoulder pain. When he bent down or turned his arm, his shoulder would at times dislocate. A May 2015 private treatment record indicated that the Veteran's right shoulder had dislocated twice since 2012 and had not improved. The first dislocation occurred when he was emptying the trash can and the second dislocation occurred when he was pulling a lawnmower cord. His symptoms were aggravated by daily activities and he stated that nothing relieved his symptoms. He had severe nighttime pain with locking of the shoulder. Right shoulder muscle testing was normal. The Veteran was afforded a VA examination in May 2015. He was diagnosed with a right shoulder bicipital tendon tear, AC joint osteoarthritis, ankylosis of glenohumeral articulations, glenohumeral joint instability, and degenerative arthritis. The Veteran reported having constant right shoulder pain graded seven out of 10 with daily exacerbations to 10 out of 10, lasting approximately six hours and triggered by motion and laying on the shoulder. The Veteran also reported functional impairment due to cold environments and weather changes. On examination, flexion was 60 degrees, abduction was 50 degrees, and external and internal rotation was zero degrees. Pain was noted with both flexion and abduction, but there was no pain with weight bearing. There was no additional loss of range of motion or functional loss after three repetitions. The VA examiner stated that there was less movement of the right shoulder than normal due to ankylosis and adhesions, as well as weakened movement due to muscle or peripheral nerve injury. Muscle strength was decreased, with active movement against gravity. There was no muscle atrophy. The VA examiner opined that there was ankylosis of the right shoulder in abduction between favorable and unfavorable. The Veteran had a history of recurrent dislocation of the glenohumeral joint, with frequent episodes. The Veteran was also diagnosed with right AC joint osteoarthritis. There was no loss of head (flail shoulder), nonunion (false flail shoulder) or fibrous union of the humerus. The functional impact of the right shoulder disability was that the Veteran was limited in his ability to reach overhead, and lift or carry weight. He also had difficulty driving and getting in and out of vehicles. The VA examiner opined that pain could cause a significant functional limitation when the joint was used repeatedly or during a flare-up. In a July 2015 disability benefits questionnaire (DBQ), the VA examiner stated that forward flexion was 60 degrees, abduction was 50 degrees, and internal and external rotation was both 45 degrees. The Veteran had pain with decreased range of motion. After three repetitions and during flare-ups, flexion was 55 degrees, abduction was 45 degrees, and internal and external rotation was 45 degrees, bilaterally. Pain, weakness, and lack of endurance caused the functional loss after repetitive use and during flare-ups. The Veteran also had less movement than normal due to ankylosis, limitation or blocking, adhesions, tendon-tie-ups and/or contracted scars. Muscle strength was decreased, but there was no muscle atrophy. There was no ankylosis. The Veteran reported having had a lot of trouble with range of motion of the right shoulder when lifting objects. A September 2015 VA treatment note indicated that the Veteran reported that his right shoulder "falls out of my socket." In an October 2015 message to a VA physician, the Veteran stated that the pain from his shoulder "overrides" all of his medication. His shoulder froze all the time at night. He stated that he could not even get out of bed most times in the night, but would roll over and drop to the floor. The Veteran was afforded a VA examination in July 2017. He reported having flare-ups with severe pain on a daily basis with radiation to his neck and lasting the entire day. He had trouble driving and could not reach overhead. Pushing, pulling, or lifting was limited to 20 pounds. On examination, flexion was 55 degrees, abduction was 60 degrees, external rotation was 25 degrees, and internal rotation was 30 degrees. Pain was noted on examination with all motions and caused functional loss. The Veteran experienced moderate pain on palpation of the shoulder anteriorly, commensurate with status post surgeries. After three repetitions and during flare-ups, flexion was 50 degrees, abduction was 55 degrees, external rotation was 25 degrees, and internal rotation was 25 degrees. The VA examiner stated that the Veteran had less movement than normal due to ankylosis and adhesions. The VA examiner explained that the Veteran is status-post three shoulder surgeries and scar tissue formation has certainly contributed to additional decrease in range of motion. Muscle strength was decreased, but there was no muscle atrophy. The VA examiner stated that there was no ankylosis. The Veteran had a history of recurrent dislocation of the glenohumeral joint, with frequent episodes and guarding of all arm movements. No clavicle, scapula, AC joint or sternoclavicular joint condition was suspected. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. He also did not have malunion of the humerus with moderate or marked deformity. He occasionally used a right arm sling to support his shoulder due to pain. The VA examiner opined that the Veteran's right shoulder disability was moderate to severe. He noted that besides the significant decrease in range of motion and associated functional impact, the Veteran was experiencing daily flare-ups, a decrease in muscle strength, and there appeared to be an internal derangement of the shoulder with joint instability. The VA examiner noted that the Veteran's orthopedic surgeon had recommended a total shoulder arthroplasty (replacement). During the November 2017 Board hearing, the Veteran stated that his right shoulder would freeze and come out of place. He had dislocations, difficulty sleeping, and problems taking out the trash or mowing the lawn. He stated that he had frequent dislocations of the right shoulder during which he could not move it. The dislocations were caused by any kind of excessive motion, such as pulling the string from the trash or bending down to tie his shoes. The Veteran stated that driving was very difficult. Based on a review of the evidence, both lay and medical, the Board finds that a rating of 30 percent, but no higher, is warranted for limitation of motion of the right arm under DC 5201 for the entire period on appeal. While the Veteran's range of motion readings have varied widely during the period on appeal, often within short periods, the Board finds that for the entire period on appeal the Veteran's right shoulder disability resulted in limitation of motion of the right arm to midway between his side and shoulder level. See December 2009 private physician's statement, January 2010 private treatment record, November 2011 statement from Veteran, May 2015 VA examination report, and July 2015 DBQ. To the extent that the records have indicated greater range of motion than limited to midway between the side and shoulder level, the Board notes that these records also reflect that the Veteran's range of motion is limited by pain without noting the point at which pain began. Therefore, the Board has resolved reasonable doubt in favor of the Veteran in finding that the weight of the evidence indicates that a 30 percent rating, but no higher, is warranted under DC 5201 for limitation of motion of the major extremity for the entire period on appeal. However, a higher rating under DC 5201 is not warranted, as there is no evidence that the limitation of motion of the arm was to 25 degrees from the side. In addition, the Board notes that the May 2015 VA examiner opined that the Veteran had ankylosis of the right shoulder in abduction between favorable and unfavorable. However, a higher rating under DC 5200 is not warranted because this evidence is outweighed by the extensive medical evidence indicating that the Veteran did not have ankylosis of the right shoulder. The Board further notes that the Veteran had right shoulder surgery in May 2015 and the lack of other evidence of ankylosis in the record would indicate that any ankylosis resolved due to that surgery. Therefore, any ankylosis was temporary and no rating under DC 5200 is warranted as the Veteran's right arm limitation of motion is adequately contemplated by the current rating under DC 5201. A rating under DC 5203 is not warranted as there is no evidence of impairment of the clavicle or scapula. Finally, the Board finds that DC 5201 does not contemplate all of the Veteran's right shoulder diagnoses, symptoms, and functional impairment. Specifically, the Veteran has consistently reported frequent episodes of recurrent dislocation of the arm at the scapulohumeral joint and guarding of all arm movements. See August 2009 statement, November 2009 VA examination report, December 2009 statement, June 2010 VA examination report, April 2015 statements, May 2015 private treatment record, May 2015 VA examination report, September 2015 VA treatment note, July 2017 VA examination report, and November 2017 Board hearing transcript. Dislocation of the glenohumeral joint is a separate and distinct disability from limitation of motion of the arm, with separate and distinct symptomatology. The Board notes that 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). Therefore, the Board finds that a rating of 30 percent, but no higher, is warranted under DC 5202 for recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements. This rating also contemplates the Veteran's symptoms of instability, giving way, locking, stiffness, lack of endurance, pain, cracking, grinding, crepitus, shifting, tenderness, weakness, and fatigability. However, there is no evidence of fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder). Therefore, a rating in excess of 30 percent under DC 5202 is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). In summary, the Board grants herein a 30 percent rating, but no higher, under DC 5202 for the limitation of motion of the right shoulder for the entire period on appeal, as well as a 30 percent rating, but no higher, under DC 5203 for frequent recurrent dislocations of the right shoulder. As demonstrated above, these ratings contemplate any functional loss present in the left shoulder due to fatigability, weakness, instability, stiffness, giving way, tenderness, lack of endurance, grinding, crepitus, cracking, shifting, locking, limited range of motion, and painful motion. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. SMC - Laws and Regulations SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. See 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the "s" rate). SMC at the (k) and (k) rates are paid in addition to any other SMC rates, with certain monetary limits. SMC at the (k) rate is provided for loss or loss of use of certain body parts. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). SMC at the (l) rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: Inability of claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). SMC at the (m) rate is warranted if the veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prosthesis in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c). SMC at (n) rate is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms at levels, or with complications, preventing elbow action with prostheses in place, has suffered the anatomical loss of both legs so near the hip as to prevent the use of prosthetic appliances. 38 U.S.C. § 1114(n); 38 C.F.R. § 3.350(d). SMC at the (n) rate is also warranted if the veteran's service-connected disability has caused him to suffer anatomical loss of one arm and one leg so near the shoulder and hip as to prevent the use of prosthetic appliances, or to suffer blindness without light perception in both eyes. Id. SMC at the (o) rate is warranted if the veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more of § 1114(l) through § 1114(n), no condition being considered twice in the determination, if the veteran has suffered the anatomical loss of both arms so near the shoulder as to prevent the use of prosthetic appliances, or bilateral deafness (and the hearing impairment in either one or both ears in service connected) rated at 60 percent or more disabling with service-connected total blindness with 5/200 visual acuity or less. SMC at the (o) rate is also warranted for total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and the veteran has also suffered service-connected blindness having only light perception or less. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e). Paralysis of both lower extremities together with the loss of anal and bladder sphincter control will entitle a veteran to the (o) rate of SMC, through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350(e)(2). Determinations for entitlement to the (o) rate of SMC must be based upon separate and distinct disabilities. That requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. 38 C.F.R. § 3.350(e). If the loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities be taken as entitling the veteran to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350(e). 38 U.S.C. § 1114(p) provides for "intermediate" SMC rates between the different subsections based on anatomical loss or loss of use of the extremities or blindness in connection with deafness and/or loss or loss of use of a hand or foot. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). In addition to the statutory rates payable under 38 U.S.C. § 1114(l) through (n) and the intermediate or next-higher rate provisions set forth under 38 U.S.C. § 1114(p), additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next-higher intermediate rate, or if already entitled to the next-higher intermediate rate, then to the next-higher statutory rate under 38 U.S.C. § 1114, but not above the (o) rate. The disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114(l) through (n) or the intermediate rate provisions of 38 U.S.C. § 1114(p). 38 C.F.R. § 3.350(f)(3). Also, additional single permanent disability or combinations of permanent disabilities independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next-higher intermediate rate, or if already entitled to the next-higher intermediate rate, then to the next-higher statutory rate under 38 U.S.C. § 1114, but not above the (o) rate. The disability or disabilities independently ratable at 100 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114(l) through (n) or the intermediate rate provisions of 38 U.S.C. § 1114(p). 38 C.F.R. § 3.350(f)(4). A veteran receiving SMC at the (o) rate, at the maximum rate under 38 U.S.C. § 1114(p), or at the intermediate rate between (n) and (o) plus SMC at the (k) rate, who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods that he is not hospitalized at the United States Government's expense. Determination of this need is subject to the criteria of 38 C.F.R. § 3.352. 38 C.F.R. § 3.350(h). The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C. § 1114(o) or (p), or was based on an independent factual determination. 38 C.F.R. § 3.350(h). The amount of the additional allowance payable to a veteran in need of regular aid and attendance is specified in 38 U.S.C. § 1114(r)(1) ("r-1" rate). The amount of the additional allowance payable to a veteran in need of a higher level of care is specified in 38 U.S.C. § 1114(r)(2) ("r-2"rate). The higher level aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(2) is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(1). 38 C.F.R. § 3.350(h)(3). Entitlement to a Higher Level of SMC - Analysis In this case, issue of entitlement to a higher level of SMC, including based on the Veteran's need for aid and attendance, has been raised by the record. The RO has awarded SMC at the (s) rate from August 24, 2016 based on the Veteran's receipt of a 100 percent rating for major depressive disorder and additional service-connected disabilities of obstructive sleep apnea and right shoulder limitation of motion and recurrent dislocations, independently ratable at 60 percent or more. 38 U.S.C. § 1114(s)(1). The Board considered herein whether any higher levels of SMC are warranted. As noted above, the Veteran stated during the November 2009 VA examination that during flare-ups of his right shoulder disability his wife helped him put on clothes and pulled him out of bed. In December 2009, the Veteran stated that the November 2009 VA examiner had to help him take his shirt off during the examination. He also stated that his wife had to help him put on clothes. In November 2011, the Veteran stated that his extreme shoulder pain prohibited from daily duties around the house and with his family. He could not put away clothes in the top draws and could not mow the lawn. In April 2015, the Veteran stated that his wife had to move his arm in order for the shoulder to snap back into place after dislocations. In a separate letter that same month, the Veteran stated that he could not put on his clothes at times due to his shoulder pain. In October 2015, the Veteran stated that his shoulder froze all the time at night. He could not get out of the bed most of the time, but had to roll over and drop to the floor. During a November 2015 VA mental disorders examination, the Veteran's wife stated that she controlled his medication and reported that he had significant memory problems. The Veteran stated that his wife gave him his medication and set his clothes out. He stated that his wife basically did everything to take care of him and had to remind him to brush his teeth and shampoo. He stated that he would "lose focus, track of what [he had to] do." A September 2016 VA mental disorders examination report indicated that the Veteran's wife managed most of the home tasks and schedules and cared for him. In October 2016, the Veteran stated that his wife had to take care of him "like another kid." He stated that he could not take care of himself. His wife set up his medications, cooked, cleaned, and helped him with everything. The weight of the evidence establishes that the Veteran actually requires regular personal assistance due to physical limitations related to his right shoulder disability. Specifically, the Veteran is unable to dress himself due to the limitation of motion of his right shoulder and his wife has to help him snap his shoulder back into place after dislocations. For these reasons, the Board finds that the Veteran has a factual need for the regular aid or attendance of another person; therefore, the criteria for SMC at the (l) level based on the need for regular aid and attendance of another person due to the service-connected right shoulder disability have been met for the entire period on appeal. In addition, the weight of the evidence establishes that the Veteran actually requires regular personal assistance due to limitations related to his service-connected major depressive disorder. Specifically, the Veteran's wife sets his clothes out and had to remind him to brush his teeth and shampoo. The Veteran's wife also administers his medications, cooked, cleaned, and had to help him stay focused on his current tasks. For these reasons, the Board finds Veteran's major depressive order resulted in mental incapacity and his being unable to keep himself ordinarily clean and presentable to the extent that he required care and assistance on a regular basis to protect him from dangers and hazards in his daily environment. Therefore, the criteria for SMC at the (l) level based on the need for regular aid and attendance of another person due to the service-connected major depressive disorder have been met from April 1, 2015, the effective date of the award of service connection for major depressive disorder. Where a Veteran shows entitlement to two SMCs at levels (l), (m), or (n), entitlement to SMC (o) is established. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1)(iv). The two SMCs must be independent of each other, to avoid consideration of any service-connected condition twice, in violation of the pyramiding prohibition of 38 C.F.R. § 4.14. Here, as is discussed above, the Veteran is entitled to SMC (l) based on the need for aid and attendance due to service-connected right shoulder disabilities and an independent need for aid and attendance due to the service-connected major depressive disorder. Entitlement to SMC (o) is therefore established from April 1, 2015 Entitlement to SMC (o) meets the threshold requirement for entitlement to SMC (r-1). The law states that when a Veteran is entitled to SMC (o) (or payment of an equal rate under SMC (p)), and establishes a factual need for aid and attendance, entitlement to special aid and attendance is demonstrated. 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h). The need for aid and attendance need not be independent of the underlying disabilities used to meet the threshold eligibility requirement, as the regulation provides an exception to the pyramiding rule. 38 C.F.R. § 3.350(h)(1). Accordingly, entitlement to SMC at the (r-1) level based on a need for a special level of A&A is warranted from April 1, 2015. The Board notes that SMC(r) also aid and assistance with a need for a "higher level of care." This requires a showing that the Veteran requires daily personal health care services by a medical professional, or under the supervision of such, without which institutional care would be required. 38 C.F.R. § 3.350(h)(2). The Veteran has not expressly raised the question of entitlement to this level of SMC. Further, the evidence of record does not indicate any need for such an intensive level of care. The Veteran requires assistance from his wife, but has also been able to maintain a level of independent living and has not required daily personal health care services by a medical profession or under the supervision of such. TDIU Claim Withdrawn Per Veteran's Request Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In September 2015, the Veteran submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. As potential entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all increased rating requests, the issue of entitlement to a TDIU was added to the present appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, during the November 2017 Board hearing, the Veteran indicated that he did not wish to continue to pursue his appeal as to this issue. This statement, which was reduced to writing in the hearing transcript, clearly expressed the Veteran's intent to withdraw his appeal as to the issue of entitlement to a TDIU. Therefore, there remain no allegations of error of fact or law for appellate consideration as to this claim. The Board does not have jurisdiction to review the claim of entitlement to a TDIU, and it is therefore dismissed. 38 U.S.C. § 7105(d)(5) (2017). ORDER Prior to August 1, 2015, a rating of 30 percent, but no higher, for limitation of motion of the right shoulder is granted, subject to the laws and regulations governing payment of monetary benefits. From August 1, 2015, a rating in excess of 30 percent for limitation of motion of the right shoulder is denied. For the entire period on appeal, a rating of 30 percent, but no higher, for recurrent dislocations of the right shoulder is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire period on appeal, SMC at the (l) level is granted, subject to the laws and regulations governing payment of monetary benefits. From April 1, 2015, SMC at the (o) level is granted, subject to the laws and regulations governing payment of monetary benefits. From April 1, 2015, SMC at the (r-1) level based on a need for a special level of A&A is granted, subject to the laws and regulations governing payment of monetary benefits. The appeal seeking a TDIU is dismissed. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs