Citation Nr: 21066004 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-34 578 DATE: October 28, 2021 ORDER From August 27, 2014 through November 6, 2015, a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. Prior to November 5, 2015, a 20 percent rating for a cervical strain is denied. An effective date of January 26, 2012, but no earlier, for the grant of a 20 percent rating for left shoulder sprain, status post rotator cuff tear, is granted. FINDINGS OF FACT 1. From August 27, 2014, the Veteran's PTSD was manifested by symptoms causing occupational and social impairment with deficiencies in most areas. 2. Prior to November 5, 2015, a cervical strain was not manifested by cervical forward flexion of 30 degrees or less, a combined range of motion of the cervical spine of 170 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. An informal claim for an increased rating for left shoulder sprain, status post rotator cuff tear, was received on January 26, 2012. CONCLUSIONS OF LAW 1. From August 27, 2014 through November 6, 2015, the criteria for a 70 percent rating for PTSD were met. 38 U.S.C. §§ 1155, 7105; 38 C.F.R. §§ 3.400, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. Prior to November 5, 2015, the criteria for a 20 percent rating for a cervical strain were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5242. 3. The criteria for entitlement to an effective date of January 26, 2012, but no earlier, for the grant of a 20 percent rating for left shoulder sprain, status post rotator cuff tear, have been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.155, 3.157 (2014), 3.1, 3.151, 3.400, 4.40, 4.59, 4.71a, DC 5201, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1992 to November 1992, July 2005 to January 2007, May 2007 to July 2008, and October 2009 to November 2010. These matters are before the Board of Veterans' Appeals (Board) on appeal of a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the claims for further development, which has since been substantially completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). During the claim period, the agency of original jurisdiction (AOJ) increased the ratings for the Veteran's service-connected PTSD, left shoulder sprain, and cervical strain. The Board acknowledges that the VA Form 9 that perfected this appeal framed the issues as entitlement to earlier effective dates for the awards of 70 percent, 20 percent, and 20 percent ratings for PTSD, left shoulder sprain, and cervical strain, respectively. However, with respect to the PTSD and cervical strain claims, the issues the Veteran is appealing are properly characterized as claims for increased ratings during the earlier periods of staged ratings. Given the nature of those two claims, the Board has recharacterized those issues accordingly. As the Board previously noted in its March 2019 remand, with respect to the increased rating claims, the Veteran has limited his appeal to the issues of entitlement to a 70 percent rating for PTSD prior to November 7, 2015 and entitlement to a 20 percent disability rating for cervical spine strain prior to November 5, 2015. See June 2017 VA Form 9; AB v. Brown, 6 Vet. App. 35, 39 (1993). From August 27, 2014 through November 6, 2015, a 70 percent rating for PTSD is granted. The Veteran filed the instant increased rating claim in August 2014. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. 38 C.F.R. § 4.7. The Veteran's PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Under the general formula, a rating of 70 percent is assigned where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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 inability to establish and maintain effective relationships. Id. The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the enumerated factors listed in 38 C.F.R. § 4.130, DC 9411. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Id. On VA examination in November 2014 the PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short and long-term memory, for example, retention of only highly leaned material, while forgetting to complete tasks, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The Veteran was noted to be married, although his anger scared his wife. He reported contact with only one friend and having been fire from his job. The examiner summarized the level of occupational and social impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. By contrast, on VA examination in November 2015, the examiner noted additional symptoms of difficulty in adapting to stressful circumstances, including work or a work like setting and inability to establish and maintain effective relationships. The Board finds that entitlement to a 70 percent rating for PTSD arose from the date of the Veteran's August 27, 2014 increased rating claim. At the November 2014 VA examination, the examiner explicitly noted deficiencies in the Veteran's work, evidenced by having been fired from his job; family relations, evidenced by his wife becoming afraid of him during anger outbursts; thinking, evidenced by impairment of short and long-term memory; and mood, evidenced by depressed mood and anxiety. This evidence supports findings deficiencies in "most areas." While the November 2014 examiner did not list any of the specific symptoms stipulated as supporting a 70 percent rating, it appears that the discrepancy between the November 2014 and November 2015 examinations is a difference of interpretation rather than a worsening of symptoms during that period. In this regard, while the November 2015 examiner noted difficulty in adapting to stressful circumstances, including work or a work like setting and inability to establish and maintain effective relationships, the November 2014 examiner specifically noted the Veteran had been fired from his job and was unemployed, and had not made any new friends since he was last examined by VA. The evidence is at least in equipoise as to whether a 70 percent was warranted at the time of the Veteran's August 27, 2014 claim. On review, there is no correspondence or other evidence that could constitute an informal claim for increased rating prior to August 27, 2014, nor is there evidence that entitlement to a 70 percent rating for PTSD was factually ascertainable in the one-year period prior to the August 27, 2014 date of claim. Accordingly, a 70 percent rating for PTSD from August 27, 2014 through November 6, 2015 is granted. As explained above, this increase is a full grant of the benefits sought on appeal with respect to this claim. Prior to November 5, 2015, a 20 percent rating for cervical strain is denied. On August 27, 2014, the Veteran submitted the instant claim for an increased rating for cervical strain. In November 2014, an increased rating for cervical strain was denied. The Veteran appealed. In September 2016, he was granted a 20 percent rating, effective November 5, 2015, the date of a VA examination which supported the increased rating. 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 with 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, functional loss may be due to pain, supported by adequate 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 becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 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. 38 C.F.R. § 4.59. Limitation of cervical motion is rated under 38 C.F.R. § 4.71a, DC 5242, and the General Rating Formula for Diseases and Injuries of the Spine (rating formula). In relevant part, a 20 percent evaluation is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DC 5242. In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Notably, the spine has no opposite joint. Furthermore, to the extent passive range of motion testing was not conducted during the period under review, this does not warrant remand for a retroactive opinion, as the Board finds it reasonable to assume that clinician-assisted passive range of motion testing would reflect greater, not more limited, range of motion than active range of motion testing. Remand for that purpose would not, therefore, benefit the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). On VA examination in November 2014, the Veteran demonstrated 45 degrees of forward flexion, 25 degrees of extension, 35 degrees of right lateral flexion, 35 degrees of left lateral flexion, 70 degrees of right lateral rotation and 70 degrees of left lateral rotation. These figures result in a combined range of motion of the cervical spine of 280 degrees. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additional limitation of motion was not observed following repetitive use testing. Regarding flare-ups, the Veteran described pain in the back of his neck every day for one to two minutes, during which he was "unable to do anything." During the examination, the Veteran was not able to replicate his symptoms, to include any additional limitation of motion, during a flare-up. In a September 2015 VA treatment record, the Veteran demonstrated cervical forward flexion to 40 degrees, extension to 50 degrees, rotation to 50 degrees (presumably bilaterally), and lateral flexion to 50 degrees (again, presumably bilaterally). These figures result in a combined range of motion of the cervical spine of 290 degrees. The relevant evidence during the period in question preponderates against finding cervical forward flexion of 30 degrees or less, or a combined range of motion of the cervical spine of 170 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis so as to warrant a 20 percent rating prior to November 5, 2015. On the contrary, the relevant medical evidence demonstrates cervical forward flexion of no less than 40 degrees and a combined range of motion of no less than 280 degrees prior to November 5, 2015. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Regarding flare-ups, the Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the Board does not find that the Veteran's description of daily flare-ups of pain lasting one to two minutes would result in limitation of motion more nearly approximating forward flexion of the cervical spine not greater than 30 degrees or combined range of motion of the cervical spine not greater than 170 degrees, given their short duration. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Consideration has also been given to assigning a 20 percent rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran has not been diagnosed with IVDS. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Finally, regarding neurological impairment, the Veteran is already in receipt of separate ratings for left and right upper extremity radiculopathy, effective August 27, 2014. As already explained, he specifically limited his appeal to the orthopedic manifestations of his cervical spine disability when he filed his VA Form 9. See September 2016 SOC (which also adjudicated the ratings assigned for left and right upper extremity radiculopathy). In any event, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability or a finding that he is entitled to even higher ratings for his radiculopathy during the period in question. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a 20 percent rating for cervical strain prior to November 5, 2015. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to an effective date of January 26, 2012, but no earlier, for the grant of a 20 percent rating for left shoulder sprain, status post rotator cuff tear, is granted. In September 2008, VA granted service connection for a left shoulder sprain and assigned a 0 percent rating from July 14, 2008. In April 2009, the Veteran submitted a claim for an increased rating for his left shoulder, which was denied in September 2009. The Veteran did not appeal the rating assigned and new and material evidence was not received within the one-year appeal period. Thus, that decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. On August 27, 2014, the Veteran submitted a claim for increased rating for the left shoulder disability. In November 2014, the Veteran was granted a 10 percent rating, effective August 27, 2014. The Veteran disagreed with the assigned rating. In September 2016, the Veteran was granted a 20 percent rating, effective August 6, 2013, the date of a VA treatment record which supported an increased rating. The Veteran perfected the instant appeal in a June 2017 VA Form 9, indicating a desire to appeal the issue of entitlement to an effective date prior to August 6, 2013 for the grant of a 20 percent rating for left shoulder sprain, status post rotator cuff tear. The 20 percent rating for left shoulder sprain, status post rotator cuff tear, was assigned based on the date of an August 6, 2013 VA treatment record, which is prior to the date of the Veteran's formal claim (VA Form 21-526EZ) for increased rating. As the August 6, 2013 effective date is more than one year prior to the August 27, 2014 claim, it is apparent that the August 6, 2013 VA treatment record was accepted as an informal claim for increase pursuant to 38 C.F.R. § 3.157(b) (2014) discussed above. Thus, the question for the Board is whether any document or communication prior to August 6, 2013 can be construed as an earlier formal or informal claim for an increased rating for a left shoulder disorder, and, if so, whether entitlement to a 20 percent rating for a left shoulder sprain, status post rotator cuff tear, arose prior to that claim. In this case, the Board finds that an earlier informal claim was received on January 26, 2012. A January 26, 2012 VA treatment record included in the same file as the August 2013 treatment record cited by the AOJ notes that the Veteran complained of left shoulder pain that was increased by raising the arms. The onset of the pain was reported as "greater than one year." 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. 38 C.F.R. § 4.59. In the case of a left shoulder disability, the minimum compensable rating based on limitation of motion is 20 percent. 38 C.F.R. § 4.71a, DC 5201. As the January 26, 2012 VA treatment record explicitly noted left shoulder pain on motion, which is sufficient to support an increased 20 percent rating, the Board finds that this record of treatment constituted an informal claim for increased rating for a left shoulder disability under 38 C.F.R. § 3.157(b) as in effect prior to March 24, 2015. The January 26, 2012 VA treatment record noted the onset of the left shoulder pain was "greater than one year" prior. As the increase in disability did not occur within the one-year period prior to the date of claim, the one-year lookback provision does not apply. (Continued on the next page) There is no correspondence or other evidence that could constitute a formal or informal claim for increased rating prior to January 26, 2012. Accordingly, an effective date of January 26, 2012, but no earlier, for the grant of a 20 percent rating for a left shoulder sprain, status post rotator cuff tear, is granted. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.