Citation Nr: 21069545 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-40 034 DATE: November 18, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) is denied. Entitlement to an increased rating for right shoulder degenerative joint disease with labral tears, status-post SLAP repair ("right shoulder disability"), rated at 20 percent except for a temporary total rating from June 10, 2014, to February 1, 2015, is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to April 30, 2018, for plantar fasciitis is remanded. Entitlement to a rating in excess of 30 percent from April 30, 2018, to September 4, 2019, for plantar fasciitis is remanded. Entitlement to a rating in excess of 20 percent from September 4, 2019, for plantar fasciitis is remanded. FINDINGS OF FACT 1. The Veteran's TBI is best assessed with separate ratings for headache disability and posttraumatic stress disability; the remaining TBI manifestations have not resulted in higher than level 1 impairment in any facet for rating TBI. 2. The right shoulder disability does not most nearly approximately limitation of motion to midway between the side and shoulder and is not associated with neurological deficit. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for TBI have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a Diagnostic Code 8045. 2. The criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February to June 2001 and January 2003 to May 2004. This matter was previously before the Board, with these issues most recently before the Board in May 2019. Increased Rating 1. TBI The Veteran's TBI is rated under 38 C.F.R. § 4.124a Diagnostic Code 8045. Diagnostic Code 8045 provides that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." A 100 percent evaluation is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation assigned is based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation based on the same manifestations cannot be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, separate evaluations are assigned for each condition. See 38 C.F.R. § 4.124a Diagnostic Code 8045, Note (1). A July 2014 VA treatment record indicates that a "TBI Second Level Evaluation" was conducted by a physician. The record reports that the Veteran had full orientation, fluent speech, and normal results on the tests for memory, attention and recall, language, and visual/spatial orientation. A November 2015 VA examination record reveals the Veteran's history of concentration problems, explaining that she had to reread especially in a noisy environment. There was a complaint of mild memory loss and impairment of concentration, attention, and executive functioning without objective evidence on testing. Judgment was normal, and social interaction was routinely appropriate. The Veteran was always oriented, and motor activity and visual spatial orientation were normal. There were subjective symptoms of headaches, but they did not interfere with work, instrumental activities of daily living, or relationships. There were no neurobehavioral effects, and communication and consciousness were normal. The examiner reported that the Veteran's neurobehavioral symptoms, nightmares, and hypervigilance were more associated with PTSD. The highest level of impairment based on this examination is 1. A July 2017 VA examination record reveals the Veteran's endorsement of symptoms including memory and concentration problems. The examiner determined that there a complaint of mild memory loss, attention, concentration, or executive functioning but no objective evidence on testing. The Veteran was always oriented, and motor activity, communication, consciousness, and visual spatial orientation were normal. Social interactions were occasionally inappropriate. There was moderately severe impairment of judgment. There were three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or relationships. The examiner explained that the Veteran had headaches, frequent insomnia, and hearing problems. There were one or more neurobehavioral effects that frequently interfere with interactions but do not preclude them due to hypervigilance and decreased motivation. The examiner reported that the Veteran had related diagnosis of PTSD with possible overlapping symptomatology. The highest level of impairment based on this examination is 3, based on judgment, and then 2 based on subjective symptoms or neurobehavior. A September 2019 "cognitive screening for TBI" reveals findings of objective evidence of mild impairment of memory, attention, concentration, or executive function resulting in mild functional impairment, mildly impaired judgment, frequently inappropriate social interaction, normal orientation, normal motor activity, and mildly impaired visual spatial orientation. There were three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or relationships, which the examiner defined as headaches, anxiety, insomnia/nightmares, and hypersensitivity to light. There were one or more neurobehavioral effects that frequently interfere with interactions but do not preclude them due to impulsivity, irritability, and apathy. Communication was occasionally impaired due to slowed speech. Consciousness was normal. The record notes that some symptoms may overlap with the PTSD and depression. The highest level of impairment based on this examination is 2, based on "memory, attention, concentration, executive functioning," social interaction, or neurobehavioral effects. A September 2019 VA "TBI" examination record reveals the Veteran's history of memory issues, irritability, and light sensitivity. The examiner stated that the Veteran had a complaint of mild memory loss without objective evidence on testing. There was moderately severely impaired judgment. Social interaction was occasionally inappropriate. Orientation, communication, consciousness, visual spatial orientation, and motor activity were normal. There were three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or relationships, which the examiner defined as headaches and sensitivity to light and noise. There were one or more neurobehavioral effects that frequently interfere with interactions but do not preclude them due to the mood disorder, irritability, impulsivity, and diminished empathy. The examiner stated that the Veteran's mood lability was likely due to PTSD and TBI but could not say to what extent each was contributing. An October 2019 VA addendum reports that the Veteran's deficits in memory, attention, social interaction, and behavior were due to both TBI and PTSD. The neurologist stated that only the headaches were mostly due to the TBI, without a PTSD component. In another addendum, the examiner stated that the reported visual disturbances were sensitivity to light and blurry vision with peripheral vision changes were due to the headache disability. The highest level of impairment based on this examination is 2, based on judgment or neurobehavior effects. An October 2019 VA mental health examination record reports that the symptoms of TBI and PTSD could not be differentiated. The Board finds the Veteran's service-connected TBI does not warrant a rating in excess of 10 percent under Diagnostic Code 8045. The record indicates that separate ratings are in effect for migraine headaches (at 50 percent throughout), tinnitus, and posttraumatic stress disorder (at 50 percent and 70 percent from January 6, 2017). The record indicates that these separate conditions and associated manifestations were considered by the 2017 and 2019 examiners in determining the levels of impairment for facets. The highest rating under Diagnostic Code 8045 with contemplation of the headache disorder and PTSD, or just the PTSD, would be 70 percent based on the 2017 VA examination or 40 percent based on the 2019 examinations. Rating the PTSD and headache disorder separately results in three different ratings, with a 70 percent assigned for PTSD alone as of the July 2017 VA examination. Thus, the Board finds the manifestations of the headache disability and PTSD are best assessed under diagnostic codes 9411 and 8100. When only rating the other manifestations, the record indicates that the Veteran warrants at most a level 1 for any of the facets for rating TBI. In making the determination as to which symptoms are contemplated by the ratings assigned for the headache disability and PTSD the Board finds most probative the VA examiners' determinations and the May 2019 and August 2020 Board decisions. The Board notes that in the May 2019 decision, the Board contemplated the reported sensitivities to light and sound, visual disturbance, and headaches in determining the appropriate rating for the headache disability and in the April 2020 decision, the Board contemplated the reported mood and motivation disturbances, anxiety, memory loss, social impairment, impaired concentration, impaired impulse control, and impaired judgment among other symptoms in determining the appropriate ratings for the PTSD. The evidence does not show that the Veteran warrants a level 2 or higher for any of the facets for rating TBI, as required for a higher rating for any remaining symptom attributed to the TBI. Thus, a higher rating is not warranted. The Board further finds a separate rating is not warranted during this period. The record does not indicate that the Veteran has a distinct disorder due to the TBI which has not yet been service connected. The Board finds a separate rating is also not warranted based on unemployability prior to February 21, 2014, because there is no evidence of unemployability due to the TBI. Notably, the Veteran reported unemployability due solely to the left shoulder disability and only as of April 9, 2015, on the VA form 21-8940, and the record, including the November 2015 VA examination record, does not suggest that the TBI resulted in unemployability prior to February 21, 2014. 2. Right Shoulder Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45; Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran is right-handed. Limitation of motion of the major arm is rated at 20 percent for motion limited to shoulder level, 30 percent for motion limited to midway between side and shoulder level, and 40 percent for motion limited to 25 degrees from the side. A February 2014 private treatment record reveals the Veteran's history of painful right shoulder since a work injury. Range of motion testing revealed 150 degrees forward flexion, 120 degrees lateral abduction, 30 degrees external rotation and internal rotation with the right hand touching the right upper lumbar paraspinal muscles. The diagnosis was shoulder joint derangement. A March 2014 private arthrogram showed suspected nondisplaced anterosuperior labral tear. An April 2014 VA treatment record reports that the Veteran had 4/5 strength with flexion, extension, and abduction of the right shoulder. She was also noted to have decreased sensation of the right pinky. An April 2014 private treatment record reveals the Veteran's history right shoulder pain, exacerbated by motion. The Veteran did not report numbness or tingling or weakness of the shoulder. She denied dislocation. She denied radiation of the shoulder pain. Examination revealed 100 degrees flexion, 35 degrees extension, 60 degrees internal rotation, 60 degrees external rotation, 100 degrees abduction, and 35 degrees adduction. A May 2014 private treatment record reveals the Veteran's history of painful use of the right shoulder since injury in January 2014. Examination revealed 135 degrees flexion, 90 degrees external rotation, and 60 degrees internal rotation. A June 10, 2014, operative report reveals that the Veteran underwent arthroscopic repair of the right shoulder anterior superior glenoid labrum tear. A July 2014 VA examination record reveals the Veteran's history of undergoing surgical treatment in June 2014. The record indicates that the Veteran required use of a sling and was receiving physical therapy. The Veteran reported flares when stretching or lifting the right arm. The Veteran had flexion to 90 degrees, abduction to 80 degrees, internal rotation to 90 degrees, and external rotation to 80 degrees. There was no change in range of motion after repetition. There was pain with use and motion. The examiner estimated that with repeated use over time or flares, motion would be limited to 85 degrees flexion, 75 degrees abduction, 85 degrees internal rotation, and 75 degrees external rotation. Muscle strength was 4/5. There was no atrophy. There was no ankylosis. Rotator cuff condition was not suspected. Shoulder instability, dislocation, or labral pathology was suspected, and there was a history of mechanical symptoms. There was not a history of recurrent dislocation of the glenohumeral joint. The Veteran was unable to perform the crank apprehension and relocation test. A clavicle, scapula, acromioclavicular (AC) joint, or sternoclavicular joint condition was not suspected. There was not malunion, nonunion, or flail shoulder. The examiner reported that the Veteran was limited in overhead lifting and reaching behind the right shoulder on an occasional basis. A July 2014 private treatment record reports that passive range of motion with forward flex and abduction in combined motion that exceeded 90 degrees with no evidence of adhesive capsulitis. Another July 2014 private treatment record indicates that the Veteran had reached 160 degrees of active flexion. There was pain and guarding with internal rotation behind the back. An August 2014 VA treatment record reports that the Veteran had numbness of the right pinkie and ring fingers which she attributed ot the shoulder surgery. A September 2014 private treatment record reveals the Veteran's history of "some" pain and stiffness with physical therapy. She reported a pinching sensation with certain motions, especially the right shoulder cross and internal rotation. She also reported persistent numbness in the right thumb, index, and middle fingers and some residual swelling in the right hand since the June 2014 surgery. Range of motion testing showed active motion of 122 degrees flexion and 145 degrees abduction. With the shoulder at 90 degrees abduction, internal rotation was 46 degrees and external rotation was 75 degrees. An October 2014 private treatment record reveals the Veteran's history that her shoulder was doing a "little better." The Veteran reported pain only when moving the shoulder to full range of motion. Range of motion testing showed active motion of 142 degrees flexion and 150 degrees abduction. With the shoulder at 90 degrees abduction, internal rotation was 35 degrees and external rotation was 90 degrees. The record reports that an EMG/NCS showed early stages of mild right carpal tunnel syndrome but no evidence of brachial plexopathy or cervical radiculopathy. A November 2014 private treatment record reveals the Veteran's history of improvement in the right shoulder, though there was still anterior shoulder pain when crossing the chest with the right arm. Range of motion testing showed active motion of 145 degrees flexion and 150 degrees abduction. With the shoulder at 90 degrees abduction, internal rotation was 42 degrees and external rotation was 90 degrees. A January 2015 private treatment record reports the Veteran's history of "some" pinching sensation with crossing the right arm across the chest at shoulder level. The Veteran reported the same sensation with flexion overhead or above shoulder level with the arm in an internally rotated position. Range of motion testing showed active motion of 160 degrees flexion and 150 degrees abduction. With the shoulder at 90 degrees abduction, internal rotation was 35 degrees and external rotation was 90 degrees. A March 2015 private treatment record reveals the Veteran's history of increase in strength and active range of motion of the right shoulder. She did report a "pinch" in the shoulder when crossing her arm across her chest. Active range of motion was about 145 degrees flexion and 190 abduction. The Veteran also had 55 degrees internal rotation and 90 degrees external rotation when at 90 degrees of shoulder abduction. A March 2015 private evaluation record reveals the Veteran's history of mild right shoulder pain that was aggravated by heavy lifting, pulling, or pushing. The Veteran also reported some occasional tingling/numbness in the right hand. Examination revealed 165 degrees flexion, 160 degrees abduction, 40 degrees adduction, 50 degrees extension, 50 degrees external rotation, and 75 degrees internal rotation. An April 2015 private evaluation record reveals the Veteran's history of a pinching sensation when actively crossing the right arm across the chest or with the right arm positioned in abduction combined with internal rotation. The Veteran also reported numbness and tingling in the right hand and swelling of the hand. She reported tingling two months after her arthroscopic labral repair procedure in 2014. Examination revealed 148 degrees abduction, 145 degrees flexion, 90 degrees external rotation, and 45 degrees internal rotation. Motor strength was 5/5. Another April 2015 private evaluation record reveals the Veteran's history of pinching pain with muscle spasm in the right shoulder. The Veteran also reported radicular pain with numbness and swelling down the right arm into the right hand. Reaching overhead, reaching across the body, and rotating the shoulder aggravated the pain. Examination revealed 150 degrees flexion, 120 degrees extension, 140 degrees abduction, 20 degrees adduction, 20 degrees external rotation, and 20 degrees external rotation. A June 2017 VA examination record reveals diagnoses of right shoulder degenerative joint disease with labral tears, rotator cuff tendonitis, and AC joint strain. The Veteran reported flares associated with right hand swelling, numbness, tingling, and pinching with movement as well as soreness, limited range of motion, and weakness. She reported chronic pain throughout the arm, including nerve pain. Range of motion testing revealed flexion and abduction to 145 degrees, external rotation to 80 degrees, and internal rotation to 55 degrees. There was pain with passive and active flexion and abduction. There was no change in range of motion after repetition. The examiner estimated that repeated use over time and flares would result in 135 degrees flexion and abduction, 75 degrees external rotation, and 50 degrees internal rotation. Motor strength was 4/5. There was no atrophy or ankylosis. There was not a history of recurrent dislocation. There was AC joint strain. The Veteran was status-post SLAP repair with residual pain, weakness, and decreased motion. A January 2018 private treatment record reveals the Veteran's history of neuropathy and swelling. Examination revealed limited motion of the right shoulder. A September 2019 VA "shoulder" examination record reveals the Veteran's history of right shoulder pain. She reported flares a few times per week that last a day. She reported that functional impairment from inability to lift things. Range of motion testing revealed flexion to 110 degrees, abduction to 90 degrees, and external and internal rotation to 90 degrees. There was pain with flexion and abduction. There was no change in range of motion after repetition. The examiner stated that functional ability would not be significantly limited with repeated use over time or flares. Motor strength was full, and there was no atrophy. There was no ankylosis. There was a history of infrequent dislocation of the glenohumeral joint. The Veteran was noted to be status-post surgery with residual stiffness and impingement. A September 2019 VA "peripheral nerve" examination record reveals the Veteran's history of right forearm numbness, pain, and tingling since shoulder surgery in 2012. The record reveals diagnosis of mild ulnar nerve impairment. The examiner stated that it was less likely than not that the ulnar nerve impairment was due to the right shoulder disability. The examiner explained that it was less likely than not that the neurological condition was due to the left shoulder disability because although the Veteran had documented surgery and injury of the brachial plexus, nerve study showed only carpal tunnel syndrome which was not in the anatomical vicinity of the right shoulder. The examiner added that the symptoms are and were previously in the distribution of the ulnar nerve rather than the median nerve. The examiner additionally explained that there was no aggravation because carpal tunnel syndrome has nothing to do with the shoulder surgery and that there is no anatomical abnormality responsible for the reported numbness. After review of the record, the Board finds a rating in excess of 20 percent is not warranted for the right shoulder either prior to June 10, 2014, or from February 1, 2015. Clinical testing consistently revealed motion to at least 90 degrees including after repetition during these periods, and there is no indication that motion was ever reduced beyond that shown during testing. Notably, the Veteran has not reported that flares or repeated use resulted in motion so limited motion as to approximate midway between the side and shoulder during a relevant period the Veteran instead discusses limitation of overhead or above shoulder movement and medical examiners have not reported any such limitation or determined such a limitation would occur during flares or with repeated use. In sum, the Board finds the impairment associated with the right shoulder disability does not approximate the disability picture contemplated by the higher rating at any time during the period of the claim. The Board has considered whether there is any other schedular basis to assign a higher or separate rating under 38 U.S.C. § 4.71a but finds no basis for such a rating. Notably, VA assigned a separate rating for recurrent dislocation under Diagnostic Code 5202 in an August 2020 rating decision, and there is no evidence of any additional associated impairment which could warrant a separate rating. The Board has also considered entitlement to a separate rating based on the reported neurological symptoms of the right upper extremity but finds none is warranted. Although the Veteran has reported symptoms which she attributes to shoulder surgery (either in 2012 or 2014), the record does not suggest that the Veteran is competent to attribute the symptoms to the surgery or otherwise to the right shoulder disability, and the Board finds the September 2019 VA opinion is most probative in determining whether there is an associated neurological impairment. REASONS FOR REMAND In a September 2014 rating decision, VA granted service connection and assigned a 10 percent rating for plantar fasciitis of the left foot under Diagnostic Code 5276. In a June 2018 rating decision, VA again granted service connection and assigned a 20 percent rating effective April 30, 2018, for plantar fasciitis of the left foot under Diagnostic Code 5276. As a result of the June 2018 rating decision, the plantar fasciitis had two separate ratings under Diagnostic Code 5276 (one of 10 percent and one of 20 percent) effective from April 30, 2018. In a September 2019 rating decision, VA severed the additional 10 percent rating effective September 4, 2019, due to clear and unmistakable error. In its May 2019 decision, the Board identified the Board's May 26, 2017, remand as the "claim" for increased rating. For the relevant period, the plantar fasciitis has a total rating of 10 percent prior to April 30, 2018, 30 percent from April 30, 2018, to September 4, 2019, and 20 percent thereafter. The Board finds the record would benefit if additional medical information were associated with the record to clarify the current impairment associated with the plantar fasciitis. Although the record includes a September 2019 VA examination, the record does not reveal any findings or assessments specific to the plantar fasciitis. The matters are REMANDED for the following action: Afford the Veteran a VA examination to determine the current degree of severity of the service-connected plantar fasciitis. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Ensure that the examiner provides all information required for rating purposes, including pursuant to the "new" rating criteria (effective February 7, 2021). The examiner should provide an assessment of the impairment of the plantar fasciitis (i.e., mild, moderate, severe). The examiner should describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use. If there is no pain and/or no limitation of function, such facts must be noted in the report. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.