Citation Nr: 21062059 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 11-05 805 DATE: October 6, 2021 ORDER A rating higher than 20 percent, including a separate rating for painful motion, for chronic left shoulder ligamentous strain (hereinafter left shoulder disability) prior to May 11, 2016 is denied. REMANDED Service connection for a psychiatric disorder is remanded. Total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 11, 2016, the Veteran's left shoulder disability is manifested by infrequent episodes and guarding of movement only at shoulder level of the minor extremity. 2. A separate compensable rating under Diagnostic Code (DC) 5201 (in addition to the 20 percent rating under DC 5202) would compensate the Veteran twice for the same left shoulder symptoms including pain, limitation of motion due to pain, and functional impairment. CONCLUSIONS OF LAW 1. Prior to May 11, 2016, the criteria for a rating in excess of 20 percent for left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5202. 2. Prior to May 11, 2016, a separate compensable disability rating for limitation of motion of the left shoulder under DC 5201 is precluded because it would constitute prohibited pyramiding of compensation. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1988 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board issued a decision denying a rating higher than 20 percent for the Veteran's left shoulder disability prior to May 11, 2016. In a September 2020 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for partial remand (JMPR), vacated the Board's July 2019 decision, and remanded the case for the Board to discuss whether the Veteran is entitled to a separate rating for painful motion under DC 5201 and to address the issue of entitlement to TDIU. As noted above, this matter was returned to the Board pursuant to a September 2020 JMPR. "A joint motion for remand, when drafted properly, identifies ... clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand. This increases both administrative and judicial efficiency." Carter v. Shinseki, 26 Vet. App. 534, 541 (2014), vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Left Shoulder Disability The Veteran contends that a separate rating under DC 5201 is warranted for his left shoulder disability. For the following reasons, the Board disagrees and finds that a separate rating is not warranted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. Schafrath v. Derwinski, 1 Vet. App. 589 (1995); 38 C.F.R. § 4.1. A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Rating a service-connected disability involving a joint rating on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body within normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequately pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which become painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion may be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. Powell v. West, 13 Vet. App. 31 (1999); Hicks v. Brown, 8 Vet. App. 417 (1995); 38 C.F.R. § 4.59. The Veteran has indicated in medical treatment records that he is right-handed. Therefore, with respect to the left shoulder, the Board will apply the ratings and criteria of the minor arm. The Veteran's left shoulder disability is currently rated as 20 percent disabling under DC 5202 due to recurrent dislocation of the humerus at scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level of the minor arm. A 40 percent rating is assigned for fibrous union of the humerus. A 50 percent rating is assigned for nonunion of the humerus (false flail joint). A maximum 70 percent rating is assigned for loss of head of the humerus (flail shoulder). 38 C.F.R. § 4.71a, DC 5202. Diagnostic Code 5201 is used to rate limitation of motion of the arm. A 20 percent rating is warranted when there is limitation of motion at shoulder level or midway between side and shoulder level. A maximum 30 percent rating is warranted for limitation of motion to 25 degrees from side. 38 C.F.R. § 4.71a, DC 5201. Normal forward flexion of the shoulder is from 0 to 180 degrees, normal abduction is to 0 to 180 degrees, and normal internal and external rotation is from 0 to 90 degrees. Forward flexion and abduction to 90 degrees amounts to shoulder level. 38 C.F.R. § 4.71, Plate I. Prior to August 2009, the medical evidence of record shows ongoing complaints of left shoulder pain and incidents of left shoulder dislocation dating back to 2005. In a January 2010 buddy statement, K.H., the Veteran's roommate during active service, stated that he recalled the Veteran experiencing a lot of pain in his left shoulder following a combat training injury. K.H. further stated that given the "culture of combat arms" at the time, people did not tend to seek medical attention unless it was a life-threatening injury. In a March 2010 VA examination, the examiner noted that any movement of the shoulder with abduction and external rotation overhead with any pressure increased the change of it popping out. The Veteran reported that the left shoulder popped out about three to four times during active service and that he avoided situations that may cause the shoulder to pop out. He experienced regular dull pain in the left shoulder that increased significantly when it popped out. The Veteran exhibited normal range of motion with abduction to 180 degrees, forward flexion to 180 degrees, and internal and external rotation to 90 degrees. The evidence indicated that there was no evidence of pain or painful motion, but impingement testing returned slightly positive. There was no evidence of instability and no additional functional limitations of the joint, including no additional loss of range of motion, during flare-ups or secondary to repetitive use of the joint, painful motion, weakness, and excessive fatigability, lack of endurance, or incoordination. The Veteran was diagnosed with chronic left shoulder ligamentous strain pattern with mild apprehension suggesting previous dislocation. In a July 2011 private treatment record, the Veteran sought treatment for shoulder pain. He was diagnosed with a left shoulder dislocation that required a left shoulder immobilizer. In an August 2011 medical treatment note, the Veteran was documented as having recurrent dislocation of the left shoulder. Medical records from the Social Security Administration were consistent with ongoing reports of left shoulder pain and prior dislocations for the time period in question. At a September 2011 VA examination of the left shoulder, X-rays were within normal limits. An atraumatic dislocation was reduced in July 2011. There was numbness radiating into the left thumb since then and left shoulder soreness. There was no further treatment or evaluation and the Veteran used Naproxen. The Veteran had filed for workers compensation in 2002 after a left shoulder dislocation at work when he was out for a week. Left shoulder motion was at 135 degrees abduction and forward flexion and to 80 degrees of internal and external rotation. Instability and apprehension testing was positive, indicating instability. There was no additional loss function on flare-up or with repetitive motion. In its July 2019 decision, the Board granted a 20 percent rating for the period prior to May 11, 2016, based on documented infrequent dislocation of the scapulohumeral joint. This rating corresponds with DC 5202, which provides for a 20 percent rating for infrequent episodes of recurrent dislocation of the humerus at the scapulohumeral joint and guarding of movement only at the shoulder level of the minor arm. A higher rating cannot be assigned as the evidence does not show fibrous union of the humerus, nonunion of the shoulder (flail joint), or loss of the head of the humerus (flail shoulder). This matter was remanded by the Court to consider whether a separate rating under DC 5201 due to painful motion is warranted. Though there is evidence of the Veteran limiting the movement of his left shoulder due to pain, a separate rating cannot be awarded. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board finds that the 20 percent rating assigned under DC 5202 encompasses all functional limitations and impairments of the left shoulder, to include limitation of motion and guarding, such that a separate rating under DC 5201 would compensate the Veteran twice for the same symptoms including pain, limitation of motion due to pain, and functional impairment, violating the anti-pyramiding provisions of 38 C.F.R. § 4.14. As such, the Veteran does not have any separately identifiable residual symptoms or functional impairment due to the left shoulder disability that is not already being compensated by the 20 percent rating under DC 5202 that would warrant additional compensation. As explained above, the Veteran is in receipt of a 20 percent rating under DC 5202 for infrequent episodes of recurrent dislocation of the shoulder at scapulohumeral joint and guarding of movement only at shoulder level. A separate rating under DC 5201 is not available because both DC 5202 and DC 5201 contemplate limitation of motion, including due to pain, which is described as guarding in DC 5202. Guarding is defined as an involuntary reaction to protect an area of pain. See "guarding." Merriam-Webster Medical Dictionary. "Guarding" is defined as a spasm of muscles to minimize motion or agitation of sites affected by injury or disease. https://medical-dictionary.thefreedictionary.com/guarding. Guarding may also be a sign detected during physical pain whereby the patient involuntarily contracts muscles second to pain. Jonas: Mosby's Dictionary of Complementary and Alternative Medicine. (c) 2005, Elsevier. All medical definitions of guarding involve the element of minimized or limited motion of the affected area due to injury or disease. That is, separate ratings distinguishing between left shoulder limitation of motion, including as due to pain, under DC 5201, and guarding due to pain or dislocations under DC 5202 would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14 as guarding, by definition, includes limitation of left shoulder motion due to anticipation of right shoulder pain or dislocations under DC 5202. In this case, the left shoulder disability has been manifested by pain, and painful motion of the left shoulder, as well as guarding (including due to dislocations), which are all specifically contemplated under DC 5202. See 38 C.F.R. §§ 4.40, 4.45, 4.59. To the extent that the Veteran has difficulties with shoulder or arm movement or elevation, such limitation of motion is specifically contemplated as guarding under DC 5202, such that rating the symptoms of limitation of motion and guarding causing limitation of motion would result in rating the same symptoms under different disabilities and would compensate the Veteran twice for the same symptoms, constituting impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.71a, DC 5202. In addition, it would be pyramiding to assign a separate rating under DC 5201 for limitation of elevation of the left shoulder that results in symptoms of dislocation, pain, and weakness as these symptoms are based in part on joint rating factors, which are fully contemplated under DC 5202 as dislocation with episodes of guarding due to pain and weakness. Rating the symptoms of dislocation with guarding (causing limitation of motion) as shoulder weakness and limitation of elevation under DC 5201 would result in rating the same symptoms under different disabilities and would compensate the Veteran twice for the same symptomology as the 20 percent disability rating assigned under DC 5202, which already encompasses all functional limitations and impairments of the right shoulder, to include painful motion and weakness. Further, all the symptomatology and impairment caused by the left shoulder disability has been specifically contemplated by (and compensated for) under DC 5202. The schedular rating criteria contemplate the Veteran's left shoulder disability and the symptoms associated with such left shoulder disability, including limitation of motion and impairment of function, including due to pain and dislocations and weakness. The schedular rating criteria pertaining to the Veteran's left shoulder disability provide for ratings based on limitation of motion, including due to pain and other orthopedic factors such as weakness, incoordination, and fatigability. In this case, the Veteran's left shoulder disability has been manifested by painful motion of the left shoulder, and infrequent episodes of recurrent dislocation of the left shoulder and guarding of movement only at shoulder level. The Veteran avoids movement of the left shoulder, to include not working over the head and sleeping in a guarded posture is similar to painful motion, at it limits motion. Such limitation of motion has been considered in assigning the 20 percent rating. All the symptomatology and impairment caused by the left shoulder disability has been specifically contemplated by the 20 percent disability rating under DC 5202, to include the symptoms associated with such disability including limitation of motion and impairment of function. As such, a separate rating under Diagnostic Code 5201 would compensate twice for the same symptoms, limitation of motion, and functional impairment, violating the anti-pyramiding provisions of 38 C.F.R. § 4.14. Accordingly, a separate rating under DC 5201 for the Veteran's left shoulder disability is denied. REASONS FOR REMAND Psychiatric Disorder In a May 2021 statement, the Veteran reported an in-service incident involving a personal assault. Specifically, he alleged that he was bitten and beaten as part of an initation ritual. The Veteran also alleged that he experienced military sexual trauma (MST) in this statement. A remand is necessary to obtain an addendum opinion on whether the Veteran's current mental health disabilities are related to this in-service personal assault and MST. Furthermore, in a Septmber 2017 statement, the Veteran contended that he was depressed due to his shoulder and tinnitus. No VA examiner has opined whether the Veteran's psychiatric disabilities were caused by or aggravated beyond this natural progression by his service connected left shoulder disability and service connected tinnitus. As such, a remand is necessary to obtain an addendum opinion. TDIU A claim for an increased rating includes a claim for TDIU where there is evidence that the disabilty interferes with the Veteran's ability to obtain and maintian substantially gainful employment. As the Veteran's left shoulder disability interferes with his ability to obtain and maintian substantially gainful employment, the Board has jurisdiction over a claim for TDIU. Because a decision on the remanded issue of service connection for a psychiatric disability could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion regarding whether the Veteran's depressive disorder and/or anxiety disorder are at least as likely as not related to an in-service personal assault that includes military sexual trauma. The examiner is to consider that the Veteran's May 2021 statement describing the assault. The rational for the opinion must be provided. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's depressive disorder and/or anxiety disorder are at least as likely as not caused by his service-connected left shoulder disability or service-connected tinnitus or aggravated beyond its natural progression by his service-connected left shoulder disability or service-connected tinnitus. (Continued on the next page) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.