Citation Nr: 21068955 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-64 237 DATE: November 17, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for PTSD is denied. Entitlement to an evaluation in excess of 30 percent for a right shoulder condition is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate total occupational and social impairment. 2. The Veteran's dominant right shoulder impairment was not manifest by flexion and/or abduction limited to 25 degrees from one side. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 30 percent for a right shoulder condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1995 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Veteran's claims were previously remanded by the Board in a December 2020 decision. The Board finds that the RO has substantially complied with the December 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In a February 2021 rating decision, the RO increased the evaluation of the Veteran's right shoulder condition to 30 percent effective September 1, 2016, the date of the initial grant of service connection. The Board notes that the Veteran is in receipt of total disability due to individual unemployability, which is equivalent to benefits received at a 100 percent disability rating, effective September 1, 2016. Increased Rating 1. Entitlement to an evaluation in excess of 70 percent for PTSD The Veteran contends that his PTSD has worsened since his original VA examination. At the November 2020 hearing, the Veteran testified that he was experiencing increased anxiety, hypervigilance, and depression. The Veteran further reported polar mood swings, inability to control his actions, and reported "manic" symptoms before the hearing. The Veteran further reported that he experienced flashbacks and nightmares whenever he closed his eyes. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: 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 (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. In February 2021, the Veteran underwent an updated VA examination. The examiner diagnosed the Veteran with PTSD and Bipolar Disorder, unspecified. The Veteran reported that his PTSD symptoms are mediated by the bi-monthly manic and depressive mood swings with PTSD symptoms exacerbated during manic phases of his bipolar disorder. The examiner concluded the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted the two disorders and their resulting impairments overlap, and, thus, their individual impact cannot be determined. The Veteran reported that he is currently homeless but living at a friend's cabin. The Veteran reported he is divorced and recently broke up with a longtime girlfriend. The Veteran indicated that he is seeking a job in broadcasting but has not worked since 2017 and has been deemed unemployable. The Veteran reported he is not currently prescribed any medications and has monthly appointments with a psychologist via telehealth. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. The Veteran's mental status examination was largely unremarkable. The examiner noted that during the evaluation, the Veteran did not appear to be experiencing mania, depression or significant PTSD-related distress. The Veteran's recent VA treatment notes from September 2021 reveal symptoms of mild depression, a score of 33 on the PTSD PCL-5 assessment, and largely unremarkable mental status examinations. VA and private treatment records, the February 2021 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating, and no symptoms associated with a 100 percent rating. He also had symptoms that are not listed with a specific rating, such as increased anxiety, hypervigilance, and depression. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Further, increased anxiety, hypervigilance, and depression are similar to inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, and spatial disorientation, which are contemplated by the assigned 70 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. Entitlement to an evaluation in excess of 30 percent for a right shoulder condition The Veteran contends that his right shoulder condition has worsened. The Veteran's right shoulder condition, claimed as rotator cuff tear and tendonitis, is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In February 2017, the Veteran underwent an initial VA shoulder evaluation. The Veteran reported that he experienced dull achy pain that becomes sharp and stabbing when he attempts to lift his arm. The Veteran reported he occasionally experiences numbness and tingling in the right hand and fingers. The Veteran was noted to be right-handed. The Veteran reported flare-ups during old weather and when he engages in too much activity. The Veteran reported that he is unable to reach overhead or throw with his right arm. On initial range of motion testing, the Veteran had flexion of 0 to 180 degrees; abduction of 0 to 120 degrees; external rotation of 0 to 70 degrees; and internal rotation of 0 to 50 degrees. The examiner noted tenderness to palpation at the AC joint. The examiner noted no additional functional loss after repetitive use testing. The examiner indicated he could not provide a range of motion estimate during a flare-up as it would be mere speculation. The Veteran had 4/5 muscle strength, no ankylosis, but a positive Hawkins' impingement test, positive Empty-can test, positive external rotation test, and a positive lift-off subscapularis test. The examiner noted no instability. The examiner noted the Veteran would have functional limitations of being unable to do overhead work, throw, reach, push, or pull with his right arm. The examiner noted objective evidence of pain on passive ROM testing; no objective evidence of pain with non-weightbearing, and noted the opposing joint was undamaged. In February 2021, the Veteran underwent an updated VA examination. The examiner noted diagnoses of rotator cuff tendonitis, rotator cuff tear, degenerative arthritis, and right shoulder subacromial/subdeltoid bursitis. The Veteran reported he has flare-ups 4 times a month at 10/10 severity lasting 5 hours to 3 days. The Veteran reported writing or simple activity causes pain to radiate into the neck, right arm, and hand. On initial range of motion testing, the Veteran had flexion of 0 to 70 degrees, abduction of 0 to 45 degrees, external rotation of 0 to 5 degrees, and internal rotation of 0 to 80 degrees. The examiner noted that the range of motion limitations cause a functional loss as the Veteran requires rest due to pain. The examiner indicated the Veteran was unable to perform repetitive use testing as Veteran began sweating due to the pain. The examiner indicated the Veteran would have flexion of 0 to 60 degrees, abduction of 0 to 40 degrees, external rotation of 20 to 5 degrees, and internal rotation of 20 to 70 degrees with repetitive use over time. The examiner also indicated the Veteran would have flexion of 0 to 60 degrees, abduction of 0 to 45 degrees, external rotation of 20 to 5 degrees, and internal rotation of 20 to 80 degrees during a flare-up. The examiner noted muscle strength of 3/5 on forward flexion and 1/5 on abduction. The examiner noted no muscle atrophy or ankylosis. All rotator cuff tests were positive on the right. The examiner indicated the Veteran was unable to use his right arm and shoulder in his usual occupation as a chef/cook. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for a right shoulder condition. The evidence of record shows that the Veteran is right-handed based on the February 2017 and February 2021 VA examinations. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to additional functional loss caused by pain, weakened movement, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare-ups 4 times a month lasting up to 3 days would not result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the side of the major extremity. The February 2021 VA examiner indicated the Veteran would have limitation of flexion to 0 to 60 degrees and abduction to 0 to 40 degrees during a flare-up. A limitation to 40 degrees abduction is more consistent with a 30 percent rating requiring limitation to 45 degrees or less than a 40 percent rating requiring limitation to 25 degrees. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The Veteran's right shoulder condition does not manifest as ankylosis or any other listed impairment. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 30 percent for a right shoulder condition. 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. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.