Citation Nr: 20003231 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 19-03 929 DATE: January 14, 2020 ORDER Entitlement to a 70 percent rating for major depressive disorder is granted. Entitlement to a rating higher than 20 percent prior to February 10, 2019 (excluding a period of temporary total rating) and higher than 80 percent since for left shoulder impingement and rotator cuff tear is denied. Entitlement to a rating higher than 10 percent prior to February 10, 2019, and higher than 30 percent since for residual surgery scars of the left shoulder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected major depressive disorder is remanded. Entitlement to special monthly compensation (SMC) at the housebound rate (other than from July 14, 2017 to September 1, 2017) is remanded. FINDINGS OF FACT 1. As of January 3, 2017, the date of the claim for an increased disability rating, the Veteran’s major depressive disorder manifests as occupational and social impairment with deficiencies in most areas, such as work, judgment, thinking or mood. 2. Prior to February 10, 2019, the Veteran’s left shoulder impingement and rotator cuff tear did not manifest in limitation of motion of his left arm to 25 degrees from his side. 3. From February 10, 2019, the Veteran has been assigned the maximum schedular rating available for left shoulder impingement and rotator cuff tear. 4. Prior to February 10, 2019, residual surgery scars of the left shoulder were not manifested by three or four scars that were unstable or painful. 5. From February 10, 2019, residual surgery scars of the left shoulder have not been shown to exceed 144 square inches in total area. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for major depressive disorder have been met as of January 3, 2017. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a rating higher than 20 percent prior to February 10, 2019 (excluding a period of temporary total rating) and 80 percent since for left total hip replacement have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.71a, Diagnostic Codes 5201, 5202. 3. The criteria for a rating higher than 10 percent prior to February 10, 2019, and higher than 30 percent since for residual surgery scars of the left shoulder have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Navy from February 1996 to November 1999 and from March 2002 to April 2011, with service during the Gulf War Era. These matters come before the Board of Veterans’ Appeals on appeal of October and November 2017 rating decisions. In September 2019, the Veteran provided testimony at a Board hearing. A transcript of the hearing is of record. In October 2019, the Veteran’s attorney submitted additional evidence along with a waiver of initial RO review of the evidence. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to a 70 percent rating for major depressive disorder The Veteran is seeking a higher rating for his service-connected major depressive disorder. His present claim seeking a higher rating was received on January 3, 2017. Pursuant to the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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; obsessive rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. On VA mental disorders examination in September 2017, the Veteran endorsed the following symptoms: depressed mood, anxiety, near-continuous depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect; disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. On VA mental disorders examination in January 2019, the Veteran reported having a depressed mood, diminished interest in activities, insomnia, fatigue, feelings of worthlessness and guilt, concentration issues, and recurrent thoughts of death without a plan or intent to harm himself. He also reported feeling tense and fearing that something awful may happen. In addition, the following symptoms were endorsed: depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, and suicidal ideation. He was satisfactorily groomed. He was cordial and cooperative. His thought process and thought content were normal. The examiner noted that the Veteran’s suicidal ideation may create safety issues in the workplace. He did not appear to be pose any threat of danger or injury to self or others. The examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. On VA mental disorders examination in May 2019, the Veteran endorsed the following symptoms: depressed mood, anxiety, suspiciousness, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships. On mental status examination, the Veteran was noted to be groomed. His affect was congruent. He was cooperative and tearful at times. He denied having any current suicidal, homicidal or paranoid ideation. No auditory or visual hallucinations were noted. He was alert and oriented to name, place, time and situation. The examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. On VA mental disorders examination in September 2019, the Veteran endorsed the following symptoms: depressed mood, anxiety, suspiciousness, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships. On mental status examination, the Veteran was noted to be groomed. His affect was congruent. He was cooperative and tearful at times. He denied having any current suicidal, homicidal or paranoid ideation. No auditory or visual hallucinations were noted. He was alert and oriented to name, place, time and situation. The examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. Based on the evidence above, the Board finds that from January 3, 2017 (the date the intent to file a claim was received), the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 70 percent for his service-connected major depressive disorder. The Veteran had symptoms listed in the criteria for a 70 percent rating, including suicidal ideation, as well as deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (the language of the general rating formula indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). However, the evidence does not reflect that a 100 percent rating is warranted. Notably, the evaluations indicate that the Veteran was oriented to time, place and person. He was cooperative and not delusional. The evidence did not demonstrate the presence of psychosis or gross impairment in thought processes or communication and the Veteran demonstrated consistent ability to perform activities of daily living. Given the above, the Board finds that the evidence of record reflects occupational and social impairment that is less than total. As such, a higher 100 percent rating is not warranted for the Veteran’s service-connected major depressive disorder. As such, a disability rating of 70 percent, but not higher, from January 3, 2017 is warranted. 2. Entitlement to a rating higher than 20 percent prior to February 10, 2019 (excluding a period of temporary total rating) and 80 percent since for left shoulder impingement and rotator cuff tear The Veteran seeks entitlement to an evaluation more than 20 percent for his left shoulder disability, for the period prior to February 10, 2019 and greater than 80 percent since. During the course of the appeal, a September 2019 decision review officer decision increased the rating to 80 percent from February 10, 2019. Both periods are currently on appeal. Moreover, the Veteran was in receipt of 100 percent disability rating from July 14, 2017 to August 31, 2017. Therefore, the Board will not address this time period as he was receiving the maximum disability rating available during that time. Prior to February 10, 2019, the RO evaluated the Veteran’s left shoulder disability under Diagnostic Code 5201 and from February 10, 2019, under Diagnostic Code 5202. Diagnostic Code 5201 provides a 20 percent rating for a major or minor extremity where range of motion is limited to lifting an arm to shoulder level. Where limitation of the arm is limited to midway between a veteran’s side and shoulder level, Diagnostic Code 5201 provides a 30 percent evaluation for a major extremity. Where limitation of the arm is limited to 25 degrees from the side, Diagnostic Code 5201 affords a 40 percent rating for a major extremity. Diagnostic Code 5201 does not provide separate ratings for limitations on flexion, extension, abduction and rotation, but rather permits only a single rating for limitation of motion of an arm. Yonek v. Shinseki, 722 F.3d 1355, 1359. Diagnostic Code 5202 provides a 20 percent rating for impairment of the humerus with recurrent dislocation at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. A 30 percent rating is assigned with recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements. A 30 percent rating can also be assigned under Diagnostic Code 5202 based on malunion of the humeral head with marked deformity. Under Diagnostic Code 5202, 50, 60, and 80 percent ratings are assigned, respectively, for fibrous union of the humerus, nonunion of the humerus (false flail joint), and loss of head of the humerus (flail shoulder) in the major arm. Normal range of motion for the shoulder is from 0 to 180 degrees flexion and abduction, and 0 to 90 degrees of external and internal rotation. 38 C.F.R. § 4.71, Plate I. Upper extremity ratings depend on whether the disabled extremity is the major or minor extremity. The major extremity is the one predominantly used by the veteran. Only one extremity may be considered to be major. 38 C.F.R. § 4.69. Here, VA examination reports in September 2017 and in July 2018 indicate that the Veteran’s left arm is his minor upper extremity, however, on VA examination June 2019, it was indicated that the Veteran was ambidextrous. Accordingly, prior to February 10, 2019, the shoulder has been evaluated as a minor extremity and since February 10, 2019, the left shoulder has been evaluated as a major extremity. Further, 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 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). 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). On VA examination in September 2017, the Veteran reported that due to his shoulder condition, he could not pick up or carry heavy objects. Left shoulder flexion was to 100 degrees, abduction was 90 degrees, internal rotation was to 70 degrees, and external rotation was to 70 degrees, with pain noted during each movement. Measurements after three repetitions showed left shoulder flexion to 100 degrees, abduction to 90 degrees, internal rotation to 70 degrees, and external rotation to 70 degrees. Upon repeated use over time, flexion was to 95 degrees, abduction was to 85 degrees, internal rotation was to 65 degrees and external rotation was to 65 degrees. No ankylosis was reported, but Hawkins’ Impingement Test was positive. Empty-can test was positive. The examiner noted that there was no impairment to the clavicle, scapula, acromioclavicular joint, sternoclavicular joint, and humerus. In a March 2018 VA Disability Benefits Questionnaire completed by a private physician, forward flexion of the left shoulder was to 160 degrees, abduction was to 90 degrees (active) and to 160 degrees (passive), external rotation was to 80 degrees and internal rotation was to 80 degrees. Estimated range of motion due to pain and/or functional loss indicated that both flexion and abduction were to 90 degrees each. On VA examination in July 2018, left shoulder forward flexion was to 50 degrees, abduction was to 60 degrees, external rotation was to 10 degrees and internal rotation was to 70 degrees, with pain noted during each movement. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after the repetitions. There was no reduction in muscle strength. There was no ankylosis of the shoulder. Hawkin’s impingement test and empty-can test were both positive. There was no shoulder instability, dislocation or labral pathology. The examiner noted that there was no impairment to the clavicle, scapula, acromioclavicular joint, sternoclavicular joint, and humerus. On VA examination in June 2019, it was noted that the Veteran was ambidextrous. Left shoulder forward flexion was to 40 degrees, abduction was to 55 degrees, external rotation was to 8 degrees and internal rotation was to 65 degrees. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after the repetitions. Following repeated use, flexion was to 30 degrees, abduction was to 40 degrees, external rotation was to 5 degrees and internal rotation was to 50 degrees. There was a reduction in muscle strength. There was no ankylosis. There was loss of head (flail joint). For the period prior to February 10, 2019, a 30 percent rating is not assignable for the left shoulder disability because there is no evidence of limitation of motion of the left shoulder at 25 degrees to the side. A rating higher than 20 percent for the left shoulder disability is not warranted based on functional loss due to pain, weakness, premature or excess fatigability, and incoordination causing additional disability beyond that reflected in range of motion measurements. 38 C.F.R. §§ 4.40, 4.45. As indicated above, the lay and medical evidence of record suggests that pain, weakness, fatigability or incoordination that significantly limits functional ability with repeated use over time; and that factors causing functional loss included pain, fatigue, weakness and lack of endurance. While these factors are suggestive of an additional limitation of motion that is less than shoulder level, at the maximum, they are suggestive of an additional limitation of motion between side and shoulder level. However, given that the assignable rating for a minor extremity, left shoulder disability would still be at 20 percent disabling, a higher rating is not warranted when sections 4.40 and 4.45 are considered. For the period after February 10, 2019, the Veteran has been in receipt of the maximum schedular rating under Diagnostic Code 5202. Therefore, a higher rating is not available under this diagnostic code. The record on appeal does not support evaluating the Veteran’s left shoulder disability under alternate diagnostic codes. The VA examinations did not identify ankylosis in the left shoulder; therefore, Diagnostic Code 5200 is not applicable. Diagnostic Code 5203 is not applicable because the record does not document dislocation, nonunion, or malunion of the clavicle and scapula. Lastly, Diagnostic Code 5051, which applies to prosthetic shoulder replacements, is not applicable here because the Veteran has not had shoulder replacement surgery. As such, a rating more than 20 percent for the period prior to February 10, 2019 and more than 80 percent since is not warranted. 3. Entitlement to a rating higher than 10 percent prior to February 10, 2019, and higher than 30 percent since for residual surgery scars of the left shoulder The Veteran seeks entitlement to an evaluation more than 10 percent for residual surgery scars of the left shoulder, for the period prior to February 10, 2019 and greater than 30 percent since. During the course of the appeal, a September 2019 decision review officer decision increased the rating to 30 percent, effective February 10, 2019. Both periods are currently on appeal. The Veteran’s residual surgery scars of the left shoulder are evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7804. Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful; a 20 percent rating is assigned for three or four scars that are unstable or painful; and a maximum 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Id. at Note (1). An additional 10 percent may be added if a scar is both unstable and painful. Id. at Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. Id. at Note (3). On VA scars examination in January 2019, nine separate scars from three arthroscopic left shoulder surgeries were noted. A large keloidal scar, slightly tender to the touch and measuring 2.5 cm x 2 cm on the posterior aspect was noted by the examiner. The examiner stated that the other 8 portal scars were well-healed and nontender, measuring 1 cm area each. The approximate total area was 13 cm2. None of the scars had underlying tissue damage. None of the scars resulted in limitation of function. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms associated with any of the scars. On VA scars examination in August 2019, the examiner noted that five or more scars of the trunk or extremities were painful. Specifically, there was pain and itching to keloids located on the left shoulder. None of the scars were unstable, with frequent loss of covering of skin. Scar #1 was measured as 4 x 4 cm, scar #2 was measured as 1 x 1 cm, scar #3 was measured as 1 x 1 cm, scar #4 was measured as 1x 1 cm. and scar #5 was measured as 1 x 1 cm. Four additional scars measured as 0.5 cm. None of the scars had underlying tissue damage. Prior to February 10, 2019, the evidence of record does not support a rating in excess of 10 percent as only one scar was noted to be painful. There was no evidence that the scar was unstable, with frequent loss of covering skin over the scar, which would warrant a higher rating under Diagnostic Code 7804. Also, the clinical findings do not warrant a rating in excess of 30 percent from February 10, 2019. The current 30 percent rating is the maximum allowed under Diagnostic Code 7804. The Board has also considered the applicability of other diagnostic codes that could possibly afford the Veteran a higher rating. For example, under Diagnostic Code 7805, other types of scars will be rated based on impairment of function of the affected part. However, the Board finds that any functional impairment caused by pain associated with the Veteran’s scars are contemplated under the currently-assigned 10 and 30 percent ratings. As the Veteran’s scars are not located on his head, face, or neck, Diagnostic Code 7800 does not apply. As the Veteran’s scars do not cover an area of 144 square inches or greater, a higher rating is not available under Diagnostic Codes 7801 and 7802. As such, a rating more than 10 percent for the period prior to February 10, 2019 and more than 30 percent since is not warranted. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. In an October 2019 statement, the Veteran’s attorney representative stated that the Veteran’s major depressive disorder alone precludes him for engaging in any substantially gainful employment. The Board notes that prior to February 10, 2019, the Veteran had a combined rating of 90 percent based on his service-connected disabilities and has a 100 percent rating thereafter. The Veteran is seeking a TDIU both prior to and subsequent to February 10, 2019. In an October 2019 private opinion, Dr. J. G, a private psychologist, opined that the Veteran’s psychiatric disorder substantially impaired important aspects relating to seeking out, attaining and retaining competitive employment. However, in a September 2017 VA mental disorders examination report, the Veteran reported working full-time. In his TDIU application received in February 2019, the Veteran reported that he last worked full-time in February 2018. On remand the AOJ should obtain all appropriate documentation to verify the Veteran’s employment status during the period on appeal. 2. Entitlement to SMC at the housebound rate (other than from July 14, 2017 to September 1, 2017) is remanded. The Veteran’s attorney representative raised the issue of entitlement to SMC at the housebound level in an October 2019 statement. The SMC claim is inextricably intertwined with the TDIU claim on appeal must also be remanded. On remand, the RO should also adjudicate this claim. The matters are REMANDED for the following action: 1. With all necessary assistance from the Veteran and his attorney, obtain all appropriate information regarding the Veteran’s past employment. (Continued on next page) 2. Then, the Veteran’s claims must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, he must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Then, the case should be returned to the Board for further action. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.