Citation Nr: 21076659 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-18 209 DATE: December 27, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to a rating more than 20 percent for impingement of the right shoulder with post traumatic degenerative joint disease for the ratings period before April 26, 2016, is denied. Entitlement to a rating more than 20 percent for impingement of the right shoulder with post traumatic degenerative joint disease for the ratings period from August 1, 2016 to November 9, 2018 is denied. Entitlement to a 30 percent evaluation for impingement of the right shoulder with post traumatic degenerative joint disease is granted for the rating period from March 1, 2019. Entitlement to a rating more than 30 percent for impingement of the right shoulder with post traumatic degenerative joint disease is denied for the rating period from March 1, 2019. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disease or injury, is remanded. FINDINGS OF FACT 1. Sleep apnea was manifest in service. 2. For the rating period prior to April 26, 2016, the Veteran's impingement of the right shoulder with post traumatic degenerative joint disease was manifested by pain and limitation of motion of the arm no greater than the shoulder level. 3. For the rating period from August 1, 2016 to November 9, 2018, the Veteran's impingement of the right shoulder with post traumatic degenerative joint disease was manifested by pain and limitation of motion of the arm no greater than the shoulder level. 4. From March 1, 2019, the Veteran's impingement of the right shoulder with post traumatic degenerative joint disease was manifested by pain, weakness, and limitation of motion of the arm midway between the side and shoulder level. CONCLUSIONS OF LAW 1. Sleep apnea was incurred in service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. For the rating period prior to April 26, 2016, the criteria for a disability rating more than 20 percent for impingement of the right shoulder with post traumatic degenerative joint disease are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. 3. For the rating period from August 1, 2016 to November 9, 2018, the criteria for a disability rating more than 20 percent for impingement of the right shoulder with post traumatic degenerative joint disease are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. 4. Effective March 1, 2019, the criteria for a 30 percent disability rating, but no higher, for impingement of the right shoulder with post traumatic degenerative joint disease are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2000 to December 2001. He testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2019. A transcript of the hearing is of record. During the hearing, the VLJ clarified the issues on appeal, elicited relevant testimony from the Veteran, identified potential evidentiary defects, asked if there was outstanding evidence, and held the file open for 60 days to allow submission of additional evidence. Such actions comply with 38 C.F.R. § 3.103. The Board remanded these matters in April 2020 to provide the Veteran a new VA examination for his right shoulder, to provide the Veteran with VA examinations and opinions for the claims for service connection for an acquired psychiatric disorder and sleep apnea, and to provide the Veteran an opportunity to submit private mental health treatment records. The claims file reflects the Veteran was provided VA examinations in June and July 2020, with the requested opinions provided in June, July, and November 2020. Regarding private treatment records, the Veteran and his representative were mailed a development letter in April 2020 asking the Veteran to complete a VA Form 21-4142 for any private mental health treatment. The Veteran did not respond to the request and did not submit any VA Form 21-4142. Given the foregoing, we find the Board's April 2020 remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The April 2020 decision also remanded a claim for entitlement to service connection for a left shoulder disability claimed as secondary to the Veteran's service-connected rights shoulder. In December 2020 the Agency of Original Jurisdiction (AOJ) granted service connection for left shoulder degenerative arthritis status post labral tear status post-arthroscopy with labral debridement, subpectoral tenodesis and open distal clavicle excision as secondary to the Veteran's service-connected right shoulder. This represented a complete grant of the benefits previously sought on appeal, and the issue of entitlement to service connection for a left shoulder disability is no longer on appeal. The December 2020 rating decision also increased the rating for the Veteran's right shoulder disability from 20 percent to 30 percent, effective July 9, 2020. The AOJ issued a Supplemental Statement of the Case (SSOC) in December 2020 denying a rating more than 20 percent for the right shoulder before July 9, 2020 and denying a rating in excess of 30 percent thereafter. As this did not represent a complete grant of the benefits sought on appeal, the issue of an increased rating for the right shoulder remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The SSOC also denied service connection for an acquired psychiatric disorder and obstructive sleep apnea. These matters now return to the Board for further appellate consideration. 1. Entitlement to service connection for obstructive sleep apnea. The Veteran seeks service connection for obstructive sleep apnea that he contends first manifested during his service. Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service treatment records do not show symptoms, complaints, treatments, or diagnoses of sleep apnea. The Veteran was treated during service for asthma and reactive airway disease. A July 2001 periodic examination shows clinically normal evaluations of the Veteran's mouth, throat, and nose, although asthma was noted. A July 2001 report of medical history shows the Veteran reported the asthma but denied shortness of breath, fatigability, or frequent trouble sleeping. The Veteran separated in December 2001, and there is no separation examination. At an April 2013 VA mental health evaluation, the Veteran reported he might have sleep apnea because his wife had observed times when he stopped breathing while sleeping. He had a sleep consultation in December 2014 where he reported difficulty falling asleep, maintaining sleep, and multiple awakenings. He snored, had witnessed apneas, reported unrefreshed when he woke up, and daytime sleepiness. The noted impression was obstructive sleep apnea. The Veteran underwent the sleep study in March 2015 and was diagnosed with obstructive sleep apnea. In July 2015 the Veteran submitted a buddy statement in support of his claim from D.P., who reported he had served with the Veteran during his service and that he had to wake the Veteran up several times due to loud snoring and thinking he had stopped breathing due to long pauses between each breath. The Veteran resubmitted this statement in August 2016 along with another statement from a V.M. stating that she had known the Veteran since 2013 and had observed loud snoring and long periods between breaths while sleeping and that she often tried to wake him up to see if he was still breathing. The Veteran was provided a VA examination for sleep apnea in July 2020. He stated that around 2000 he developed witnessed respiratory pauses reported by other service members and his wife. He reported that he had developed loud snoring during service, often woke up choking in his sleep, had occasional palpitations at night, and felt tired and drowsy in the morning and during the day. The examiner noted the March 2015 sleep apnea and diagnosed obstructive sleep apnea. The examiner concluded that the Veteran's sleep apnea was at least as likely as not incurred in service. The examiner noted that, while the service records are silent for complaints or diagnosis of sleep apnea or other sleep disturbances, the lay statements by the Veteran and others indicate that the symptoms of sleep apnea were present during active duty. The examiner also cited "corporate reward and rating data" dated September 1, 2007 that was positive for a claim for sleep apnea. The examiner concluded that the sleep apnea symptoms had been competently reported by the Veteran and others, that the condition was claimed as early as 2007 indicating that the sleep apnea was present for many years prior to the formal diagnosis in 2015. The AOJ requested an addendum opinion in part to clarify the examiner's reliance on the August 2016 lay statements from V.M. and D.P., and to clarify how a claim being filed as early as 2007 established an onset during the Veteran's service. We note that the AOJ requested that the lay statement from V.M. be excluded from review and concluded that the statement from D.P. did not contain minimum information requirements required for a valid lay statement. An addendum opinion was provided in November 2020. The examiner stated that the lay statement from V.K. could be excluded from review as she indicated she had only known the Veteran since 2013. The examiner also reiterated that the diagnosis of sleep apnea can be changed to 2007 as the Veteran claimed the condition, although the sleep study report was only available from 2015. The examiner noted that it was not clear from the records if a sleep study was performed in 2007. The examiner clarified that she previously provided a positive opinion based on the lay statement from D.P., the Veteran's report of onset of symptoms during service, and the fact the condition was claimed in 2007. Although the claim was filed in 2007, six years after the separation, sleep apnea symptoms may be present for many years prior to diagnosis. The examiner acknowledges that without a sleep study during service, the service connection for sleep apnea cannot be established without resorting to mere speculation, but that she had taken into account the Veteran's competent report regarding onset of symptoms during service. Here, service treatment records do not show sleep apnea or complaints of any related symptoms. Although there was not a separation examination provided when the Veteran separated in December 2001, the July 2001 periodic examination and report of medical history do not reflect any relevant complaints or diagnoses. VA treatment records suggest the Veteran first reported symptoms of sleep apnea in approximately April 2013. The Board has considered the lay statements of record. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay people are competent to testify to visible or otherwise observable symptoms of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In particular, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Here, the Veteran is competent to state he had difficulty sleeping during service that has continued thereafter. Loud snoring, fatigue, daytime sleepiness, and suddenly waking up are all lay observable symptoms easily described by a layperson. Furthermore, the buddy statement from D.P. is probative evidence in support of the claim. D.P. contends he served with the Veteran, witnessed the Veteran's snoring and apnea symptoms, and attempted to wake the Veteran up multiple times when the Veteran appeared to stop breathing when sleeping. D.P. is not asserting knowledge beyond the realm of a lay person; the Veteran's snoring habits and difficulties breathing while sleeping are lay observable. D.P. is not an interested party in this matter and the statement is aligned with the Veteran's own statements regarding the onset and nature of his sleep problems during service, particularly the Veteran's statements made during the July 2020 VA examination. The Board acknowledges that the lay statements are inconsistent with the service treatment records, which show no indication of sleep apnea. The Veteran has reported that he did not know what sleep apnea was during his service or that anything was wrong with him. For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Id. at 304. The July and November 2020 opinions are of lessened probative value. Both opinions rely in part on an inaccurate factual premise. The Veteran did not file a claim for service connection for sleep apnea in September 2007, and there is otherwise no indication in the claims file that any such claim was filed at VA or through any other agency or organization. There are no records titled "corporate reward and rating data" associated with the claims file, and it is unclear where or how the examiner would have obtained any such information. Treatment records show the Veteran first reported symptoms consistent with sleep apnea to VA providers in April 2013, and obstructive sleep apnea was formally diagnosed in March 2015 following a sleep study. However, in both the July 2020 opinion and the November 2020 addendum, the examiner makes clear that she did not rely solely on a non-existent September 2007 claim in rendering her opinions. The examiner relied heavily on the Veteran's lay statements and the supporting statement from D.P., which she determined were credible evidence of sleep apnea symptoms during the Veteran's service. The examiner also acknowledged the absence of symptoms in the service treatment records. In the November 2020 addendum she appears to have acknowledged that the actual in-service presence of sleep apnea would be speculative without a sleep study during service, but that she rendered her positive opinion after considering the Veteran's competent report regarding onset of symptoms during service. Ultimately, the Board is presented with conflicting evidence. Service treatment records are absent any symptoms or diagnoses relating to obstructive sleep apnea. The Veteran has submitted competent lay statements from himself and a fellow servicemember detailing his problems with sleeping during service, including loud snoring and that he stopped breathing while sleeping. He first reported symptoms relating to sleep apnea to VA doctors in April 2013 and was diagnosed in March 2015, many years after separation from service. The only VA opinions available are positive, and while the opinions rely heavily on competent lay evidence, they also rely in part on factual inaccuracies involving a 2007 claim that does not exist. The lay evidence is inconsistent with the negative service treatment records and generally silent history for sleep apnea until 2013. However, the lay evidence is competent. The two VA nexus opinions are not perfect and contain a factual error, but balance the lay statements with the negative medical records to generally conclude it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea began during his service. The Veteran has stated that he was generally unaware that he had sleep apnea, or of what sleep apnea actually was, for many years after he separated from service. In addition, the Board does not wish to remand this claim again to obtain new VA opinions and potential negative development. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (cautioning against multiple remands for the sole purpose of developing negative evidence against a claim). Given the foregoing, the Board finds the evidence of record in equipoise as to whether the Veteran's obstructive sleep apnea was incurred during service. Accordingly, the benefit-of-the-doubt doctrine applies, and the claim for service connection for obstructive sleep apnea is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. RATINGS 1. Increased ratings for impingement of the right shoulder with post traumatic degenerative joint disease (major). The Veteran seeks an increased rating for his service-connected impingement of the right shoulder with post traumatic degenerative joint disease. The Veteran filed the instant increased rating claim in April 2016. The Veteran was assigned temporary 100 percent evaluations for the right shoulder from April 29, 2016 through August 1, 2016, and again from November 9, 2018 through March 1, 2019. The temporary 100 percent evaluations were assigned pursuant to 38 C.F.R. § 4.30 for right shoulder surgeries. The Board will not review or disturb the temporary 100 percent ratings themselves. During the period relevant to the appeal the right shoulder was otherwise rated 20 percent until July 9, 2020, when the rating was increased to 30 percent. The Veteran seeks higher evaluations. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the Veteran's right shoulder is rated under hyphenated Diagnostic Code 5003-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5003 is for degenerative arthritis and instructs for evaluation on the basis of limitation of motion of the affected joints. Diagnostic Code 5201 pertains to limitation of motion of the arm and provides a 20 percent evaluation for limitation of motion of the major arm to shoulder level, a 30 percent evaluation for limitation midway between the side and shoulder level, and a 40 percent evaluation for limitation to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Veteran's right arm is his dominant (major) arm. Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38C.F.R. §4.71a were amended, including Diagnostic Code 5201. If a law or regulation changes during a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by the amendment's effective date. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Effective February 7, 2021, the new version of Diagnostic Code 5021 provides a 20 percent evaluation for limitation of motion of the major arm to the shoulder level (flexion and/or abduction limited to 90 degrees); a 30 percent evaluation for limitation of motion of the major arm to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees); and a 40 percent evaluation for flexion and/or abduction limited to 25 degrees from the side. Normal forward elevation, or flexion, of the shoulder is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. a. Rating higher than 20 percent before April 29, 2016, and from August 1, 2016 to November 9, 2018. The Veteran's right shoulder disability is evaluated 20 percent before April 29, 2016, and from August 1, 2016 to November 9, 2018. The currently assigned 20 percent evaluations are consistent with motion of the major arm limited to shoulder level under Diagnostic Code 5021. After reviewing the evidence, the Board concludes that a rating in excess of 20 percent is not warranted for the ratings period before April 29, 2016, then from August 1, 2016 to November 9, 2018. VA treatment records show ongoing complaints of persistent pain in the right shoulder with labral pathology. At a March 2016 VA orthopedic surgical consultation, right shoulder range of motion was full, with tenderness on palpation of the acromioclavicular joint, biceps tendon, and Codman's point. There was pain with load and shift without subluxation. VA physical therapy notes state that right shoulder flexion was to 100 degrees on March 27, 2016. The Veteran underwent a right shoulder arthroscopy with subpectoral biceps tenodesis and labral repair surgery on April 29, 2016. The Veteran filed the increased rating claim in April 2016, also seeking a temporary 100 percent evaluation following surgery on his right shoulder. He was provided a VA shoulder examination in June 2016, but his right shoulder was not examined because he was still recovering from a surgery performed in April 2016. In a June 2016 rating decision, the Regional Office denied a rating more than 20 percent and denied a temporary 100 percent evaluation. Regarding the right shoulder, he reported that the shoulder had worsened over time, had required surgery, and that he was still in physical therapy recovering from the surgery. VA treatment records reflect the Veteran had physical therapy for his right shoulder between April 29, 2016 and August 1, 2016 when the 100 percent rating is in effect. August 2016 physical therapy records show the Veteran partial active range of motion measurements, and that right shoulder flexion was to 110 degrees, abduction to 110 degrees, and external rotation was to 70 degrees with pain. A September 2016 physical therapy note shows right shoulder flexion was to 156 degrees, abduction to 116 degrees, external rotation to 80 degrees, and internal rotation to the T8 vertebrae. He was discharged from physical therapy for the right shoulder in September 2016. Subsequent records show ongoing reports of right shoulder pain. He was provided a VA examination for his right shoulder in March 2018. The Veteran reported constant pain, that he could not lift anything heavy, and that the shoulder comes out of place. On physical examination right shoulder flexion was limited to 100 degrees, abduction to 100 degrees, external rotation to 50 degrees, and internal rotation to 75 degrees. He was unable to reach overhead. There was pain on flexion and abduction and tenderness on palpation. Repetitive use testing was not performed due to fear of pain. The examiner determined it was not possible to estimate loss of range of motion with repeated use over time or with flareups without directly observing function under those conditions. Right shoulder muscle strength was noted as 4/5 with no atrophy. The examiner noted no pain on weightbearing or non-weightbearing, with pain on both passive and active ranges of motion. No instability was noted on examination. A March 2018 rating decision granted a 100 percent evaluation effective April 29, 2016 based on surgery requiring convalescence and assigned a 20 percent evaluation effective August 1, 2016. We note that the rating decision also granted service connection for surgical scars on the Veteran's right shoulder. VA treatment records after the March 2018 examination primarily show treatments for the left shoulder with the Veteran continuing to report pain in the right shoulder. A June 2018 MRI on the right shoulder showed an anterior interior labral tear with laxity, and the Veteran reported pain with a loose feeling. Range of motion was described as good during a July 2018 orthopedic consultation. On November 9, 2018, the Veteran underwent right shoulder surgery for orthoscopic stabilization with labral repair and rotator cuff interval closure. Here, the most probative evidence shows flexion and abduction of the right shoulder to 100 degrees each. A 30 percent evaluation for the Veteran's right (major) shoulder requires the arm to be functionally limited to halfway between the side and shoulder level, which would be 45 degrees. Such was not shown on any of the relevant reports. Pain did not functionally limit motion to midway between the side and shoulder level or less. Furthermore, pain is contemplated in the assigned 20 percent evaluation. Limitation of the major upper extremity to shoulder level, or 90 degrees, is explicitly contemplated by a 20 percent rating under Diagnostic Code 5201. The March 2018 VA examination report is of significant probative value as it was based on thorough examination of the Veteran and further does not reveal limitation of motion to midway between the side and shoulder level or less. Although the Veteran was unable to perform repetitive use testing due to fears of increased pain, we are left with no basis to assume that the Veteran's range of motion would have been limited to midway between his side and shoulder level or less. The only recorded range of motion measurements show flexion and abduction to 100 degrees, with external rotation to 50 degrees and internal rotation to 75 degrees. The Board acknowledges that the Veteran's right shoulder was not tested during the earlier June 2016 VA examination because he had surgery on the right shoulder on April 29, 2016. However, this level of impairment is considered and compensated by the temporary 100 percent evaluation in effect from the date of the surgery until August 1, 2016. Although the Veteran's right shoulder was not examined by a VA examiner before or immediately after the April 2016 surgery, the March 2016 VA orthopedic consultation indicated right shoulder range of motion was full albeit painful, and physical therapy records suggest flexion was limited to 100 degrees in March 2016. The available medical records do not suggest motion of the right arm was limited to midway between the side and shoulder, which would be 45 degrees. As explained above, painful motion is contemplated by the currently assigned 20 percent evaluation. While the Board has considered the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion, in accordance with 38 C.F.R. § § 4.40, 4.45, 4.59, the totality of the evidence persuades the Board that no factors are present to any appreciable degree that would support or approximate a higher rating. Finally, the Board observes there is no ankylosis of the scapulohumeral articulation, nor is there flail joint, false flail joint or fibrous union of the humerus. Malunion of the humerus and recurrent dislocations of the right scapulohumeral joint have not been demonstrated by the VA examinations or other medical records available during these periods on appeal. There is not malunion with moderate or marked deformity. Consequently, higher ratings are not warranted based on Diagnostic Codes 5200 for ankylosis or 5202 for other impairment of humerus. As limitation of right shoulder motion was greater than midway between the side and shoulder level, a higher rating is not warranted as to the Veteran's service-connected right shoulder disability before April 29, 2016, and from August 1, 2016 to November 9, 2018. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. b. From March 1, 2019. A March 2019 rating decision assigned a temporary 100 percent evaluation effective November 9, 2018, the date he had another right shoulder surgery requiring convalescence. A 20 percent evaluation was assigned effective March 1, 2019 and is in effect from March 1, 2019 until July 9, 2020, which is the date of the Veteran's most recent right shoulder VA examination. From July 9, 2020, the right shoulder is rated 30 percent disabling. The Board finds that a uniform 30 percent evaluation, but no higher, is warranted for the Veteran's right shoulder beginning March 1, 2019. As noted above, the Veteran had surgery on his right shoulder on November 9, 2018 and a temporary 100 percent evaluation was assigned from that date until March 1, 2019. The Veteran testified at a Board hearing in November 2019, where he reported that his right shoulder had been getting worse and prohibited him from doing certain things. During the hearing he could raise his arm a little below shoulder level but reported that the more he used the right arm the less he could raise it. He estimated that range of motion was reduced to about halfway between his side and shoulder with use. The Veteran was provided a new VA examination for the right shoulder in July 2020. He reported that his right shoulder hurt daily, that he had weakness in the arm and difficulty raising his arm. He reported that he could not raise his arm above the shoulder, reach behind his back, lift or carry heavy things, perform swinging motions, or exercise. He also reported the shoulder popped and dislocated. Flareups consisted of increased pain and required rest. Initial range of motion testing showed flexion was limited to 65 degrees, abduction to 55 degrees, and external and internal rotation to 0 degrees. All ranges had pain, and there was tenderness on palpation. The examiner noted pain with weightbearing and non-weightbearing. The Veteran could not perform repetitive use tests due to severe pain. Regarding repeated use over time, the examiner estimated flexion would be to 60 degrees and abduction to 50 degrees due to pain, fatigue, weakness, and lack of endurance. The examiner estimated flareups would cause right shoulder flexion to fall to 55 degrees and abduction to 45 degrees. After considering the foregoing, the Board finds that a 30 percent evaluation, but no higher, is warranted beginning March 1, 2019, the date the temporary 100 percent evaluation expired following the Veteran's most recent right shoulder surgery. The Veteran was not examined when the 20 percent evaluation for the right shoulder was assigned following the expiration of the temporary 100 percent evaluation. There are essentially no medical records relating to the Veteran's right shoulder for the period from March 1, 2019 until he testified at the Board hearing in November 2019. The July 2020 VA examination contains the most probative range of motion measurements for the Veteran's right shoulder following the expiration of the temporary 100 percent evaluation on March 1, 2019. The examiner estimated abduction would be limited to 45 degrees during flareups, which is midway between the side and shoulder level. At the November 2019 hearing the Veteran testified that range of motion in his right shoulder was restricted to about halfway between his side and shoulder after use. Such a level of impairment was then confirmed during the July 2020 VA examination, wherein the examiner estimated abduction would be limited to 45 degrees, or midway between the side and shoulder level. The Veteran is competent to report his level of impairment, and given the corroborating medical evidence, we find the Veteran's reports as to his functional limitation provided during the November 2019 Board hearing were credible. Given the Veteran's credible testimony, the July 2020 VA examination showing flareups limited motion of the right arm to midway between the side and shoulder level, and the absence of more probative evidence during this period, the Board concludes that a 30 evaluation is warranted for limitation of motion of the right (major) arm midway between the side and shoulder level. Stated differently, the Board concludes that the shoulder did not become magically worse on the day of an adequate examination and that the Veteran's reports during the hearing were merely confirmed by the VA examination. A 40 percent evaluation under Diagnostic Code 5021 would require motion be limited to the functional equivalent of 25 degrees or less from the side. Such has not been demonstrated at any time during the period on appeal. The pertinent physical findings consist of decreased ranges of motion, pain with movement, and weakness. Flareups limit the Veteran's right shoulder to 45 degrees of abduction. However, limitation of the major upper extremity to midway between the side and shoulder level is explicitly contemplated by the assigned 30 percent rating under Diagnostic Code 5201. The rating contemplates pain on motion and is consistent with limitation of motion of the major arm to 45 degrees. While the Board has considered the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion, in accordance with 38 C.F.R. § § 4.40, 4.45, 4.59, the totality of the evidence persuades the Board that no factors are present to any appreciable degree that would support or approximate a higher rating. The Board finds that the Veteran's disability did not meet or more nearly approximate the criteria for a 40 higher rating. The Board notes the changes to the Schedule of Ratings for the Musculoskeletal System effective February 7, 2021. These changes do not result in any higher rating for the Veteran's right shoulder. The changes, in relevant part, clarify that limitation of motion of the arm under Diagnostic Code 5201 warrants a 30 percent rating for the major arm with flexion and/or abduction limited to 45 degrees, and a 40 percent rating for the major arm with flexion and/or abduction limited to 25 degrees from the side. The manifestations present from March 1, 2019 are consistent with a 30 percent evaluation under the new or old criteria. Finally, the Board observes there is no ankylosis of the scapulohumeral articulation, nor is there flail joint, false flail joint or fibrous union of the humerus. The Board notes that frequent dislocations of the scapulohumeral joint were noted on the July 2020 VA examination. However, no guarding of movement was noted, which is required for an evaluation under Diagnostic Code 5202. There is not malunion with moderate or marked deformity. Consequently, a higher or separate rating is not warranted based on Diagnostic Codes 5200 for ankylosis or 5202 for other impairment of humerus. Based on the above, the Board finds a 30 percent evaluation is warranted from March 1, 2019. The criteria for a 40 percent rating are not met or approximated at any time, as limitation of right shoulder motion was greater than 25 degrees from the side. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disease or injury, is remanded. Considering the Board's grant of service connection for obstructive sleep apnea, and additional medical records obtained since the Board's prior remand in April 2020, remand is required to obtain additional nexus opinions regarding whether any of the Veteran's diagnosed acquired psychiatric disorders are secondary to the Veteran's service-connected bilateral shoulder disabilities and obstructive sleep apnea. Significant issues with sleep have been noted during the Veteran's VA psychiatric treatments, including general dysfunctions associated with sleep and his sleep apnea. Symptoms of obstructive sleep apnea were reported during a VA mental health evaluation in April 2013. He was referred by his primary care physician to treat insomnia and the Veteran reported that he might have sleep apnea related to insomnia. At the November 2019 Board hearing he testified that he was initially treated for sleep problems related to his psychiatric disorder, and the Board notes he was subsequently diagnosed with obstructive sleep apnea. During a February 2020 VA mental health progress appointment, the Veteran's psychologist noted "significant issues with sleep" were identified in the context of the Veteran's current psychiatric symptoms and his depression and anxiety. During his initial VA mental health evaluation in April 2013, the Veteran reported that his current psychiatric stressors included his health problems, which at the time included his bilateral shoulder disabilities. During a May 2020 VA mental health consultation reported that his shoulder pain is a significant factor in his anxiety and depression. We note that the Veteran has been diagnosed with chronic pain syndrome, anxiety disorder NOS, and major depressive disorder by his VA psychologists. Furthermore, the Veteran has stated that doctors have told him depression and sleep apnea are related. He is competent to report what he has been told by medical professionals. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Given the forgoing, the Board also finds it necessary to obtain an addendum opinion to determine whether any acquired psychiatric disorder is due to or aggravated by the Veteran's bilateral shoulder disabilities. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate examiner to determine the nature and etiology of any acquired psychiatric disorder. It is up to the discretion of the examiner if a new examination is necessary, or in the alternative, an addendum opinion is sufficient. Identify all currently psychiatric disorders. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder is proximately due to or aggravated by a service-connected disease or injury. The examiner must specifically address pain caused by the Veteran's service-connected left and right shoulder disabilities and the Veteran's service-connected obstructive sleep apnea. If service-connected disease or injury aggravates erectile dysfunction, the examiner should identify the percentage of disability which is attributable to the aggravation pursuant to 38 C.F.R. § 3.310. A separate, complete rationale for all opinions expressed should be provided. The examiner is advised that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the claim for entitlement to service connection for an acquired psychiatric disorder. If the benefits sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.