Citation Nr: 21074278 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-45 197 DATE: December 14, 2021 ORDER Entitlement to a rating higher than 20 percent for a right shoulder residual fracture is denied. Entitlement to an effective date of February 13, 2013, for the 20 percent increased rating for right shoulder fracture, is granted. Entitlement to service connection for depressive disorder is granted. REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial rating higher than 10 percent prior to July 13, 2021, and higher than 20 percent thereafter, for cervical strain, is remanded. REFERRED The issue of entitlement to a total disability rating based on individual unemployability, due to the Veteran's psychiatric symptoms, was raised in a November 2016 private psychiatric evaluation. This issue is referred to the Agency of Original Jurisdiction (AOJ), in order to provide the Veteran with the appropriate forms for filing a claim. FINDINGS OF FACT 1. The Veteran's right shoulder residual fracture has not manifested by range of motion limited to 25 degrees from the side. 2. Since February 13, 2013, the medical evidence indicates that the Veteran has had painful motion in his right shoulder. 3. The Veteran has a current diagnosis of depressive disorder that had its onset during his active duty service and has been continuously present from that time to the present. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for right shoulder residual fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5201. 2. The criteria for an effective date of February 13, 2013, but no earlier, for the increased 20 percent evaluation for right shoulder residual fracture have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to service connection for depressive disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to April 1983. This case comes to the Board of Veterans' Appeals (Board) from June 2014 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In August 2018, the Board remanded the issues listed above for further development. In an August 2021 rating decision, the Veteran's right shoulder disability was increased to 20 percent, and his cervical spine disorder was increased to 20 percent, effective July 13, 2021. In an October 2021 rating decision, the effective date for the increased 20 percent rating for the right shoulder disability was revised to July 19, 2013. Right Shoulder Disability The Veteran's right shoulder disability was initially assigned a noncompensable (0 percent) rating from July 22, 2005. In July 2013, the Veteran requested an increased rating for his right shoulder, and it was subsequently increased to 20 percent, effective July 19, 2013. The July 2021 VA examination found that the Veteran is left-handed, and his VA treatment records also indicate that he is left-handed. Therefore, his right shoulder is his minor extremity. 38 C.F.R. § 4.69. The Veteran's right shoulder disability has been rated under Diagnostic Code 5201, limitation of motion of the arm. Under Diagnostic Code 5201, a 20 percent rating is warranted when there is limitation of motion at shoulder level. A 20 percent rating is also assigned when motion is limited midway between the side and shoulder level. A 30 percent rating is assigned when there is limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The rating criteria for musculoskeletal disorders under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020)]. The revised version of Diagnostic Code 5201 did not alter the ratings assigned, but clarified that "at shoulder level" was for flexion or abduction limited to 90 degrees, and that "midway between the side and shoulder level" was flexion or abduction limited to 45 degrees. Id. Evaluations can also be assigned for traumatic arthritis and ankylosis of the scapulohumeral articulation under Diagnostic Code 5200, for impairment of the humerus under Diagnostic Code 5202, and for impairment of the clavicle or scapula under Diagnostic Code 5203. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. The Veteran was not at any time found to have malunion, fibrous union, nonunion, loss of head, or recurrent dislocation of the humerus; malunion, dislocation, or nonunion of the clavicle or scapula; or ankylosis. As none of these conditions were found to be present, these rating criteria will not be further discussed. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. Diagnostic Code 5003 states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id; see also 38 C.F.R. § 4.59. As the Veteran has already been assigned more than a 10 percent rating, these criteria will also not be further discussed. The Board has reviewed all of the evidence of record and finds that the 20 percent rating now assigned is appropriate, and no higher evaluation is warranted. The Veteran attended a VA examination in July 2021. He was found to have a residual fracture of the acromioclavicular joint. The Veteran reported having frequent right shoulder pain with overuse, which he treated with aspirin. He did not report any flare ups. Range of motion testing found flexion and abduction to 140 degrees, and internal and external rotation to 70 degrees. There was mild tenderness. The examiner found that the evidence procured from the Veteran did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with repeated use over time or flare ups. There was no atrophy, ankylosis, or instability. The Veteran did not have a clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition or any impairment of the humerus. The Veteran's VA treatment records show that he has regularly reported chronic shoulder pain and weakness, but he has never been found to have range of motion that was limited to 25 degrees from the side. He has frequently attended physical therapy, and imaging has found severe degenerative joint disease. In November 2016, he reported having some shoulder pain and difficulty raising his arms. In June 2020, the Veteran reported that he had centralized pain and slight loss of strength. He reported having no limitations in range of motion in his right shoulder. In September 2020, he reported having worse pain in the right shoulder, which was sharp and severe. He had full range of motion. In March 2021, the Veteran reported that he had stopped trying to do push-ups, but he was able to reach up with both shoulders. He stated that lifting a heavy object could cause pain, but he had minimal pain with daily activities. The preponderance of the evidence shows that the Veteran has reported symptoms of pain in his right shoulder, and the 20 percent rating he has already been assigned is based on the presence of painful motion. See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45. At no time has the Veteran ever been found to have range of motion limited to 25 degrees from the side. In the absence of such a finding, a higher rating of 30 percent is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. This takes into account the Veteran's limitations due to pain and repetitive motion, and his reports of painful motion that have already formed the basis for his 20 percent rating. The Veteran himself has not indicated that he has such severe limitation of motion, and he has reported to his VA treatment providers that he does not have limitation of motion in his right shoulder. The Board therefore does not find that a higher rating is warranted. The Board acknowledges that it previously remanded this issue in part to obtain a new VA examination for the Veteran's right shoulder, and it indicated that if feasible, a retrospective opinion should be obtained regarding the Veteran's range of motion with pain on passive use, in weight-bearing, and nonweight-bearing, pursuant to the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). While an actual retrospective opinion addressing this question was not obtained, the Board finds that this error is harmless, as the Veteran has not indicated having any further limitation of motion due to pain with passive use or weight-bearing, and he has already been assigned the 20 percent for the entire period on appeal. The Board therefore finds no evidence upon which such an opinion could be based which would affect the rating for the Veteran's right shoulder for this appeal period. The Veteran has also not indicated, at any time, that he had flare ups of his right arm disorder or periods of increased limitation of motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also finds that an earlier effective date of February 13, 2013 can be assigned for the Veteran's 20 percent rating for his right shoulder. Except when otherwise provided, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Claims for increased benefits may be awarded at the earliest date in which it is factually ascertainable that an increase in disability had occurred, if the claim is received within 1 year of the date such an increase occurred. Otherwise, the increase is effective the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). On February 13, 2013, the Veteran was seen for continued right shoulder bursitis with pain. It was noted that the pain had been going on for 8 months. The Board therefore accepts that this is evidence that it was factually ascertainable as of this date that the Veteran had painful motion in his right shoulder, which does indicate a worsening of his prior condition, since his shoulder had been rated as noncompensable, which would not even contemplate any painful motion. While the Board accepts that the Veteran also indicated the pain had been occurring for 8 months, this statement is too general for the Board to assign any earlier effective date than February 13, 2013. Even if taken at face value, it would indicate the pain started in June 2012, which is actually prior to the one-year period before the Veteran's July 2013 claim. There are no other records indicating a worsening prior to February 13, 2013, but later than July 13, 2012. The Board therefore finds that an effective date prior to February 13, 2013, for the 20 percent rating, is not warranted. In sum, the Board finds that an earlier effective date of February 13, 2013 can be assigned, but the preponderance of the evidence is against finding that a rating higher than 20 percent for right shoulder fracture is warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Acquired Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder, including depressive disorder, that had its onset during his active service, or that is aggravated by his service-connected disabilities. The Veteran has submitted multiple statements from his friends and family members who wrote that the Veteran had a significant personality change during his active duty service. They wrote that he had a cheerful and outgoing personality before he joined the military, but when he returned from service, he had a temper, was easily angered, drank heavily, was isolated, and had difficulty in social situations. Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Board affords the Veteran the benefit of the doubt and finds that his current diagnosis of depressive disorder did have its onset during his active duty service, and entitlement to service connection is warranted. The Veteran's VA treatment records show that he has been diagnosed with a psychiatric disorder, alternately found to be adjustment disorder, generalized anxiety disorder, and depressive disorder. He has reported symptoms of anxiety, sleep disturbance, anger, irritability, and isolation. Both the November 2016 private evaluation and the January 2021 VA examination found that the Veteran had a diagnosis of unspecified depressive disorder. The Veteran has also submitted probative medical evidence which relates his depressive disorder to service. The November 2016 private evaluation performed by a qualified psychologist found that the Veteran had symptoms that included depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, memory loss, flattened affect, difficulty adapting to stressful situations, and suicidal ideation. She discussed some of the Veteran's past medical records and his history, as well as the statements of friends and family regarding his changes during service. She concluded that the Veteran's depressive disorder more likely than not began in his military, that it continued uninterrupted to the present. She further found that it was aggravated by his service-connected right shoulder and cervical spine disabilities, and she discussed how his pain and physical condition impacted his mood, including causing low energy, low motivation, sleep disruption, and an increase in his irritability and anger. The Board therefore finds that that there is adequate medical evidence that the Veteran has a current diagnosis of depressive disorder, and a competent psychologist has related this disorder to the Veteran's service. This evaluation constitutes highly probative medical evidence, as it was based on an interview of the Veteran and an accurate understanding of his medical history, and it is supported by adequate rationale to support its findings. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The examination therefore provides adequate medical evidence to support the Veteran's claim. While the Veteran also attended a VA examination in January 2021, and that examiner found that the Veteran's depressive disorder was unrelated to any issues during service, the Board finds that this medical opinion was inadequate, and is therefore outweighed by the November 2016 private evaluation. The VA examiner found that the Veteran's depressive disorder was likely characterological in nature and related to interpersonal difficulties. He also found that it was less likely than not proximately due to or the result of his shoulder or cervical spine disorders, and that the conditions did not aggravate or impact his current mental disorder impression, but he did not provide any real rationale for that finding. The VA examiner also did not address the statements submitted by the Veteran's friends and relatives, including their assertions that the Veteran had a personality change during service and that he began manifesting the same symptoms he has currently ever since his return from service. The Board therefore finds that the preponderance of the probative medical evidence indicates that the Veteran has a diagnosis of depressive disorder which began in service and manifested continuously to the present. Entitlement to service connection for depressive disorder is granted. REASONS FOR REMAND Migraine Headaches In August 2018, the Board remanded this issue for a medical opinion on whether the Veteran's headaches were secondary to his right shoulder, cervical spine disabilities, or psychiatric disabilities. The examiner was specifically asked to address the private evaluation from H.S. and the medical articles submitted by the Veteran. At a December 2020 VA examination, the Veteran reported having headaches across the forehead, with blurry vision, vision changes, and constant strain pain. He said that they cause him to have panic attacks and anxiety, and that they occur more frequently now that he is staying home and watching TV or reading. He was found to have a current diagnosis of tension headaches. The examiner wrote that the Veteran's headaches started in approximately 2014, at the same time as his documented elevated blood pressure with associated headaches, and they had since worsened with increased eye strain and increased TV, reading, and computer usage during the covid pandemic. She wrote that the condition was less likely than not incurred in or caused by service. She also wrote that it was not secondary to a right shoulder, cervical spine, or psychiatric disability and as rationale wrote that headaches can be triggered by multiple etiologies and risk factors, and in the Veteran's case, he was noted to have elevated blood pressure at the time of initial headache diagnosis, and his recent increase in headaches appeared to be related to eye strain, and was unrelated to the above listed conditions. She then provided the same rationale for why headaches were "less likely than not ... an aggravation of the" conditions. The Board does not find this to be an adequate rationale, as it did not actually explain why there had been no aggravation of the Veteran's headaches, nor did it address the contents of the September 2017 Disability Benefits Questionnaire completed by private physician H.S., which indicated that psychological stress, shoulder pain, and neck pain had aggravated the Veteran's headaches, nor did it consider the medical articles submitted by the Veteran, such as "A Pain in the Neck: Review of Cervicogenic Headache and Associated Disorders," which found a relationship between neck pain and headache disorders. There has therefore not been substantial compliance with the Board's prior remand directives, and this issue is remanded in order to obtain an adequate medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). Sleep Apnea In August 2018, the Board also remanded this issue for a medical opinion on whether the Veteran's sleep apnea was secondary to his right shoulder, cervical spine disabilities, or psychiatric disabilities, including discussion of the private evaluation from H.S. and the medical articles submitted by the Veteran. The Veteran attended a VA examination in December 2020. He had a current diagnosis of obstructive sleep apnea. The examiner wrote that the Veteran's sleep apnea was less likely than not proximately due to or the result of a service-connected condition, explaining that sleep apnea occurred due to obstruction of the airway while sleeping due to relaxation of the muscles of the throat with risk factors including excess weight, narrowed airway, hypertension, nasal congestion, smoking, diabetes, male gender, family history, and asthma, and it was unrelated to the claimed service-connected conditions. She wrote that they were unrelated either for etiology or aggravation. The Board finds that this is not an adequate opinion regarding aggravation of the claimed disorder. The examiner did not actually provide any rationale for why the Veteran's sleep apnea was not aggravated by his sleep apnea, nor did she address the contents of the September 2017 private Disability Benefits Questionnaire, or the article submitted on the association of sleep apnea and chronic pain, as was requested by the Board's prior remand. This issue is therefore again remanded in order to obtain an adequate medical opinion. See Stegall, 11 Vet. App. at 271. Cervical Spine Disability The Veteran is appealing the initial 10 percent rating that has been assigned from July 19, 2013 to July 12, 2021, and the 20 percent rating that has been assigned from July 13, 2021. In August 2018, the Board remanded this issue in order to afford the Veteran with new VA examinations of the right shoulder and cervical spine, including discussion of the functional impairment, based on degrees of motion lost due to pain and flare ups. The examiner was also asked to provide a retrospective commentary on the Veteran's impairment of the right shoulder and cervical spine disabilities throughout the appeal period, to include the prior VA examinations performed in conjunction with this claim, and to comment on the range of motion movements that would be painful on passive use, in weight-bearing, and nonweight-bearing. The Board notes that the prior remand's request for an estimation of the Veteran's range of motion with weight-bearing and nonweight-bearing was inappropriate, as the cervical spine is not a weight bearing joint. The Veteran attended VA spine examinations in December 2020 and July 2021. An addendum opinion was obtained in September 2021 to retrospectively address the Veteran's level of impairment. The examiner provided summaries of the Veteran's past medical evaluations, and wrote that there were no documented evaluations during the other years on appeal. Unfortunately, this opinion has missed the point of the Board's prior remand request. The Board has the prior VA examinations in the claims file, and therefore merely repeating what is contained in them is duplicative information. The Board had previously requested the retrospective opinions due to the recent holdings in the Court of Appeals for Veterans Claims cases Correia, 28 Vet. App. 158, and Sharp, 29 Vet. App. 26. The Board was seeking estimations of limitation of motion that have not been previously reported, such as the limitation of motion during flare ups, for the entire appeal period, which is 2013 to the present. Unfortunately, the September 2021 opinion did not even attempt to address these questions, nor did it provide any explanation of why such an estimation could not be provided. Unlike the right shoulder issue discussed above, for this issue, the Veteran has been given a staged rating, and the Board finds that it should be addressed whether the effective date assigned for the 20 percent increased rating is appropriate, by considering his symptoms earlier in the appeal period. The Veteran also has reported, at the March 2015 VA examination, that he does have flare ups of his neck pain. This issue is therefore again remanded, so that an adequate retrospective opinion can be obtained, or a response can be provided of why such an opinion is not possible. The matters are REMANDED for the following action: 1. Obtain all VA treatment records since August 2021. 2. Obtain an addendum medical opinion regarding the nature and etiology of the Veteran's headache disorder. If the examiner finds that a new examination must be held prior to providing an opinion, schedule such an examination. The examination may be held via telehealth during social distancing restrictions. The examiner must be provided access to the Veteran's entire claims file and must specify in the report that the claims file has been reviewed. The examiner should then discuss: Is it as likely as not (a 50/50 probability, or greater) the Veteran's headache disorder has been either a) caused or b) aggravated by his service-connected cervical spine disorder, right shoulder disorder, or depressive disorder? The examiner must discuss the September 2017 Disability Benefits Questionnaire completed by private physician H.S., which indicated that psychological stress, shoulder pain, and neck pain had aggravated the Veteran's headaches, as well as the articles submitted by the Veteran: "A Pain in the Neck: Review of Cervicogenic Headache and Associated Disorders," and the two articles relating psychiatric disorders to headaches. A complete, well-reasoned rationale must be provided for all conclusions and opinions. If the requested opinions cannot be rendered without resorting to speculation, the examiner must explain why. 3. Obtain an addendum medical opinion regarding the nature and etiology of the Veteran's sleep apnea. If the examiner finds that a new examination must be held prior to providing an opinion, schedule such an examination. The examination may be held via telehealth during social distancing restrictions. The examiner must be provided access to the Veteran's entire claims file and must specify in the report that the claims file has been reviewed. The examiner should then discuss: Is it as likely as not (a 50/50 probability, or greater) the Veteran's sleep apnea has been either a) caused or b) aggravated by his service-connected cervical spine disorder, right shoulder disorder, or depressive disorder? The examiner must discuss the September 2017 Disability Benefits Questionnaire completed by private physician H.S., which indicated that depression, shoulder pain, and neck pain had aggravated the Veteran's sleep apnea, as well as the articles submitted by the Veteran: "The Association of Obstructive Sleep Apnea and Chronic Pain" and "Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort." A complete, well-reasoned rationale must be provided for all conclusions and opinions. If the requested opinions cannot be rendered without resorting to speculation, the examiner must explain why. 4. Obtain an addendum medical opinion regarding the severity of the Veteran's cervical spine disorder from July 19, 2013 to July 12, 2021. The examiner must be provided access to the Veteran's entire claims file and must specify in the report that the claims file has been reviewed. Based on a review of the medical evidence, including the Veteran's lay statements, VA examinations, and all treatment records, the examiner should discuss: a) For the period from July 19, 2103 to July 12, 2021, please provide an estimate of the Veteran's range of motion in the cervical spine during flare ups or with repetitive motion. If it is not possible to provide such an estimate, is it at least as likely as not that the range of motion limitations shown at the July 2021 VA examination were present earlier in the appeal period? b) Were the range of motion findings given at the March 2015 VA examination for active or passive motion? Would the findings regarding the Veteran's range of motion have differed if measured in both active and passive motion? And if so, how? c) For the period from July 19, 2103 to July 12, 2021, did the Veteran have muscle spasm or guarding severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis? If the requested opinions cannot be rendered without resorting to speculation, the examiner must explain why providing such estimates is not possible. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.