Citation Nr: 21001834 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 10-22 907A DATE: January 12, 2021 ORDER Entitlement to a rating of 50 percent, but no more, for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) for the period from February 6, 2007 to July 18, 2009 is granted. Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for a left shoulder condition is denied. FINDINGS OF FACT 1. From February 6, 2007 to July 18, 2009, the severity, frequency, and duration of the Veteran’s symptoms most closely approximated occupational and social impairment with reduced reliability and productivity due to symptoms contemplated by the criteria for a 50 percent evaluation. 2. The competent medical evidence does not demonstrate that the Veteran’s bilateral shoulder condition was incurred in service or is otherwise attributable to his service, to include as due to any injuries he may have suffered when he was struck by a motor vehicle in service. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent, but no more, for PTSD with TBI have been met from February 6, 2007 to July 18, 2009. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.130, Diagnostic Code 9411. 2. Service connection for a bilateral shoulder condition is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issues of entitlement to an increased staged rating for PTSD with TBI for the period from February 6, 2007 to July 18, 2009 as well entitlement to service connection for a bilateral shoulder condition were denied in a July 2018 Board decision. The Veteran thereafter appealed those denials to the U.S. Court of Appeals for Veterans Claims (Court), which issued a May 2020 Joint Motion vacating the denial of these two specific issues and remanding both issues back to the Board for readjudication pursuant to the Court’s instructions. The Board notes that there are three additional groupings of claims that have been certified to the Board for its adjudication which will not be addressed in this particular decision. Specifically, the Board highlights that it remanded claims of entitlement to service connection for laryngitis, asthma, and obstructive sleep apnea in November 2019. Following a December 2020 supplemental statement of the case that continued denials for those issues, it is unclear whether the Veteran has received notification of recertification of those claims to the Board, given recent mail delays, and the Board will thus proceed with the Court claims and allow the Veteran a full opportunity to respond before proceeding to the other claims. In addition, entitlement to an earlier effective date for the grant of service connection for hyposmia, dermatitis, painful scars on the left orbit and painful scars below the left eye, as well as entitlement to service connection for cervical radiculopathy of the right and left upper extremity, have been certified to the Board but are currently scheduled for videoconference hearings before Veterans Law Judges; therefore, the Board also will not decide those claims in this decision. The Board notes that any possible claim for TDIU is moot, as the Veteran is already in receipt of a 100 percent disability rating for the entirety of the appeal period. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Furthermore, the Veteran is already in receipt of special monthly compensation at the (s) rate for the entire appeal period from July 18, 2009 on account of his having a 100 percent rating for a single disability and additional service-connected disabilities independently ratable at 60 percent or more. Bradley v. Peake, 22 Vet. App. 280 (2008). Prior to that date, the Veteran is not in receipt of a single 100 percent rating for any of his service-connected disabilities and so entitlement to special monthly compensation on these grounds is not at issue. Entitlement to an Increased Rating for PTSD with TBI prior to July 18, 2009 The Veteran is currently in receipt of a 30 percent rating for PTSD with TBI effective February 6, 2007, with a complete 100 percent rating effective July 18, 2009. He seeks a rating in excess of that 30 percent for the entire period prior to July 18, 2009. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The rating at issue was assigned pursuant to the General Rating Formula for Mental Disorders as outlined in 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that General Rating Formula, a rating of 30 percent is warranted if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional 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); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5). When determining the appropriate disability rating to assign for psychiatric disabilities, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126. In evaluating the propriety of the 30 percent rating for the period prior to July 18, 2009, the Board notes the relative paucity of available medical evidence reflecting the degree of severity of the Veteran’s PTSD with TBI symptomatology during this time period. In its July 2018 decision which granted a 100 percent rating effective July 18, 2009, the Board referred to a VA outpatient record that indicated the Veteran was experiencing paranoid delusions, poor insight and judgment, and executive function consistent with psychosis from that date. Prior to July 18, 2009, the Board highlights that on an August 2008 outpatient note the Veteran did report a history of seeing hallucinatory flashes, and also detailed some degree of paranoia associated with a former superior officer from when he was in service; however, that same outpatient treatment as well as a follow-up evaluation later in the month show that the Veteran exhibited clear and coherent speech, a euthymic mood, and no delusions or suicidal or homicidal ideation. Moreover, a June 2009 VA outpatient record similarly revealed no delusions, suicidal ideation or homicidal ideation as well as normal speech, clear sensorium/concentration and an angry/tense mood with appropriate affect. As outlined in its Joint Motion, the Court noted additional evidence not considered by the Board which potentially supported a rating in excess of 30 percent prior to July 18, 2009. Specifically, the Court highlighted a July 2008 VA primary care note which showed that the Veteran had “severe depression”. In addition, the Court noted that a private psychologist in November 2017 indicated in a correspondence that the Veteran had been diagnosed with severe difficulties with anxiety and depression since October 2000. During the January 2018 hearing, the Veteran detailed that he had been experiencing symptoms of hypervigilance, lack of socialization, anxiety, depression and anger for the entirety of the appeal period. He also asserted that he was unable to maintain his prior employment as a sales manager due to his PTSD symptomatology. Upon consideration of the available evidence pertaining to the period of time prior to July 18, 2009, the Board agrees that an increased rating of 50 percent is warranted for the entire appeal period from February 6, 2007 to July 18, 2009. The Veteran’s initial intake evaluations for his mental health through VA dating from July and August 2008 reflect severe depression, panic attacks, anger issues, sleeping difficulties, memory impairment, and psychotic symptoms, to specifically include flashbacks to a traumatic incident that occurred in service. This symptomatology is commensurate with many of the indicia contemplated by the 50 percent rating, and certainly contributed to the Veteran’s difficulty in establishing and maintaining effective work and social relationships, as evidence by his inability to continue working beyond 2005. That being said, prior to the July 18, 2009 outpatient record identified by the Board in its prior decision, the Veteran largely denied any history of experiencing many of the symptoms that characterize the higher 70 percent rating. Specifically, the Board notes that he had not exhibited suicidal or homicidal ideation, neglect of personal appearance and hygiene, or poor insight, all of which were additional symptoms newly noted during the July 18, 2009 evaluation. Furthermore, although the Veteran did report a history of some hallucinatory experiences as well as paranoid thoughts about a former superior officer during his initial intake in August 2008, his affect and judgment did not appear to be impacted significantly prior to July 18, 2009 as reflected by repeated evaluations by VA physicians. In summary, the Veteran’s symptomatology prior to July 18, 2009 was most consistent in terms of severity, frequency, and duration to the criteria for the 50 percent rating. As such, the Board finds that a rating of 50 percent, but no more, for PTSD with TBI is warranted for the period prior to July 18, 2009. Entitlement to Service Connection for a Bilateral Shoulder Condition The Veteran contends that he injured his bilateral shoulders when he was hit by a motor vehicle during service. He asserts that he either developed a bilateral shoulder condition in service that has continued to the present or that a bilateral shoulder condition manifested after service but is nevertheless attributable to these in-service injuries. He seeks service connection for the condition on either basis. The question for the Board is whether the Veteran has a diagnosable bilateral shoulder condition that began during service or is at least as likely as not related to an in-service injury, event, or disease. As detailed above, the Board previously denied this claim in its July 2018 decision, finding that the preponderance of the evidence was against a finding that the Veteran either incurred a bilateral shoulder condition in service or that there was a nexus between the Veteran’s service and his later development of a bilateral shoulder condition. The Court then remanded this case back to the Board for it to further review the evidence and provide a more thorough rationale for its conclusions. After reviewing the evidence once again, and taking into consideration the Court’s objections, the Board confirms its prior conclusion that the preponderance of the evidence is against a finding that a bilateral shoulder condition began during active service, or is otherwise related to an in-service injury, event, or disease, to include injuries sustained when the Veteran was struck by a motor vehicle. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service medical records do not reveal that the Veteran underwent any specific treatment for bilateral shoulder symptomatology. Medical records do document the Veteran’s course of treatment following the June 1963 incident in which he was struck by a motor vehicle, but none of those records document that the Veteran was ever evaluated for or diagnosed with a bilateral shoulder condition despite receiving treatment for numerous other injuries related to the same incident. No upper extremity abnormalities were noted on the June 1964 separation examination, and the Veteran denied any history of shoulder problems on the corresponding June 1964 Report of Medical History. Post-service, the first available record which documents the Veteran’s treatment for shoulder symptomatology are therapy notes dating from 2002 which show that the Veteran began treatment with a Dr. A.Y. for complaints of right shoulder pain. Subsequently, a post-surgical report dating from August 2003 indicates that the Veteran underwent right shoulder surgery. The post-operative diagnosis was right shoulder glenohumeral arthritis with loose body, subacromial impingement, and acromioclavicular (AC) arthritis. Thereafter, a May 2008 post-surgical report indicates that the Veteran underwent left shoulder surgery, with a mirrored post-operative diagnosis of left shoulder glenohumeral arthritis with loose body, subacromial impingement, and AC arthritis. A February 2008 outpatient note shows that the Veteran reported that his left shoulder pain began in 1963. There are no more contemporary private medical records reflecting treatment for a bilateral shoulder condition; however, VA records beginning in 2009 show continued treatment for bilateral shoulder pain. A July 2009 outpatient note reflects that testing results suggested degenerative joint disease as a possible explanation for the bilateral shoulder pain. An April 2010 outpatient note shows that the Veteran was evaluated as experiencing pain far out of proportion with objective markers of impairment, as an MRI examination revealed essentially no significant abnormalities other than those consistent with postsurgical changes. The most recent available medical record showing treatment for the bilateral shoulders reflects that the Veteran was diagnosed with adhesive capsulitis bilaterally in June 2019. The Board notes the presence of an October 2006 correspondence from a Dr. R.H. in which he asserted that he began treating the Veteran in October 1964 after his discharge from service. According to Dr. R.H., he continued to serve as the Veteran’s physician until 1975. During that time, he noted a number of musculoskeletal conditions that he attributed to the June 1963 motor vehicle accident; however, his correspondence does not mention a bilateral shoulder condition, and there is no indication that the Veteran was ever treated for bilateral shoulder symptomatology by Dr. R.H. The Veteran has submitted an evaluation report from his private treating physician, a Dr. A.R., which is dated in November 2006. After a review of a number of medical records, to include the Veteran’s military records, Dr. A.R. confirmed the Veteran’s history of treatment for his right shoulder, to include numerous surgeries, and asserted that it was more likely than not that the right shoulder condition was attributable to the Veteran’s injuries sustained when he was struck by a motor vehicle in service in June 1963. In support thereof, the examiner referred to the Veteran’s history of treatment for right shoulder conditions including glenohumeral arthritis, subacromial impingement, and AC joint arthritis. The examiner also asserted that the Veteran injured his right shoulder as a result of the June 1963 incident, but referred to no evidence for this assertion. The Veteran was first afforded a VA shoulder examination to evaluate the nature and likely etiology of the claimed bilateral shoulder conditions in March 2008, during which he asserted that he had bilateral shoulder symptomatology that was attributable to the in-service incident when he was struck by a motor vehicle. A review of the claims file revealed that the Veteran underwent right shoulder surgery in August 2003. After an in-person evaluation, which included a negative right shoulder X-ray examination, and during which the examiner noted that the Veteran presented with a significantly exaggerated pain response, the examiner declined to set forth any diagnoses for either the right or left shoulder condition other than to note the removal of the clavicle of the right shoulder. Nevertheless, the examiner still opined that any diagnosable bilateral shoulder condition was less likely than not attributable to service, to include the June 1963 motor vehicle accident. In support thereof, the examiner noted the lack of any in-service treatment for bilateral shoulder symptomatology, especially in the treatment notes that pertained to the June 1963 injury. Furthermore, the examiner highlighted that the first documentation of treatment for a right shoulder condition was from August 2003, nearly 40 years after the Veteran’s discharge. This opinion is highly probative, as it is based on an extremely thorough review of the claims file and a reference to the Veteran’s documented medical history. Sklar v. Brown, 5 Vet. App. 140 (1993). The Veteran was next afforded a VA shoulder examination to evaluate the nature and likely etiology of the claimed bilateral shoulder condition in September 2015, during which he detailed that he was diagnosed with bilateral shoulder arthritis with impingement and torn rotator cuff by a private physician in 1999 and underwent surgery on both shoulders that same year. The Veteran also reiterated his contention that his bilateral shoulder symptomatology was attributable to the in-service incident when he was struck by a motor vehicle. After an in-person evaluation and a review of the claims file, to include X-ray examinations of both shoulders, the examiner confirmed diagnoses of bilateral shoulder arthritis with impingement syndrome. The September 2015 examiner then opined that it was less likely than not that the bilateral shoulder condition was incurred in or otherwise attributable to service. In support thereof, the examiner noted the lack of any in-service treatment for bilateral shoulder symptomatology, especially in the treatment notes that pertained to the June 1963 injury. Furthermore, the examiner highlighted that the first documentation of treatment for a right shoulder condition was from August 2003, nearly 40 years after the Veteran’s discharge. In setting forth this opinion, the September 2015 examiner explicitly noted that they considered Dr. A.R.’s November 2006 correspondence. The Board similarly finds this opinion to be highly probative, as it is based on a thorough review of the claims file and a reference to the Veteran’s documented medical history. Sklar, supra. The Board also reiterates that the September 2015 VA examiner considered Dr. A.R.’s correspondence and, while he did not explicitly address Dr. A.R.’s opinion, he did clearly provide an alternative interpretation of the available medical evidence which the Board finds very persuasive. During the January 2018 hearing, the Veteran asserted that his numerous claimed orthopedic and musculoskeletal conditions, to include the bilateral shoulder condition, were all attributable to the injuries he sustained as a result of being struck by a motor vehicle. The Board acknowledges that the Veteran has continually asserted that his bilateral shoulder condition began in service as a result of the injuries he suffered when he was struck by a motor vehicle and that the condition has continued since then. The Veteran is competent to testify as to when his symptoms began. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the fact that the claims file does not contain a diagnosis of a bilateral shoulder condition until 2002, nearly 40 years after the Veteran was discharged from service, is persuasive evidence tending to demonstrate that there is no continuity of symptomatology after service. Moreover, the Veteran’s contentions must be considered in light of the objective medical evidence of record to better establish the likelihood of their being a nexus between the Veteran’s service and his currently diagnosed bilateral shoulder condition. Where, as here, there are conflicting medical opinions in the claims file, the Board is entitled to independently assess the opinions and make a determination as to relative weight to assign to each opinion. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). If the Board finds that a private opinion is less persuasive than an opinion offered by a VA medical examiner, it may attribute more probative weight to the VA medical examiner’s opinion, so long as that determination is supported by an adequate statement of reasons or bases for doing so. D’Aires v. Peake, 22 Vet. App. 97 (2008). In comparing the two VA examiner opinions of record to Dr. A.R.’s correspondence, the Board is struck by the lack of discussion on the part of Dr. A.R. regarding the Veteran’s in-service medical history. While both VA examiners highlighted the fact that the Veteran did not complain of or receive treatment for shoulder symptomatology in service, Dr. A.R. did not discuss this lack of evidence at all. Indeed, Dr. A.R. provided no rationale whatsoever for his conclusion that the Veteran sustained bilateral shoulder injuries as a result of the June 1963 motor vehicle accident. This failure to provide an explanation for his conclusion greatly diminishes the probative value of his opinion, especially in light of the fact that the objective evidence of record does not support Dr. A.R.’s finding that the Veteran injured his bilateral shoulders in service. As such, the Board finds the two VA examiner opinions to be far more probative then Dr. A.R.’s correspondence. Ultimately, the absence of objective medical evidence documenting any treatment for or a diagnosis of a bilateral shoulder condition prior to 2002 coupled with the probative VA examiner opinions far outweighs the Veteran’s assertion that his bilateral shoulder condition began in service and that his symptoms have continued since his discharge from service, even if the Veteran’s contentions are supported nominally by Dr. A.R.’s correspondence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As such, the preponderance of the evidence is against the claim of service connection for a bilateral shoulder condition on either a direct basis under 38 C.F.R. § 3.303(a) or based on continuity of symptomatology under 38 C.F.R. § 3.303(b). The Veteran may still be entitled to service connection for a bilateral shoulder condition if all of the evidence establishes that the condition is otherwise attributable to an in-service occurrence. 38 C.F.R. § 3.303(d). As stated above, however, the weight of the objective medical evidence of record is against such a determination, as the opinions of both VA examiners are supported by the weight of the evidence which shows that the Veteran was never evaluated as having a bilateral shoulder condition in service and did not seek treatment for shoulder pain until 2002. Furthermore, the Board notes that there is no evidence in the record showing that the Veteran has the medical training, credentials, or other expertise to competently conclude that his bilateral shoulder condition is attributable to service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). Ultimately, the Board finds that the two VA examiner opinions substantially outweigh the lay evidence of record as well as Dr. A.R.’s opinion, in light of the rationale presented and the absence of training or credentials on the part of the Veteran. Therefore, the preponderance of the evidence is against the claims for service connection for a bilateral shoulder condition, the benefit-of-the-doubt standard of proof does not apply, and the claims are denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.