Citation Nr: 20022058 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-46 761 DATE: March 30, 2020 ORDER A rating in excess of 30 percent for the Veteran’s right shoulder disability is denied. A rating in excess of 10 percent for the Veteran’s right shoulder scars is denied. REMANDED The issue of service connection for the Veteran’s left knee disability is remanded. The issue of service connection for an acquired psychiatric disorder, to include depression, an adjustment disorder, insomnia, anxiety, and posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s right shoulder disability has been characterized by recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements of the major arm. 2. Throughout the period on appeal, the Veteran’s right shoulder scars have been characterized by one painful scar and five scars that are stable and unpainful. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71, 4.71a, DC 5201. 2. The criteria for a rating in excess of 10 percent for right shoulder scars have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DCs 7800-7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from April 1996 to May 1998. These matters come before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision. In February 2019, the Board remanded the Veteran’s appeal for the purposes of issuing a Supplemental Statement of the Case (SSOC). The claim has since been returned to the Board for review. Although the Board regrets the delay in yet another remand, further development is required regarding the issues of service connection for the Veteran’s left knee disability and service connection for an acquired psychiatric disorder. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Right Shoulder The Veteran contends that he is entitled to a rating in excess of 30 percent for his right shoulder disability, evaluated under DC 5202. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (DC 5200), limitation of motion of the arm (DC 5201), other impairment of the humerus (DC 5202), or impairment of the clavicle or scapula (DC 5203). Additionally, the terms “major” and “minor” are used in the rating criteria to refer to the dominant or non-dominant upper extremity. 38 C.F.R. § 4.69. The evidence demonstrates that the Veteran’s right arm is his dominant upper extremity. The Veteran is currently assigned a 30 percent rating for his right shoulder disability under 38 C.F.R. § 4.71a, DC 5202. A rating of 30 percent or greater under DC 5202 is warranted when the evidence demonstrates humerus impairment with: • recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements of the major arm (30 percent); • fibrous union of the major arm (50 percent); • nonunion of (false flail joint) of the major arm (60 percent); or • loss of head of (flail shoulder) of the major arm (80 percent); 38 C.F.R. § 4.71a, DC 5202. Additionally, a rating of 30 percent or greater under DC 5201 is warranted when the evidence demonstrates: • limitation of motion to midway between side and shoulder level of the major arm (30 percent); or • limitation of motion to 25 degrees from the side for the major arm (40 percent schedular maximum). 38 C.F.R. § 4.71a, DC 5201. The Board finds that a rating in excess of 30 percent for the Veteran’s right shoulder disability is not warranted. First, the Veteran underwent an in-person VA examination with claims file review regarding his right shoulder disability in April 2013. The Veteran reported a history of multiple right shoulder surgeries with continuing pain, popping, and flare-ups. The examiner diagnosed recurrent dislocation of the right shoulder. The examiner documented that the Veteran’s dominant upper extremity is his right upper extremity. The examiner documented the Veteran’s right shoulder flexion to be 0 to 130 degrees with painful motion at 85 degrees and abduction to be 0 to 40 degrees with painful motion at 30. The examiner noted that the Veteran had no additional range of motion loss with repetitive testing. The examiner noted that the Veteran had daily flare-ups but did not provide any range of motion measurements to determine whether the Veteran had additional functional loss during flare-ups. The examination did not reveal any ankylosis or that the humerus had fibrous unions, nonunion, or loss of head. The Board finds the conclusions of the April 2013 VA examiner to be of little probative value as the examiner did not properly provide measurements regarding additional range of motion loss due to flare ups. Sharp v. Shinseki, 29 Vet. App. 26 (2017). Thus, the Board finds the April 2013 VA examination to be inadequate for rating purposes. Next, the Veteran underwent a second in-person VA examination with claims file review regarding his right shoulder disability in August 2016. The examiner documented that the Veteran’s dominant upper extremity is his right upper extremity. The examiner noted that the Veteran had an additional shoulder surgery since his last VA examination in April 2013 and a history of multiple prior surgeries. The examiner documented that the Veteran did not report any flare-ups of his right shoulder. The examiner found that the Veteran had recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements of the dominant arm. The examiner documented the Veteran’s right shoulder flexion to be 0 to 70 degrees, abduction to be 0 to 70 degrees, external rotation to be 0 to 30, and internal rotation to be 0 to 30 degrees. The examiner noted that the Veteran was not able to perform repetitive testing due to recurrent dislocation with any movement. Additionally, the examiner noted that the examination did not reveal any ankylosis or that the humerus had fibrous unions, nonunion, or loss of head. The Board finds the conclusions of the August 2016 VA examiner to be of highly probative value. The examiner specifically noted that the Veteran’s right shoulder is his dominant shoulder and documented recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements of the dominant arm. Further, the examiner documented the right shoulder flexion to be 0 to 70 degrees and abduction to be 0 to 70 degrees, which is greater than a limitation of 25 degrees as required for a higher rating under DC 5201. Lastly, the examiner also specifically noted the examination did not reveal any ankylosis or that the humerus had fibrous unions, nonunion, or loss of head as required for a higher rating under DC 5202. Therefore, the Board finds that the Veteran’s right shoulder disability is adequately contemplated by the 30 percent rating criteria. In the VA Form 9 submitted in September 2016, the Veteran stated that he was recommended to undergo an additional shoulder surgery in October 2016 due to worsening symptoms. Further, in the May 2017 Notice of Disagreement the Veteran stated that his right shoulder symptoms had worsened. In lighten of the Veteran’s assertions of a worsening of his right shoulder disability, the Veteran was afforded a third in-person VA examination with claims file review regarding his right shoulder disability in March 2018. The examiner documented that the Veteran’s dominant upper extremity is his right upper extremity. The examiner noted that the Veteran had an additional shoulder surgery since his last VA examination in August 2016. The examiner documented that the Veteran did not report any flare-ups of his right shoulder. The examiner documented the Veteran’s right shoulder flexion to be 0 to 30 degrees, abduction to be 0 to 30 degrees, external rotation to be 0 to 50, and internal rotation to be 0 degrees. The examiner noted that the Veteran was not able to perform repetitive testing due to pain. Additionally, the examiner noted that the examination did not reveal any ankylosis or that the humerus had fibrous unions, nonunion, or loss of head. The Board finds the conclusions of the March 2018 VA examiner to be of highly probative value. The examiner specifically noted that the Veteran’s right shoulder is his dominant shoulder and documented the right shoulder flexion to be 0 to 30 degrees and abduction to be 0 to 30 degrees, which is greater than a limitation of 25 degrees. Further, the examiner also specifically noted the examination did not reveal any ankylosis or that the humerus had fibrous unions, nonunion, or loss of head. Therefore, the Board again finds that the Veteran’s right shoulder disability is adequately contemplated by the 30 percent rating criteria. The Board notes that the Veteran’s medical treatment records indicate complaints of an ongoing right shoulder disability; however, the records do not contain the findings and diagnostic testing necessary to properly assign a disability rating. Therefore, the Board finds these medical treatment records to be of little probative value. Accordingly, the Board concludes that the preponderance of the evidence demonstrates that a rating in excess of 30 percent for a right shoulder disability is not warranted, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. Right Shoulder Scars The Veteran is seeking a rating in excess of 10 percent for scars associated with his right shoulder surgeries. Disability ratings for scars are assigned under 38 C.F.R. § 4.118 DC 7800-7804. As an initial matter, DC 7800 is not applicable, as the Veteran’s scars are not to the head, face, or neck. In order to warrant a rating of 10 percent or greater for scars not to the head, face or neck, the evidence must show a scar that is: • deep, nonlinear, and an area or areas of at least 6 sq. in. (39 sq. cm.) but less than 12 sq. in. (77 sq. cm.) (10 percent under DC 7801); • superficial, linear, and an area of 144 sq. in. (929 sq. cm.) (10 percent under DC 7802); • one or two scars in number that are unstable or painful (10 percent under DC 7804); or • if one or two scars are both unstable and painful, then a 20 percent rating is warranted under DC 7804, Note (2). 38 C.F.R. § 4.118. The Board notes that 38 C.F.R. § 4.118 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Additionally, 38 C.F.R. § 4.118 was amended in August 2018, and the code prior to this amendment, which was in effect during part of the period on appeal, must also be considered. In order to warrant a rating or 10 percent or greater for scars not to the head, face or neck, under the prior codification of 38 C.F.R. § 4.118, the evidence must show a scar that is: • deep, causes limited motion, and area or areas exceeding 6 sq. in. (39 sq. cm.) (10 percent under 7801); • superficial, nonlinear, and area or areas of 144 sq. in. (929 sq. cm.) or greater (10 percent under 7802); • superficial and unstable (10 percent under 7803); • superficial and painful on examination (10 percent under 7804); or • three or four scars that are unstable or painful (20 percent under DC 7804). 38 C.F.R. § 4.118, DCs 7801-7804 (2008). The Board has reviewed the evidence of record and finds that a rating in excess of 10 percent is not warranted for the Veteran’s scars associated with his right shoulder surgeries. As noted above, in April 2013, the Veteran underwent an in-person VA examination with claims file review regarding his right shoulder disability and associated scars. The examiner documented two linear scars, with the first measuring 18 cm. x 0.1 cm. and the second measuring 12 cm. x 1 cm. The examiner noted that the Veteran’s scars were not painful or unstable. Subsequently in an April 2016 statement regarding his right shoulder scars, the Veteran stated that he was still on pain medication for his shoulder during the April 2013 VA examination, which affected his ability to properly assess whether any of his right shoulder scars were painful. In light of the Veteran’s assertion regarding properly assessing the painfulness of his right shoulder scars, the Veteran was afforded a second VA examination in July 2016. The examiner noted that the Veteran now had five deep non-linear scars and one linear scar. The examiner noted the first scar was linear and measured 3 cm., and that the remaining scars were non-linear measuring 1 cm. x .05 cm., 8 cm. x 1.5 cm., 14 cm. x 2 cm., and 8 cm. x 1 cm. The examiner found that the total area affected measured 48.5 sq. cm. (7.5 sq. in.). The examiner noted that only one scar was painful upon palpitation during the examination, that none of the scars were unstable, and that the scars did not result in any limitation of function. Further, an additional VA examination in March 2018, provided to assess the severity of the Veteran’s right shoulder disability as noted above, demonstrated that the Veteran reported that none of his scars were painful and the examiner determined that none of the scars were unstable. The Board finds that throughout the rating period on appeal the Veteran’s right shoulder scars have been adequately contemplated by the 10 percent rating criteria as the total area affected by his scars does not exceed 77 sq. cm. (12 sq. in.), the scars are not unstable, the scars do not cause any limitation of function, and only one scar was reported at times to be painful. The Board notes that at times the Veteran reported that none of the scars were painful, which is consistent with a noncompensable rating; however, as the Veteran stated that this was due to pain medication, the Board will not consider the alleviating effects of medication. Therefore, the Board finds that throughout the period on appeal, the Veteran’s right shoulder scars associated with right shoulder surgeries were adequately contemplated by the 10 percent rating criteria. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of a rating in excess of 10 percent for right shoulder scars associated with right shoulder surgeries and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. REASONS FOR REMAND Left Knee Disability The Board finds that further development is necessary regarding the Veteran’s claim of service connection for a left knee disability. First, the Board has reviewed the Veteran’s service treatment records (STRs) and finds evidence of an in-service left knee injury. In July 1997, the Veteran reported a left knee injury that occurred five days prior, that still caused pain, and that caused a knot to develop on his knee. Further, the Veteran’s VA treatment records indicate a left knee disability requiring arthroscopy and partial medial meniscectomy in April 2012. In April 2013, the Veteran underwent and in-person VA examination with claims file review regarding his left knee disability. The examiner diagnosed left knee degenerative joint disease. The examiner noted that the Veteran experienced a left knee injury during service. The examiner also noted that the Veteran reported increased pain and decreased range of motion that recently lead to left knee surgery in April 2012. The examiner opined that it is less likely than not that the Veteran’s left knee disability was incurred in or caused by service. In the rationale, the examiner stated that although the STRs document a left knee injury, no follow up visits or complaints are contained in the records. The examiner further stated that the Veteran’s left knee disability is more likely than not age related and not caused by soft tissue injury. Next, in the VA Form 9 submitted in September 2016, the Veteran stated that he has been consistently suffering continuing left knee symptoms since the in-service left knee injury and has required consistent treatment for his left knee symptoms. The Board notes that this evidence regarding continuing left knee symptoms since the in-service injury was not discussed in the April 2013 VA examination. Therefore, as the April 2013 VA examination did not properly address evidence of continuing symptoms since service, the Board finds the April 2013 VA examination to be inadequate. When VA obtains an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the matter must be remanded for a new examination. Depression The Board finds that further development is necessary regarding the Veteran’s claim of service connection for depression. The Board acknowledges that the Veteran is claiming service connection for depression. During the course of this appeal, his psychiatric symptoms have also been diagnosed as an adjustment disorder, insomnia, anxiety, PTSD, and borderline personality disorder. A service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder; rather, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Further, the Board notes that personality disorders, including borderline personality disorder, are not considered diseases or injuries for which service connection may be granted, 38 C.F.R. §§ 3.303 (c), 4.9, 4.127, but service connection may be granted for an additional disability superimposed on top of a personality disorder resulting from a disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990). Thus, the Board has recharacterized the Veteran’s claim as service connection for any acquired psychiatric disorder, to include depression, an adjustment disorder, insomnia, anxiety, and PTSD. Next, the Veteran underwent a psychiatric VA examination in April 2013 regarding his claim of service connection for depression. The examiner diagnosed the Veteran with insomnia but did not opine as to whether the Veteran’s insomnia was incurred in or caused by service. The examiner only noted that the Veteran did not have a diagnosis of depression to support his claim of service connection for depression. As noted above, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Therefore, as the examiner failed to address whether the Veteran’s diagnosed insomnia was incurred in or caused by service, the Board finds the April 2013 VA examination to be inadequate. When VA obtains an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the matter must be remanded for a new examination. Further, the Veteran underwent a second psychiatric VA examination in August 2016 regarding his claim of service connection for depression. The examiner diagnosed borderline personality disorder. The examiner did not address the Veteran’s previous diagnoses of insomnia or adjustment disorder. Additionally, although the Veteran’s VA treatment records indicate a diagnosis and treatment for PTSD, the examiner did not address the criteria for PTSD with the Veteran during the examination. Further, the examiner noted that the Veteran experienced symptoms of anxiety and depressed mood related to his diagnosis of borderline personality disorder; however, the examiner failed to opine as to whether anxiety and depression disabilities are superimposed on the Veteran’s borderline personality disorder. Rather, the examiner merely stated that the issue could not be answered as the Veteran presented contradictory information in his history. For these reasons, the Board finds the August 2016 VA examination to be inadequate. When VA obtains an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the matter must be remanded for a new examination. The matters are REMANDED for the following action: 1. Obtain all treatment records from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment. 2. Following the completion of the above, schedule the Veteran for an examination to determine the nature and etiology of his left knee disability. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Elicit a history from the Veteran regarding continuing left knee disability symptoms since the time of the in-service left knee injury to the present. b. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability had its onset during service or is otherwise related to service? The examiner should consider the in-service left knee injury and the Veteran’s statements regarding continuing left knee disability symptoms since the in-service left knee injury to the present. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder, to include depression, an adjustment disorder, insomnia, anxiety, and PTSD. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. The examiner should identify all current psychiatric disorders found on examination, including depression, an adjustment disorder, insomnia, anxiety, PTSD, and borderline personality disorder. For each diagnosis, the examiner should clearly explain how the diagnostic criteria have been met under the DSM-5. b. If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. c. For any diagnosed psychiatric disorder, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during, or is otherwise related to, the Veteran’s period of service? The examiner should also address whether any acquired psychiatric disorder is superimposed on a diagnosed personality disorder. d. If PTSD is diagnosed, the examiner should address whether the diagnosis is at least as likely as not (50 percent or greater probability) related to any corroborable in-service stressor, including a fear of hostile military or terrorist activity? The examiner should consider the evidence contained in Veteran’s lay statements regarding witnessing traumatic events during service, including the deaths by suicide of two fellow soldiers. The examiner should also consider all lay statements submitted by the Veteran regarding his disorder. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, Associate 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.