Citation Nr: 21000581 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-37 229 DATE: January 5, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for residuals of a traumatic brain injury (TBI) is denied. An initial compensable rating for left shoulder scars is denied. Prior to November 14, 2011, a rating higher than 30 percent for a left shoulder rotator cuff disability is denied. From November 14, 2011, to December 5, 2012, a rating higher than 20 percent for a left shoulder rotator cuff disability is denied. From July 1, 2013, to December 6, 2013, a 100 percent rating for a left shoulder rotator cuff disability is granted. From December 7, 2013, a 50 percent rating for a left shoulder rotator cuff disability is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that PTSD began during active service or is otherwise related to an in-service injury or disease. 2. Organic brain disorder is not secondary to service-connected left ear otitis media and is not otherwise related to an in-service injury or disease. 3. The Veteran’s left shoulder scars measure 21 cm. by .1 cm, 8.5 cm. by .4 cm., 1 cm., 1 cm., and .5 cm., and are not painful or unstable. 4. Prior to November 14, 2011, the Veteran’s left rotator cuff disability was not manifested by impairment of the humerus, clavicle or scapula. 5. From November 14, 2011, to December 5, 2012, the Veteran’s left rotator cuff disability did not limit motion of the arm to just 25 degrees from the side. 6. The Veteran underwent a left Copeland arthroplasty on December 6, 2012. 7. From December 7, 2013, the Veteran’s left shoulder, status post arthroplasty, was manifested by chronic residual painful motion and weakness. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for an initial compensable disability rating for left shoulder scars are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. 4. Prior to November 14, 2011, the criteria for a rating higher than 30 percent for a left shoulder rotator cuff disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5201. 5. From November 14, 2011, to December 5, 2012, the criteria a rating higher than 20 percent for a left shoulder rotator cuff disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5201. 6. From July 1, 2013, to December 6, 2013, the criteria for a 100 percent rating for a left shoulder rotator cuff disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5051. 7. From December 7, 2013, the criteria for a 50 percent rating for a left shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5051. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from March 1976 to April 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2009 and July 2010 rating decisions. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2010. The matter was then remanded for additional development in October 2011, November 2016 and February 2019. Duty to Assist As a preliminary matter, the Board previously remanded this matter for additional development in February 2019. This development included requesting records of any 1976 inpatient hospitalization in Stuttgart, Germany; requesting relevant records from the Director of the Army Crime Records Center; and requesting any relevant records from the VA medical center in Baltimore, Maryland. This development was substantially completed as outlined in an October 2020 letter to the Veteran. To the extent that the development was not fully completed as it relates to his claims for service connection, the Board finds that further development is not required. As discussed below, the Veteran’s assertions regarding his service connection claims are not credible, and further development based on those assertions is not warranted. In addition, the Board’s remand included providing the Veteran with VA examinations for his PTSD and TBI claims. Those examinations were scheduled in January 2020 and February 2020, respectively. However, the record shows that the Veteran failed to appear for either examination, which was noted in an October 2020 supplemental statement of the case. To date, the Veteran has not shown good cause for missing these examinations and has not otherwise requested that they be rescheduled. Therefore, the Board will proceed with deciding these claims. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). PTSD Residuals of a TBI Because the facts surrounding these two claims are intertwined, the Board will discuss them together. Although there is evidence from the appeal period which both supports and refutes a current PTSD diagnosis, the Board previously determined that a current disability exists for the purposes of this claim. Similarly, the Veteran’s August 2016 VA records show a diagnosis of organic brain disorder and headaches. Therefore, current disabilities have been established for both claims. The Veteran relates his PTSD and TBI to various incidents from service. During an October 1982 VA examination, he reported being hit in the head by some wood after an explosion in 1977. In a February 2009 statement, he reported being close to a tank cannon when it discharged, which resulted in him being in a coma for three months. In subsequent statements from June 2009 and March 2011, he stated that he had no memory of this incident, but that it was told to him by various military personnel after he regained consciousness. In his August 2010 hearing testimony, he reported sustaining a TBI from an explosion in 1976 and being told it was “several days” later when he awoke. He also described being physically assaulted in service by other Army personnel, including being run over with a jeep. In August 2016 VA treatment records, the Veteran stated that he was in a coma as a result of the assault. The Veteran is presently service-connected for left ear otitis media with mastoidectomy. Although he relates this disability to the tank cannon which discharged close to him, service treatment records show his otitis media was due to pan-antibiotic sensitive staphylococcus aureus, complicated by acute mastoiditis and tympanic membrane rupture. There is no documentation that he was close to a discharged tank cannon, assaulted in service, sustained any head injury, or was ever in a coma. His January 1982 separation examination was normal, and he denied any depression, memory loss, nervous trouble, periods of unconsciousness, or head injuries on the accompanying medical history report. VA examinations in June 2013 noted the Veteran’s different accounts in service, including how he characterized his ear condition as a “head injury.” His various reports of blast exposures, being physically assaulted (to the point of attempted murder), being hit with a flying piece of wood, and being hit with a gun (post-service), all had a dramatic flair. The examiner also noted that the Veteran himself reported that some of these incidents were told to him by other people, and that he acknowledged significant substance abuse beginning at age 11 and continuing during military service. The examiner stated that the ability of these substances to alter the understanding and accurate recall of events is a fundamental characteristic of them and unquestionably results in additional distortion of the recall of events over time. Notably, VA treatment records from January 2005 document the Veteran’s substance abuse history, which includes alcohol, cannibis, cocaine and amphetamines. The VA examiner also noted that the lack of any cranial structural abnormalities on imaging supported a finding of the Veteran’s substance abuse as the etiology of his cognitive difficulties. Moreover, to the extent that the Veteran contends he was assaulted in service, his available personnel records, including his performance evaluations, do not indicate any deviations in performance that might signify an assault, let alone an assault of the severity alleged by the Veteran. Notably, the Veteran had another documented head injury in July 2006 from a work-related fall. He was hospitalized at the time, and experienced headaches and spells of altered consciousness starting two weeks after his discharge. As stated in December 2008 VA treatment records, the Veteran’s organic brain disorder was likely due to his history of polysubstance abuse and a TBI. Although the treating physician was only aware of the in-service TBI reported by the Veteran, the diagnosis is also consistent with the July 2006 head injury. In sum, the Veteran’s statements are both internally inconsistent and inconsistent with the contemporaneous service records. In addition, the competent medical evidence documents a history of substance abuse and a post-service head injury and explains how the substance abuse likely affected the Veteran’s recall of events. Therefore, the overall weight of the evidence is against a finding that the Veteran was exposed to a tank cannon discharge, assaulted by his peers, or sustained any other head injury in service. Therefore, direct service connection for PTSD or a TBI is not warranted. The Board has also considered whether the Veteran has a TBI or organic brain disorder secondary to his service-connected left ear condition. However, as stated by the June 2013 VA examiner, the ear condition is an extra-cranial process separated from the brain by the skull. Therefore, the overall weight of the evidence is against a finding of secondary service connection. Finally, as discussed above, because the Veteran did not appear for his January 2020 and February 2020 VA examinations, any further clarifying opinions regarding the nature or etiology of the claimed conditions could not be obtained. Increased Ratings Left shoulder scars The Veteran’s left shoulder scars are currently rated at 0 percent under 38 C.F.R. § 4.118, DC 7805, which is a general code for scars and provides that any disabling effects not otherwise considered in ratings under DCs 7800-7804 are to be separately rated. DC 7800 addresses scars of the head, face or neck. DC 7801 addresses scars which are deep and nonlinear and affect an area of at least 6 square inches (39 square cm.). DC 7802 addresses scars affecting an area greater than 144 square inches (929 square cm.). DC 7804 addresses scars that are unstable or painful. None of the above diagnostic codes are applicable to the Veteran’s scars. VA examinations from June 2013, June 2014 and April 2018 all document linear shoulder scars which are not painful, deep or unstable. There is no competent medical evidence to the contrary, and an initial compensable rating is not warranted. Left shoulder rotator cuff disability prior to November 14, 2011 The Veteran’s left shoulder is his non-dominant extremity and is therefore considered the “minor” extremity for rating purposes. He was assigned temporary 100 percent ratings for surgical convalescence from April 30, 2010 to October 31, 2010, and from April 7, 2011 to October 31, 2011. Otherwise, prior to November 14, 2011, the Veteran was assigned a 30 percent rating for his left shoulder under 38 C.F.R. § 4.71a, DC 5201. Under this code, limitation of motion of the arm at shoulder level or midway between side and shoulder warrants a 20 percent rating for the minor extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor extremity. 38 C.F.R. § 4.71a, DC 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). During this period, the Veteran is assigned the maximum schedular rating for limitation of motion of the arm. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. He has not been diagnosed with any impairment of the humerus (DC 5202) or clavicle/scapula (DC 5203). As discussed below, the Veteran is entitled to higher ratings under DC 5051 based on left shoulder replacement surgery that took place in December 2012. While he previously underwent surgeries in April 2010 and April 2011, those surgeries were arthroscopies, not arthroplasties (shoulder replacements), and therefore a rating under DC 5051 is not appropriate for those surgeries. Left shoulder rotator cuff disability from November 14, 2011 to December 5, 2012 During this period, the Veteran is assigned a 20 percent rating under DC 5201. As discussed above, a higher 30 percent rating is assigned when motion of the minor arm is limited to 25 degrees from side. A November 2011 VA examination documented flexion of 100 degrees and abduction of 110 degrees, with the onset of pain at both of those points. With repetition, flexion was 90 degrees and abduction was 100 degrees. Private records from August 2012 document active elevation of the arm to 120 degrees and abduction of 110 degrees. An October 2012 VA examination documented flexion of 90 degrees and abduction of 65 degrees, unchanged with repetitive testing. Additional private records from November 2012 noted active elevation of 120 degrees. Based on these findings, a higher 30 percent rating is not warranted because range of motion of the left arm was not limited to just 25 degrees in either flexion or abduction. In making this determination, the Board acknowledges that the Veteran reported flare-ups during his November 2011 and October 2012 VA examinations. These flare-ups were due to several factors. The first was abduction of the arm, which was tested repeatedly. The second was cold weather, and both VA examinations occurred during colder months (October and November). The Veteran also reported flare-ups due to “moving the arm the wrong way” and reaching above shoulder level, and arm motion was again repeatedly tested. Therefore, the VA examinations adequately assessed the Veteran’s condition during flare-ups.   Left shoulder rotator cuff from July 1, 2013, to December 6, 2013 The Veteran was assigned a 100 percent rating for his left shoulder from December 6, 2012, after he underwent a Copeland arthroplasty. This 100 percent rating is currently effective through June 30, 2013. Under 38 C.F.R. § 4.71a, DC 5051, a 100 percent rating is assigned for one year following implantation of the prosthesis. Therefore, a 100 percent rating is awarded through December 6, 2013, the one-year period from the date of his surgery. Left shoulder rotator cuff from December 7, 2013 DC 5051 further provides that when shoulder replacement results in chronic residuals of painful motion or weakness in the minor extremity, a 50 percent rating is warranted. A VA examiner made that exact finding in June 2014. A subsequent VA examination in April 2018 also noted painful motion, along with slightly reduced strength and some muscle atrophy. Therefore, a 50 percent rating under DC 5051 is appropriate. A higher 70 percent rating is assigned under DC 5202 when there is a loss of the head of the humerus (flail shoulder). However, there is no competent evidence of this manifestation, and no other basis upon which a higher rating can be assigned. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.