Citation Nr: 21069550 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-02 718 DATE: November 18, 2021 ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder is granted. A higher 30 percent rating for a left shoulder disability is granted. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his acquired psychiatric disorder is etiologically due to his active military service. 2. The Veteran's left shoulder flexion is limited to 40 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include major depressive disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a higher 30 percent for a left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army with active duty service from February 1973 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and August 2014 rating decisions. The Veteran's claim was previously before the Board in March 2018, where the Board denied the Veteran's claims. The Veteran then appealed this decision to the United States Court of Appeals for Veterans Claims (Court) where the Court vacated the Board's decision and remanded the claim pursuant to an August 2019 Memorandum Decision. The Board subsequently remanded the claim for further development in February 2020, and again in April 2021 for further development. Acquired Psychiatric Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disability. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The Veteran asserts that he has an acquired psychiatric disability which was caused or incurred in service, specifically the Veteran has cited several traumatic events that occurred while on active duty service. The Veteran underwent a VA examination in June 2021. The examiner found the Veteran to have a current diagnosis of a major depressive disorder. Therefore, the first element of a service connection claim has been met. Regarding the second element of a service connection claim, the June 2021 examiner noted the Veteran to experience several instances of harassment as well as traumatic events that occurred during service. This includes being attacked by a Sergeant as well as several instances of harassment from a fellow soldier. Additionally, a private opinion submitted by the Veteran dated October 2003 further established these same traumatic events that occurred during service. Therefore, the second element of a service connection claim have been met. Regarding a causal relationship between the current acquired psychiatric disability and the Veteran's service, the Board finds that such relationship does exist. The Veteran submitted a private opinion dated October 2003 and February 2012 that both separately concluded that the Veteran's psychiatric disorder was the result of his military service. Specifically, both examiners independently found that the Veteran's psychiatric disability is the result of the same events discussed by the June 2021 VA examiner. Conversely, in June 2021, a VA examiner ultimately concluded that although the Veteran currently has a diagnosis of major depressive disorder, it is not caused by the noted in-service stressor. The examiner noted that the Veteran did not seek treatment until 1998, and, therefore, the examiner concluded that there was no factual evidence that the Veteran suffered from a mental diagnosis prior to 1998. The Board finds the evidence to be in relative equipoise. If the evidence is supportive or is in relative equipoise, then the veteran prevails. See 38 C.F.R. § 3.102. Accordingly, service connection for an acquired psychiatric disorder is granted. 38 C.F.R. § 3.304. Left Shoulder Disability Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. The Veteran has been noted to be ambidextrous. Further, the record shows that the Veteran's left shoulder is the more severely injured shoulder; therefore, the Veteran's left shoulder will be considered the dominant shoulder for rating purposes. The Veteran is currently assigned a 20 percent rating for his left shoulder under 38 C.F.R. § 4.71a, DC 5201. Under this code, limitation of motion of the arm at shoulder level or midway between side and shoulder warrants a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 40 percent rating for the major extremity. 38 C.F.R. § 4.71a, DC 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 The Veteran is assigned a 20 percent rating under DC 5201. As discussed above, a higher 30 percent rating is assigned when motion of the major arm is limited at shoulder level or midway between side and shoulder. The Veteran underwent VA examinations in May 2014, December 2020, and July 2021. The July 2021 examination noted left shoulder flexion endpoint at 40 degrees. Additionally, the examiner noted no shoulder instability, dislocation or labral pathology. Further, the examiner also noted no recurrent dislocation of the glenohumeral joint. Based on these findings, a higher 30 percent rating is warranted because range of motion of the left arm was not limited to 40 degrees in flexion. Lastly, as the examiner noted no shoulder instability, a separate rating is not appropriate. REASONS FOR REMAND TDIU The Agency of Original Jurisdiction (AOJ) must assign an initial rating and effective date for the above grant of service connection. The claim for a TDIU cannot be adjudicated until that occurs. (Continued on the next page) The matter is REMANDED for the following action: After implementing the grant of service connection, and any additionally indicated development has been completed, readjudicate the issue of entitlement to a 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 Jorge Barroso, 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.