Citation Nr: 1823930	
Decision Date: 04/20/18    Archive Date: 04/26/18

DOCKET NO.  14-25 378	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 8, 2013.

2.  Entitlement to an initial rating in excess of 20 percent for right shoulder tendon disorder (hereinafter "right shoulder disability").

3.  Entitlement to an initial compensable rating prior to March 17, 2017 and in excess of 10 percent thereafter for traumatic cataract in the left eye (previously claimed as eye floaters).

4.  Entitlement to an initial compensable rating prior to March 3, 2017 and in excess of 10 percent thereafter for right ankle surgical scars.

5.  Entitlement to an initial compensable rating prior to March 3, 2017 and in excess of 10 percent thereafter for bilateral foot calluses.



ATTORNEY FOR THE BOARD

T. Carter, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from March 2007 to December 2010.

This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2012 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In March 2016, the Board remanded the case for additional evidentiary development.

In the May 2017 Supplemental Statement of the Case (SSOC), the Agency of Original Jurisdiction (AOJ) assigned the service-connected PTSD a 100 percent disability rating effective from July 8, 2013.  Since the 50 percent disability rating is not the maximum rating available prior to July 8, 2013, the issue has been returned to the Board and listed on the title page accordingly.  See AB v. Brown, 6 Vet. App. 35 (1993).  The AOJ assigned the service-connected traumatic cataract in the left eye a 10 percent disability rating effective from March 17, 2017.  Since the noncompensable (0 percent) and 10 percent disability ratings are not the maximum ratings available prior to March 17, 2017 or thereafter, the issue has been returned to the Board and listed on the title page accordingly.  Id.  The AOJ also assigned the service-connected bilateral foot calluses and right ankle surgical scars 10 percent disability ratings effective from March 3, 2017.  Since the noncompensable (0 percent) and 10 percent disability ratings are not the maximum ratings available prior to March 3, 2017 or thereafter, these issues have been returned to the Board and listed on the title page accordingly.  Id.  The AOJ increased the Veteran's initial rating for his right shoulder disability from noncompensable to 20 percent.  

A private attorney revoked his representation and withdrew as the Veteran's representative for the issues on appeal in September 2017 after the re-certification of this appeal in August 2017.  The record reflects that written notice was only provided to the Board.  In January 2018, a notice letter was sent to the attorney along with a copy sent to the Veteran.  As of this date, the Veteran has not indicated that he desires another representative.  Thus, the Board will proceed under the assumption that he wishes to represent himself.  See 38 C.F.R. § 20.608(a) (2017).

There was substantial compliance with the March 2016 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).   The AOJ obtained VA treatment records dated from June 2012 to April 2017 and VA Disability Benefits Questionnaire (DBQ) examinations for PTSD, shoulder and arm conditions, eye conditions, and scars/disfigurement in March 2017 that are adequate to allow the Board to render informed determinations.  The AOJ also readjudicated the case in a May 2017 SSOC.

The issue of entitlement to an initial compensable rating prior to March 3, 2017 and in excess of 10 percent thereafter for bilateral foot calluses is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Prior to July 8, 2013, the Veteran's service-connected PTSD was not manifested by occupational and social impairment with deficiencies in most areas or total occupational and social impairment.

2.  For the entire initial rating period, the Veteran's service-connected right shoulder disability has not been manifested by at least motion limited to midway between side and shoulder level (flexion or abduction reduced to 45 degrees or less), ankylosis, or impairment of the humerus.

3.  Prior to March 17, 2017, the Veteran's service-connected traumatic cataract in the left eye was not manifested by corrected distance visual acuity worse than 20/20, visual field defects, concentric contraction of visual field, unilateral scotoma, diplopia, or symblepharon.

4.  Since March 17, 2017, the Veteran's service-connected traumatic cataract in the left eye has not been manifested by corrected distance visual acuity of 20/70 in one eye and worse than 20/40 in the other eye, visual field defects, concentric contraction of visual field, diplopia, or symblepharon.

5.  Prior to March 3, 2017, the Veteran's service-connected right ankle surgical scars were not manifested by underlying soft tissue damage (deep) or nonlinear, measurements of an area of 144 square inches (929 square centimeter) or greater, instability, or pain.

6.  Since March 3, 2017, the Veteran's service-connected right ankle surgical scars have not been manifested by underlying soft tissue damage (deep) or nonlinear nor are there three or more scars.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to an initial rating in excess of 50 percent for PTSD prior to July 8, 2013 have not been met.  38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017).

2.  The criteria for entitlement to an initial rating in excess of 20 percent for right shoulder disability have not been met.  38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5201, 5202 (2017).

3.  The criteria for entitlement to an initial compensable rating prior to March 17, 2017 and in excess of 10 percent thereafter for traumatic cataract in the left eye have not been met.  38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6027-6066 (2017).

4.  The criteria for entitlement to an initial compensable rating prior to March 3, 2017 and in excess of 10 percent thereafter for right ankle surgical scars have not been met.  38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7805-7804 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As service connection, an initial rating, and an effective date have been assigned for the issues of entitlement to higher initial ratings for PTSD, right shoulder disability, traumatic cataract in the left eye, and right ankle surgical scars, the notice requirements of 38 U.S.C. § 5103(a) have been met.

With regard to the duty to assist, the Veteran's service treatment records, and identified VA medical treatment records have been obtained.  The Veteran underwent VA examinations in December 2010, June 2012, August 2012, March 2017, and April 2017.  The VA examinations are adequate because they were based upon consideration of the Veteran's pertinent medical history and current complaints, and because they describe his disabilities in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

In sum, there is no evidence of any VA error in notifying or assisting him that reasonable affects the fairness of this adjudication.  38 C.F.R. § 3.159(c). 

Higher Initial Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, 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.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Veteran's disability should be viewed in relation to its history.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Given the nature of the present claims for higher initial evaluations, the Board has considered all evidence of severity since the effective date for the awards of service connection on December 31, 2010.  Fenderson v. West, 12 Vet. App. 119 (1999).

PTSD prior to July 8, 2013

The Veteran filed his initial claim requesting service connection for PTSD in November 2010.  In the June 2012 VA rating decision, service connection for PTSD was granted.  The Veteran was assigned an initial 30 percent disability rating for the entire appeal period effective from December 31, 2010 (date following separation from service).  See 38 C.F.R. § 4.130, Diagnostic Code 9411.  During the course of the appeal, in a March 2014 VA rating decision, the AOJ assigned an initial 50 percent disability rating effective from December 31, 2010 and in the May 2017 SSOC the AOJ assigned a 100 percent disability rating effective from July 8, 2013.  Id.  As such, the Board considers whether an initial rating in excess of 50 percent for PTSD is warranted at any time prior to July 8, 2013.

Pursuant to the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.

The next-higher rating of 70 percent is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or an inability to establish and maintain effective relationships.  Id.  

A rating of 100 percent is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name.  Id.

Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).  The nomenclature employed in the portion of VA's rating schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV).  See 38 C.F.R. § 4.130.  The Board notes VA implemented usage of the DSM-5, effective August 4, 2014.  As this case was initially certified to the Board in January 2015, the DSM-5 is for application in this case.

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a).  In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment.  38 C.F.R. § 4.126(b).

Review of the evidentiary record from December 31, 2010 to July 7, 2013 documents the following symptomatology for the Veteran's psychiatric disability.  Particularly such evidence consists of VA treatment records dated from June 2012 to May 2013.

The Veteran underwent a VA examination in December 2010.  The purpose of the examination was to establish whether service connection for PTSD was warranted and as a result it focused mainly on his in-service stressors.  However, he reported that he felt withdrawn, angry, combative, and less trusting of people.  He reported that his symptoms impacted his relationship with his wife.  He stated that he had nightmares every night and problems falling asleep.  He avoided crowds and movies.  He often felt angry but he stated that he "holds back" his anger "fairly often."  He did not like people to be behind him and checked his doors and windows often to make sure they were locked.  His insight was fair and his impulse control was "good."  He did not have exaggerated startle reflex.  He denied panic attacks during the day but stated that he woke up in a panic after nightmares.  He denied experiencing hallucinations.  He denied having suicidal or homicidal thoughts.  

In June 2012, the Veteran reported not working and current symptoms of depression, anxiety, irritability/anger problems, poor attention/disorganized, avoidance of others, extreme nightmares, combat flashbacks, and "afraid of everything."  He noted reported poor sleep with frequent awakenings about once every hour, difficulty going back to sleep, and sleepwalking.  The Veteran also reported suicidal ideation one month prior, and denied current suicidal ideations.  Upon clinical evaluation, he demonstrated orientation in all spheres and fair judgment and insight.

In July 2012, the Veteran reported poor sleep with nightmares and daytime sleepiness.  He further noted living with his wife and son, worked in the past as a part-time mechanic, and symptoms of irritability and depression.  Upon clinical evaluation, he demonstrated a normal general appearance, normal speech, tired mood, appropriate affect, no looseness of associations or flight of ideas, no suicidal ideation or plan, and fair insight and judgment.  The Veteran also denied visual and auditory hallucinations.

In August 2012, clinical evaluation revealed the Veteran's mood was "pretty happy" and he demonstrated mild anxiety, fair insight/judgment, and ability to do math.  The Veteran denied suicidal or homicidal ideation, plan, or intent, hallucinations, and paranoia.  The treating physician concluded the Veteran is at low imminent risk of danger.

At a follow-up session for chronic problems in October 2012, the Veteran reported not working and psychiatric review revealed his mood and affect was appropriate.  Approximately one week later at a subsequent psychiatric treatment session, the Veteran reported ongoing sleep problems with excessive daytime sleepiness and not taking his medication in the prior few weeks which made his explosive feelings worse.  His past psychiatric history included overuse of alcohol in the summer of 2011, fleeting suicidal ideation in May 2012 with denial of any plan, and impulsive reaction to sounds can involve aggression.  Upon clinical evaluation, he demonstrated casual and clean appearance, no pressure or over talking speech, mild anxiety, normal thought process, good insight/judgment, and there were no findings of suicidal or homicidal ideation.  The Veteran also denied all hallucinations. 

Subsequent October 2012 records show the Veteran attended group psychiatric therapy sessions.  In particular, at one session, the Veteran was documented as casually groomed, restricted affect and anxious but appropriate to content, and did not verbally participate yet appeared to attentive to the material presented.

At a May 2013 initial session with a social worker, the Veteran reported medications help diminish some symptoms of anxiety, sleep onset is slightly improved, sustains difficulty with restlessness, hypervigilance, emotional regulation, recurring nightmares, engages in avoidance behaviors, and self-employed at a home business.  Upon clinical evaluation, he demonstrated a casual and appropriate general appearance, cooperation, guarded, restlessness, fluid and coherent speech, good eye contact, anxious mood, congruent affect with mood, organized and linear thought processes, orientation in all spheres, age-appropriate judgment, and fair insight.  There were no findings of present hallucinations, delusions, or suicidal ideation, and the social worker concluded the Veteran was not in acute danger to self or others.

After review of the pertinent evidence of record, including his credible testimony, the Board finds the Veteran's psychiatric symptomatology did not rise to the level of severity, frequency, or duration to demonstrate occupational and social impairment with deficiencies in most areas or total occupational and total social impairment at any time during the appeal period prior to July 8, 2013 to warrant a next-higher rating of 70 or 100 percent.

Review of the evidentiary record indicates the Veteran attended group therapy sessions for PTSD in October 2012 and demonstrated an ongoing relationship with his wife, orientation in all spheres, normal appearance, depression, anxiety, irritability/anger problems, poor attention/disorganization, avoidance of others, nightmares, flashbacks, sleep impairment, daytime sleepiness, good and fair insight and judgment, restlessness, cooperation, and good eye contact.  There were no findings of looseness of associations or flight of ideas, visual or auditory hallucinations, paranoia, homicidal ideation or plan, speech impairment,  In fact, VA treating physicians concluded the Veteran was at a low imminent risk of danger in August 2012 and was not in acute danger to self or others in May 2013.  

The Board is aware that the symptoms listed under the next-higher ratings of 70 percent and 100 percent are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Moreover, entitlement to such evaluations require sufficient symptoms of the requirements, or others of similar severity, frequency, or duration, that cause the specific type of occupational and social impairment.  See Vazquez-Claudio, 713 F.3d at 117-18.  In this case, the Board acknowledges the Veteran's reports of fleeting suicidal ideation in May 2012.  The record does not show that it was of the frequency, severity, or duration to result in occupational and social impairment with deficiencies in most areas.  Nevertheless, the Board has considered the next-higher ratings for the entire initial appeal period prior to July 8, 2013 but finds that it is rated appropriately at 50 percent.  The signs and symptoms manifested are contemplated by the currently assigned rating of 50 percent as they do not manifest with the severity, frequency, or duration required for the 70 percent or 100 percent rating.

As such, the Board finds that an initial rating in excess of 50 percent prior to July 8, 2013 for the service-connected PTSD is not warranted in this case.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.

Right Shoulder Disability

The Veteran filed his initial claim requesting service connection for right shoulder strain in November 2010.  In the August 2012 VA rating decision, service connection for right shoulder disability was granted.  The Veteran was assigned a noncompensable (0 percent) disability rating for the entire appeal period effective from December 31, 2010 (date following separation from service).  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.  During the course of the appeal, in the May 2017 SSOC the AOJ assigned a 20 percent disability rating effective for the entire initial appeal period.  Id.

The Board considers whether an initial rating in excess of 20 percent for right shoulder disability is warranted at any time since the date of claim on December 31, 2010.

Diagnostic Code 5201 provides criteria for limitation of motion of the arm.  A minimum 20 percent evaluation is warranted for the major arm when its motion is limited to the shoulder level.  38 C.F.R. § 4.71a.  A 30 percent evaluation is warranted for the major arm when its motion is limited to midway between side and shoulder level, which means that flexion or abduction would need to be reduced to 45 degrees.  Id.  A 40 percent evaluation, the maximum available, is warranted for the major arm when its motion is limited to 25 degrees from the side.  Id.

For VA compensation purposes, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level; normal shoulder internal and external rotation is 0 degrees to 90 degrees, with 90 degrees being shoulder level.  38 C.F.R. § 4.71, Plate I.

In this case, the March 2017 VA DBQ examination report documents the Veteran is right hand dominant, thus the service-connected right shoulder disability is the major extremity.

The Board notes that the issue of service connection for a scar associated with the service-connected right shoulder disability was denied in an August 2012 VA rating decision.  The Veteran perfected that issue on appeal and it was denied on the merits in the March 2016 Board decision.  As a result, any further consideration will not be discussed in this case.

Review of the evidentiary record since December 31, 2010 documents the following symptomatology for the Veteran's right shoulder disability.

The Veteran underwent a VA examination in December 2010.  He reported pain with certain activities such as using a hammer or doing push-ups.  He reported sharp pain and morning stiffness.  The examiner noticed that the ranges of motion were "intact."  The diagnosis was right shoulder overuse syndrome.  In June 2012, an addendum was provided for clarification of what the examiner meant by ranges of motion being "intact."  The examiner noted that the Veteran's ranges of motion were measured at the examination and that he had normal range of motion of the right shoulder were normal at 0 to 180 degrees for flexion and abduction.  After three repetitions, the examiner noted that the ranges of motion did not change and that there was no sign of fatigue or pain.  

At the March 2017 VA DBQ examination for shoulder and arm conditions, the Veteran reported pain at rest, pain worse in the cold weather, unable to work out, takes pain medication, and has difficulty driving and lifting heavy loads, flare-ups of pain after significant usage.  Upon clinical evaluation, he demonstrated right shoulder flexion to 150 degrees and abduction to 90 degrees with pain, objective evidence of localized tenderness characterized as moderate wincing, and pain with weight and non-weight bearing.  The VA examiner concluded limited range of motion causes difficulty in lifting, pulling, and driving.  There were no objective findings of crepitus, muscle atrophy, ankylosis, instability, or impairment of the humerus.  The Veteran was not able to perform repetitive-use testing due to discomfort and pain.  

Review of VA treatment records dated from June 2012 to April 2017 show that in October 2012 the Veteran reported right shoulder pain and demonstrated good range of motion (not measured in degrees) in both shoulders with reported increased discomfort with internal rotation.  In May 2013 the Veteran reported limitations of function to, in part, (unspecified) shoulder pain which restricts his duration of activities.

After a review of the evidence discussed above for the entire appeal period since December 31, 2010, the Board finds that the Veteran's service-connected right shoulder disability has not been manifested by at least motion limited to midway between side and shoulder level.  The current symptomatology includes painful motion, limited motion, being unable to exercise, difficulty driving and lifting heavy loads, difficulty pushing and pulling, pain after significant usage, and pain with weight and non-weight bearing; nevertheless, such symptomatology is contemplated in the currently assigned 20 percent disability rating.  In fact, his range of motion findings of the right shoulder were, at worst, to 90 degrees abduction, which is contemplated in the currently assigned 20 percent disability rating.  To meet the 30 percent criteria, flexion or abduction would need to be reduced to 45 degrees.  As a result, a rating in excess of 20 percent is denied for the service-connected right shoulder disability.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.

Diagnostic Code 5200 provides higher ratings of 30, 40, and 50 percent, the maximum available, for ankylosis of the major arm.  See 38 C.F.R. § 4.71a.  Ankylosis is the complete immobility of a joint in a fixed position, either favorable or unfavorable.  Lewis v. Derwinski, 3 Vet. App. 259 (1992); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint").

Review of the evidentiary record does not indicate the service-connected right shoulder disability has been manifested by ankylosis to warrant a rating in excess of 20 at any time since December 31, 2010.  In fact, VA treatment records and the Mach 2017 VA DBQ examination report document active range of motion findings of the Veteran's right shoulder and no ankylosis.

Diagnostic Code 5202 provides higher ratings of 30, 50, 60, and 80 percent, the maximum available, for impairment of the humerus.  See 38 C.F.R. § 4.71a.  For the major arm, a 30 percent rating is warranted for recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements; a 50 percent rating is warranted for fibrous union of the humerus; a 60 percent rating is warranted for nonunion of the humerus (false flail joint); and a 80 percent rating, the maximum available, is warranted for loss of head of the humerus (flail shoulder).  Id.

Review of the evidentiary record does not indicate the service-connected right shoulder disability has been manifested by impairment of the humerus to warrant a rating in excess of 20 at any time since December 31, 2010.  In fact, the Mach 2017 VA DBQ examination report document no impairment of the right humerus.

The Board has considered other potentially applicable Diagnostic Codes.  See Schafrath, 1 Vet. App. at 589.  In this case, the evidence does not reflect that there are any other musculoskeletal disorders of the shoulder that the Veteran's right shoulder disability is more properly rated under another Diagnostic Code.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.  Accordingly, a higher initial rating under alternate Diagnostic Codes is not warranted.

Next, when evaluating musculoskeletal disabilities, VA may, in addition to applying scheduler criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996).

After a review of the evidence discussed above, the Board finds that the functional equivalent of motion limited to midway between side and shoulder level (flexion or abduction reduced to 45 degrees or less), ankylosis, or impairment of the humerus is not shown at any time during the appeal since December 31, 2010.  Such findings were not shown, even when considering the Veteran's reported symptomatology for the service-connected right shoulder disability.  Moreover, the currently assigned 20 percent disability rating was assigned by the RO for painful motion, as noted in the May 2017 SSOC.  The Veteran's reported symptomatology did not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 20 percent for the service-connected right shoulder disability at any time during the appeal period since December 31, 2010 under 38 C.F.R. §§ 4.40, 4.45 and the holdings in DeLuca.

As such, the Board finds that an initial rating in excess of 20 percent since December 31, 2010 for the service-connected right shoulder disability is not warranted in this case.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.

Traumatic Cataract in the Left Eye

The Veteran filed his initial claim requesting service connection for bilateral eye floaters in November 2010.  In the June 2012 VA rating decision, service connection for traumatic cataract was granted.  The Veteran was assigned a noncompensable (0 percent) disability rating for the entire appeal period effective from December 31, 2010 (date following separation from service).  See 38 C.F.R. § 4.79, Diagnostic Code 6027.  During the course of the appeal, in the May 2017 SSOC the AOJ assigned a 10 percent disability rating effective from March 17, 2017.  Id. at Diagnostic Code 6027-6066.

The Board considers whether an initial compensable rating prior to March 17, 2017 and in excess of 10 percent thereafter for traumatic cataract in the left eye is warranted.

Diagnostic Code 6027 provides that a preoperative cataract be evaluated based on visual impairment.  38 C.F.R. § 4.79.  In this case, the Veteran's service-connected traumatic cataract in the left eye was described by the March 2017 VA examiner as preoperative.  The rating criteria for visual impairment are set forth in Diagnostic Codes 6061-6066, 6080-6081, and 6090-6091.  Id.

Under Impairment of Central Visual Acuity (Diagnostic Codes 6061-6066), Diagnostic Code 6066 provides, in part, the following for evidence of corrected distance visual acuity of 20/70 in one eye: a 10 percent rating for evidence of corrected distance visual acuity of 20/40 in the other eye; a 20 percent rating for evidence of corrected distance visual acuity of 20/50 in the other eye; and 30 percent rating for evidence of corrected distance visual acuity of 20/70 in the other eye.  Id.  The rating criteria allow for higher ratings for more severe levels of impaired visual acuity.

Under Ratings for Impairment of Visual Fields (Diagnostic Codes 6080-6081), Diagnostic Code 6080 provides a 10 percent rating for loss of superior half of visual field (bilateral or unilateral), loss of inferior half of visual field (unilateral), loss of nasal half of visual field (bilateral or unilateral), or loss of temporal half of visual field (unilateral); a 30 percent rating, the maximum available, for loss of inferior half of visual field (bilateral), loss of temporal half of visual field (bilateral), or homonymous hemianopsia; and compensable ratings for concentric contraction of visual field.

Diagnostic Code 6081 provides a 10 percent rating, the maximum available, for unilateral scotoma.  In this case, consideration for a higher initial rating under Diagnostic Code 6081 is only applicable during the appeal period prior to March 17, 2017 and will be discussed as such below.

Under Ratings for Impairment of Muscle Function (Diagnostic Codes 6090-6091), compensable ratings are provided for diplopia and symblepharon.
      
      A.  Prior to March 17, 2017

Review of the evidentiary record from December 31, 2010 to March 16, 2017 documents the following symptomatology for the Veteran's eyes.

The Veteran underwent a VA eye examination in December 2010.  His uncorrected visual acuity was 20/30.  He reported that he had problems reading with his left eye and that he had left eye floaters for the previous few months.  He was diagnosed with a traumatic cataract of the left eye and astigmatism.  

Review of VA treatment records dated from June 2012 to February 2017 show the Veteran reported his left eye is chronically blurry in June 2012.  In February 2014 he displayed positive peripheral visual field perceptions.  In July 2015, diagnostic testing revealed only uncorrected vision results.  The Veteran also reported no vision changes in July 2015 and December 2016.

The Veteran was silent with regard to the degree of severity of his traumatic cataract in the left eye in the December 2012 notice of disagreement and July 2014 substantive appeal.

After review of the pertinent evidence of record, the Board finds that the Veteran's service-connected traumatic cataract in the left eye was not manifested by corrected distance visual acuity worse than 20/20, visual field defects, concentric contraction of visual field, unilateral scotoma, diplopia, or symblepharon.  As discussed above, the relevant symptomatology included blurry vision yet such symptomatology is contemplated in the currently assigned 0 percent disability rating.  As a result, an initial compensable rating is denied for the appeal period prior to March 17, 2017 for service-connected traumatic cataract in the left eye.  See 38 C.F.R. § 4.79, Diagnostic Codes 6066, 6080, 6081, 6090, 6091.

      B.  Since March 17, 2017

Review of the evidentiary record since March 17, 2017 documents the following symptomatology for the Veteran's eyes.

At the March 17, 2017 VA DBQ examination for eye conditions, the Veteran reported his current condition worsened since service resulting in blurred vision of the left eye.  Upon clinical evaluation, he demonstrated corrected distance visual acuity of 20/70 in the left eye 20/40 in the right eye, to which the VA examiner attributed the decrease in visual acuity to the traumatic cataract in the left eye.  There were no findings of anatomical loss, light perception only, extremely poor vision, blindness of either eye, astigmatism, diplopia, contraction of a visual field, loss of a visual field, or functional impairment.

Review of VA treatment records dated from March 22, 2017 to April 2017 document the Veteran reported no vision changes on March 28, 2017 and no other reported symptomatology or treatment for his traumatic cataract in the left eye.

After review of the pertinent evidence of record, the Board finds that the Veteran's service-connected traumatic cataract in the left eye has not been manifested by corrected distance visual acuity of 20/70 in one eye and worse than 20/40 in the other eye, visual field defects, concentric contraction of visual field, diplopia, or symblepharon.  As discussed above, the relevant symptomatology includes blurry vision and corrected distance visual acuity of 20/70 in the left eye 20/40 in the right eye; nevertheless, such symptomatology is contemplated in the currently assigned 10 percent disability rating under Diagnostic Code 6066.  As a result, an initial rating in excess of 10 percent is denied for the appeal period since March 17, 2017 for service-connected traumatic cataract in the left eye.  See 38 C.F.R. § 4.79, Diagnostic Codes 6066, 6080, 6090, 6091.

Right Ankle Surgical Scar

The Veteran filed his initial claim requesting service connection for bilateral ankle strain in November 2010.  In the August 2012 VA rating decision, service connection for right ankle surgical scar was granted.  The Veteran was assigned a noncompensable (0 percent) disability rating for the entire appeal period effective from December 31, 2010 (date following separation from service).  See 38 C.F.R. § 4.118, Diagnostic Code 7805.  During the course of the appeal, in the May 2017 SSOC the AOJ assigned a 10 percent disability rating for two painful scars effective from March 3, 2017.  Id. at Diagnostic Code 7805-7804.

The Board considers whether an initial compensable rating prior to March 3, 2017 and in excess of 10 percent thereafter for right ankle surgical scars is warranted.

Diagnostic Code 7805 provides that scars, other (including linear scars) and other effects of scars be evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804.  38 C.F.R. § 4.118.

Diagnostic Code 7800 provides for scar(s) or disfigurement of the head, face, or neck.  38 C.F.R. § 4.118.  In this case, the service-connected scars are located on the Veteran's right ankle.  As a result, consideration of higher initial ratings under Diagnostic Code 7800 is not warranted in this case.

Diagnostic Code 7801 provides compensable ratings from 10 percent to 40 percent for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear.  Id.  A deep scar is one associated with underlying soft tissue damage.  Id. at Diagnostic Code 7801, Note (1).

Diagnostic Code 7802 provides a 10 percent disability rating, the maximum available, for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear and measures an area of 144 square inches (929 square centimeter) or greater.  38 C.F.R. § 4.118.  A superficial scar is one not associated with underlying soft tissue damage.  Id. at Diagnostic Code 7802, Note (1).  In this case, consideration for a higher initial rating under Diagnostic Code 7802 is only applicable during the appeal period prior to March 3, 2017 and will be discussed as such below.

Diagnostic Code 7804 provides a 10 percent disability rating for one or two scars that are unstable or painful; a 20 percent disability rating for three or four scars that are unstable or painful; and a 30 percent disability rating, the maximum available, for five or more scars that are unstable or painful.  38 C.F.R. § 4.118.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id. at Diagnostic Code 7804, Note (1).

Diagnostic Code 7805 also provides that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 are to be evaluated under an appropriate diagnostic code.  38 C.F.R. § 4.118.  The Board notes that the issue of entitlement to service connection for a right ankle sprain was denied in a December 2012 VA rating decision due to failure to attend the scheduled VA examination.  The Board also notes that the record is silent, as is the Veteran, for any disabling effects of the right ankle manifested by the service-connected right ankle surgical scar.  In fact, the March 2017 VA examiner documented these scars did not result in limitation of function or in any other pertinent physical findings, complications, conditions, signs, or symptoms (such as muscle or nerve damage).  As a result, consideration of higher initial ratings under an appropriate Diagnostic Code for disabling effects of the service-connected right ankle surgical scars under Diagnostic Codes 7800-04 is not warranted in this case.

      A.  Prior to March 3, 2017

Review of the evidentiary record from December 31, 2010 to March 2, 2017 documents the following symptomatology for the Veteran's right ankle surgical scars.

At the December 2010 VA examination, a right ankle scar was noted.  At the August 2012 VA DBQ examination for ankle conditions, clinical findings revealed the Veteran had scar(s) (surgical or otherwise) related to the treatment of the diagnosed ankle sprain.  The VA examiner documented "no" for any findings of any of the scars being painful and/or unstable or the total area of all related scars measuring greater than 39 square centimeter (cm) (6 square inches); therefore, no DBQ for scars was completed.

Review of VA treatment records dated from June 2012 to February 2017 are silent for reported symptomatology or treatment for his right ankle surgical scars.

The Veteran was also silent with regard to the degree of severity of his right ankle surgical scars in the December 2012 notice of disagreement and July 2014 substantive appeal.

After review of the pertinent evidence of record, the Board finds that the Veteran's service-connected right ankle surgical scars were not manifested by underlying soft tissue damage (deep) or nonlinear, measurements of an area of 144 square inches (929 square cm) or greater, instability, or pain.  In fact, as discussed above, the relevant symptomatology included just the mere existence of these scars and northing further from the August 2012 VA examiner or the Veteran during this appeal period.  As a result, an initial compensable rating is denied for the appeal period prior to March 3, 2017 for service-connected right ankle surgical scars.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804.

      B.  Since March 3, 2017

Review of the evidentiary record since March 3, 2017 documents the following symptomatology for the Veteran's right ankle surgical scars.

At the March 3, 2017 VA DBQ examination for scars/disfigurement, clinical findings revealed two linear scars on the anterior to the right lateral malleolus of the right ankle measuring 1.2 cm by 0.1 cm and 2.0 cm by 0.1 cm and of which one was painful and tender to palpation.  The VA examiner further documented there were no findings of these scars being unstable, with frequent loss of covering of skin over the scar.

Review of VA treatment records dated from March 22, 2017 to April 2017 are silent for reported symptomatology or treatment for his right ankle surgical scars.

After review of the pertinent evidence of record, the Board finds that the Veteran's service-connected right ankle surgical scars have not been manifested by underlying soft tissue damage (deep) or nonlinear nor consist of three or more scars.  As discussed above, the relevant symptomatology includes one painful linear scar on the right ankle which is contemplated in the currently assigned 10 percent disability rating under Diagnostic Code 7804.  As a result, an initial rating in excess of 10 percent is denied for the appeal period since March 3, 2017 for service-connected right ankle surgical scars.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7804.

Additional Considerations

The Board considers the Veteran's reported history of symptomatology related to the service-connected PTSD, right shoulder disability, traumatic cataract in the left eye, and right ankle surgical scars.  He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through ones senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for higher initial ratings for his PTSD, right shoulder disability, traumatic cataract in the left eye, and right ankle surgical scars have been met.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  In this case, competent evidence concerning the nature and extent of the Veteran's disabilities have been provided in the medical evidence of record.  As such, the Board finds these records to be more probative than the Veteran's subjective reported worsened symptomatology.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

The Board has also considered the possibility of staged ratings and finds that the scheduler ratings for the service-connected disabilities on appeal have been in effect for appropriate periods on appeal.  Accordingly, staged ratings are inapplicable.  See Hart, 21 Vet. App. at 505.

Lastly, a total disability rating based on individual unemployability has not been raised because the Veteran does not contend, and the evidence does not show, that the service-connected disabilities on appeal render him unemployable.  Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).


ORDER

An initial rating in excess of 50 percent for PTSD prior to July 8, 2013 is denied.

An initial rating in excess of 20 percent for right shoulder disability is denied.

An initial compensable rating prior to March 17, 2017 and in excess of 10 percent thereafter for traumatic cataract in the left eye is denied.

An initial compensable rating prior to March 3, 2017 and in excess of 10 percent thereafter for right ankle surgical scars is denied.


REMAND

The Veteran filed his initial claim requesting service connection for bilateral foot calluses/bunions in November 2010.  In the June 2012 VA rating decision, service connection for bilateral foot calluses was granted.  The Veteran was assigned a noncompensable (0 percent) disability rating for the entire appeal period effective from December 31, 2010 (date following separation from service).  See 38 C.F.R. § 4.118, Diagnostic Code 7819.  During the course of the appeal, in the May 2017 SSOC the AOJ assigned a 10 percent disability rating for two painful scars effective from March 3, 2017.  Id. at Diagnostic Code 7819-7804.

The Board considers whether an initial compensable rating prior to March 3, 2017 and in excess of 10 percent thereafter for bilateral foot calluses is warranted.

Diagnostic Code 7819 provides that benign skin neoplasms are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function.  38 C.F.R. § 4.118.

During the course of the appeal, the Veteran has been afforded VA examinations for his service-connected bilateral foot calluses in August 2012 and March 2017.  Nevertheless, review of the record is silent for any evaluation of the impairment of function of the foot by a VA examiner.  As a result, the Board finds that a remand is needed to obtain an additional VA examination for bilateral foot calluses because the record is insufficient to decide the claim.  

Accordingly, the case is REMANDED for the following actions:

1.  Schedule the Veteran for an VA foot conditions examination with an appropriate clinician to determine the current severity of his bilateral foot calluses and to specifically determine whether they impair his foot function.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.

The examiner must provide all findings, along with a complete rationale for any opinions provided, to include whether the service-connected bilateral foot calluses have been manifested (at any time since December 31, 2010) by impairment of function of the foot.

2.  Then, the AOJ should review the examination report and medical opinions to ensure that the requested information was provided.  If the report or any opinion is deficient in any manner, the AOJ must implement corrective procedures.

3.  Then, readjudicate the claim.  If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs