Citation Nr: 21003040 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-07 547 DATE: January 19, 2021 ORDER An initial rating in excess of 40 percent prior to December 16, 2019, and in excess of 20 percent thereafter for service-connected right shoulder disability is denied. An initial compensable rating for service-connected surgical scars of the right shoulder is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. (The issues of: (1) entitlement to a rating in excess of 40 percent for left lower extremity radiculopathy of the sciatic nerve associated with service-connected lumbar strain with degenerative disc disease (DDD); and, (2) entitlement to special monthly compensation (SMC) for loss of use of the foot, are addressed in a separate decision.) FINDINGS OF FACT 1. Prior to December 16, 2019, the Veteran’s right shoulder disability was manifested by limitation of motion of the arm to 25 degrees from side. 2. From December 16, 2019, the Veteran’s right shoulder disability has been manifested by pain only. 3. The Veteran has scars associated with his service-connected right shoulder disability; however, he does not have at least one scar that is painful or unstable, and his scars are also not deep and nonlinear covering an area of at least 6 square inches but less than 12 square inches. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 40 percent prior to December 16, 2019, and in excess of 20 percent thereafter for service-connected right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 4.1, 4.3, 4.59 4.7, 4.10, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to an initial compensable disability rating for service-connected surgical scars of the right shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to November 1991. In August 2019, the Board of Veterans’ Appeals (Board) denied entitlement to a rating in excess of 40 percent for service-connected left lower extremity radiculopathy of the sciatic nerve associated with service-connected lumbar strain with DDD and remanded the issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and a rating in excess of 40 percent for service-connected right shoulder disability for additional development. See August 2019 Board decision. Following the further development directed in the August 2019 Board remand, the Regional Office (RO) issued a July 2020 rating decision which granted service connection for surgical scars of the right shoulder and assigned a noncompensable disability rating, effective February 20, 2018. The rating decision also reduced the Veteran’s evaluation of the right shoulder train, impingement syndrome, bicipital tendonitis, rotator cuff tendonitis and status post labral tear, including SLAP (dominant) from 40 percent disability to 20 percent disability, effective December 16, 2019. See July 2020 rating decision. In October 2020, the Veteran submitted a VA Form 21-22a appointing a private attorney as her representative; however, the representation is limited to the issue of entitlement to an increased rating for her left lower extremity radiculopathy of the sciatic nerve. Accordingly, that issue along with its ancillary issue of entitlement to SMC for loss of use of the foot, is addressed in a separate decision. For the issues addressed in this decision, the Veteran’s representation continues with the California Department of Veterans Affairs. See November 2013 VA Form 21-22. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. 1. Entitlement to an initial rating in excess of 40 percent prior to December 16, 2019, and in excess of 20 percent thereafter for service-connected right shoulder disability; and entitlement to an initial compensable disability rating for surgical scars of the right shoulder By way of history, service connection was granted for the Veteran’s right shoulder disability in a May 2018 rating decision and assigned a 40 percent disability rating, effective February 20, 2018. The Veteran disagreed with the initial rating assigned. Thereafter, in a July 2020 rating decision, the rating for the right shoulder disability was reduced from 40 percent to 20 percent, effective December 16, 2019. The July 2020 rating decision explained that notice of a proposed rating reduction was not needed because the Veteran’s combined evaluation was not reduced. The Veteran’s right shoulder disability is rated under Diagnostic Code 5201. As VA examination reports of record show that the Veteran is right-handed, his right shoulder is the major extremity. Diagnostic Code 5201 evaluates limitation of motion of the arm and provides a 20 percent rating for limitation at the shoulder level and a 30 percent rating for limitation to midway between the side and shoulder level for the major extremity. For the major shoulder, a maximum disability rating of 40 percent rating is provided where limitation is to 25 degrees from the side. Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I. 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). The fact that Plate I in 38 C.F.R. § 4.71 shows how to measure motion of the shoulder joint in both flexion and abduction planes merely demonstrates that limitation of motion in either plane may establish a compensable disability rating under Diagnostic Code 5201. Id. at 1359 (citing Mariano v. Principi, 17 Vet. App. 305, 317 (2003)). In addition, 38 C.F.R. § 4.59 reflects the rating schedule’s intent to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Generally, because a claim for an increased rating will be presumed to be for the maximum available benefit allowed by law, a claim remains in controversy when less than the maximum available benefit has been awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issues currently before the Board are whether the rating reduction was warranted and whether the Veteran is otherwise entitled to a higher rating for either period on appeal. 38 C.F.R. § 3.105(e) allows for a reduction in the evaluation of a service-connected disability when warranted by the evidence and, if applicable, certain procedural guidelines have been followed. 38 C.F.R. §§ 3.105(e), (i)(2)(i). There are procedural protections that apply to stabilized disability ratings that “have continued for long periods at the same level (5 years or more).” 38 C.F.R. § 3.344(c). The use of parentheses in 38 C.F.R. § 3.344(c) suggests that the five- year time frame is a guideline, not a mandatory minimum time period. See Lehman v. Derwinski, 1 Vet. App. 339 (1991). At the time of the July 2020 rating decision, the Veteran’s 40 percent evaluation for the right shoulder had been in effect from February 20, 2018, or approximately two years and four months. Several regulations apply to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. VA rating reductions, as with all VA rating decisions, must be based upon review of the entire history of a veteran’s disability. See Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction is not proper unless a veteran’s disability shows actual improvement in the ability to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014). The evidence must reflect an actual change in the condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must be determined that any such improvement also reflects an improvement in a veteran’s ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 3.344(c), 4.2, 4.10. In a rating reduction case, VA has the burden to establish that the disability has improved. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The Board must focus on the evidence available to the RO at the time the reduction was made, although post-reduction medical evidence may be considered in the context of evaluating whether the disability actually improved. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In this case, while the July 2020 rating decision did not specifically discuss, the evidence establishes an improvement in the Veteran’s right shoulder disability under the ordinary conditions of daily life and work. Therefore, for the following reasons, the reduction in the Veteran’s right shoulder disability from 40 percent to 20 percent, effective December 16, 2019, is warranted. The Veteran’s reduction in benefits was made based on findings reported in a VA examination conducted on December 16, 2019. Specifically, the Veteran reported that he had had a SLAP repair completed in 2017-2018 and had undergone physical therapy/occupational therapy and was currently doing a home-exercise program. He reported an improved status post-surgery. His current symptoms included mild discomfort with prolonged/sustained overhead movement. There were no private or VA treatment records to review. The Veteran did not report any flare-ups which would impact the function of his right shoulder, nor did he report having any functional loss or functional impairment of the joint or extremity. Range of motion testing was normal with pain exhibited with flexion and abduction. There was no evidence of pain with weight bearing or evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. There were no additional factors contributing to disability noted and muscle strength testing was normal. There was also no evidence of muscle atrophy or ankylosis. A rotator cuff condition was not suspected. Shoulder instability was suspected but there was no evidence of dislocation or labral pathology. The Veteran did not use an assistive device for ambulation and there was no functional impairment of the right shoulder to his current employment or ability to perform any type of occupational task. Lastly, there was no evidence of pain on non-weight bearing. The examiner concluded that because there was pain noted, a strain was the only diagnosis remaining along with the surgical repair that the Veteran had undergone. See December 2019 VA examination. Based on the evidence obtained during the December 2019 VA examination, including the lack of present treatment records for the disability or lay evidence to the contrary, it is clear the Veteran has experienced an actual improvement in the daily functioning of his right shoulder following his surgical repair. His only remaining symptom associated with his right shoulder disability as of the December 2019 VA examination was pain. 38 C.F.R. § 4.59. Accordingly, the reduction of the Veteran’s disability rating from 40 percent to 20 percent is supported by the evidence of record. The Board must next determine whether the Veteran is entitled to a rating in excess of 40 percent prior to December 16, 2019 (the date of his reduction). The Veteran underwent a VA examination for the right shoulder in March 2018. The examiner diagnosed right shoulder strain, right shoulder impingement syndrome, rotator cuff tendonitis and labral tear, including SLAP. Flare-ups of the right shoulder were described as increased stabbing and throbbing pain (9/10) in the right shoulder. The Veteran indicated he took over the counter pain medication and limited his right shoulder motion/movement until the pain subsided. He also reported functional loss including an inability to lift anything overhead, difficulty carrying, pushing and pulling. His right shoulder range of motion showed 0 to 5 degrees of flexion, abduction, extension rotation and internal rotation. However, range of motion itself did not contribute to functional loss. Pain was noted on the examination and was found to cause functional loss as well as evidence of pain with weight bearing and crepitus. There was also evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was unable to perform repetitive use testing with at least three repetitions due to severe pain. Factors including pain, fatigue, weakness, and lack of endurance all contributed to functional loss. Additional factors contributing to the disability included less movement than normal and weakened movement. Muscle strength testing also showed slightly diminished strength with 3/5 but there was no evidence of muscle atrophy. The right shoulder also tested positive for Hawkins’ Impingement Test, Empty-Can Test, External Rotation/Infraspinatus Strength Test and Lift-off Subscapularis test. Shoulder instability, dislocation, or labral pathology was suspected and there was a history of mechanical symptoms. The Veteran did not use an assistive device for ambulation, but functional impact was documented as difficulty with carrying, lifting, pushing and pulling. There was also objective evidence of pain on passive range of motion testing of the right shoulder as well as non-weight bearing testing. See March 2018 VA examination. Diagnostic Code 5201 provides a 40 percent disability rating, the maximum available, for limitation of motion of the major arm. In this case, the Veteran has reported he is right-hand dominant, hence the right shoulder represents the major extremity. As a result, a rating in excess of the currently assigned 40 percent disability rating under Diagnostic Code 5201, prior to December 16, 2019, is not available in this case. Diagnostic Code 5200 provides a 50 percent disability rating, the maximum available, for ankylosis of the major arm. Ankylosis is the complete immobility of a joint in a fixed position, either favorable or unfavorable. Lewis v. Derwinski, 3 Vet. App. 259 (1992); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint”). Review of the record prior to December 16, 2019 does not show that the Veteran’s right shoulder disability was manifested by ankylosis. As outlined above, although the Veteran demonstrated restricted movement in his right shoulder during the March 2018 VA examination, active range of motion findings for the disability were also documented. Moreover, the VA examiner also specifically documented no findings of ankylosis in the Veteran’s right shoulder. Therefore, a rating in excess of 40 percent is not warranted on this basis. The Board has also considered other potentially applicable Diagnostic Codes. See Schafrath, 1 Vet. App. at 589. In this case, the evidence does not reflect that there are any other musculoskeletal disorders of the shoulder such that the Veteran’s right shoulder disability would be more properly rated under another Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5201-5200. Accordingly, an increased evaluation under an alternate Diagnostic Code is not warranted. The Board does acknowledge that functional loss due to pain or painful motion was present during the appeal period. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Johnson v. Brown, 9 Vet. App. 7 (1996). However, given that the Veteran was already in receipt of the schedular maximum for limitation of motion of the shoulder prior to December 16, 2019, inquiry into the DeLuca factors is moot. Johnston v. Brown, 10 Vet. App. 80, 87 (1997). Finally, as previously discussed, the Veteran has been awarded service connection for scars secondary to his right shoulder disability; they have been assigned a noncompensable (0 percent) rating, effective from February 20, 2018, the date VA received his claim for service connection for a right shoulder condition. Diagnostic Codes 7800-7802, 7804, and 7805 pertain to the evaluation of scars. 38 C.F.R. § 4.118. Under Diagnostic Code 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. Id. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. Id. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. Id. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. VA is to consider unretouched color photographs when evaluating under these criteria. Id. at Note 3. Additionally, VA is to separately evaluate disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the evaluation(s) with the evaluation assigned under Diagnostic Code 7800. Id. at Note 4. Finally, the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics that are required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id. at Note 5. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted 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 skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable. Id. at Note 3. According to Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, VA is to evaluate any disabling effect(s) not considered in a rating provided under such Diagnostic Codes under an appropriate diagnostic code. 38 C.F.R. § 4.118. Here, while the March 2018 VA examination did not show evidence of scars, the December 2019 VA examination reported the Veteran had scars related to his right shoulder disability. There were three scars located on the right shoulder arthroscopic port sites, each measuring 1 centimeter in length and .5 centimeters in width. The scars were not found to be painful or unstable. See March 2018 VA examination and See December 2019 VA examination. Based on this evidence of record, there is no evidence revealing scars causing disfigurement of the head, face, or neck (Diagnostic Code 7800); scars other than the head, face, or neck that are deep or cause limited motion in an area exceeding 6 square inches or 39 sq. cm. (Diagnostic Code 7801); scars other than the head, face, or neck that are superficial, do not cause limited motion, and in an area exceeding 144 square inches or 929 cm. or greater (Diagnostic Code 7802); or superficial unstable scars with frequent loss of skin covering over the scar (Diagnostic Code 7803). In fact, the December 2019 VA examination found three visible scars, but none were painful or unstable. As such, the scars as secondary to service-connected disability of residuals of right shoulder disability are properly assigned noncompensable ratings. A higher, compensable rating is not warranted because the Veteran does not have scars that are unstable or painful. For the reasons stated above, the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s scars as secondary to service-connected right shoulder disability. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. As articulated in more detail in the August 2019 Board remand, the medical evidence of record prior to the Board remand reflected conflicting opinions regarding whether the Veteran suffered from a present diagnosis of PTSD under the DSM-5 criteria and whether his diagnosed major depressive disorder was incurred in or caused by his military service. Accordingly, the RO was directed to obtain another VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disability. In satisfaction of the August 2019 Board remand, the Veteran underwent another VA psychiatric examination in December 2019. The examiner concluded the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria, but he did have a diagnosis of moderate, recurrent major depressive disorder. See December 2019 VA examination. The examiner then opined that it was less likely than not that the Veteran’s major depressive disorder was incurred in or caused by the claimed in-service injury. In support of that finding, the examiner reported there was no indication in the records to provide support that any currently diagnosed condition was related to his military service. The examiner then noted again that the Veteran did not meet the criteria for PTSD. See December 2019 VA medical opinion. While the examiner’s opinion regarding the fact the Veteran does not meet the criteria for a PTSD diagnosis under DSM-5 criteria is clear, his opinion that the Veteran’s currently diagnosed major depressive disorder was not incurred in or caused by his claimed in-service stressor is not. In fact, the opinion lacks any rationale or discussion of whether the Veteran’s claimed in-service stressor impacts his present psychiatric diagnosis. Given the lack of supporting rationale for the opinion rendered, the Board finds a remand is required to obtain a medical addendum opinion that provides a reason or basis for the opinion provided. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s major depressive disorder is at least as likely as not related to his military service, with a thorough discussion of the impact of the Veteran’s described in-service stressor on his present psychiatric diagnosis. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.