Citation Nr: 21077021 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-10 671A DATE: December 28, 2021 ORDER An initial rating in excess of 10 percent for a generalized anxiety disorder is denied. An initial rating in excess of 20 percent for a right shoulder strain with acromioclavicular (AC) joint arthrosis is denied. REMANDED The issue of entitlement to an initial compensable rating for dermatitis, recently diagnosed as residual scarring of hidradenitis, is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's anxiety disorder symptoms did not more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran's right shoulder disability is manifest, at worst, by major extremity flexion and abduction limited to 120 degrees during a flare-up, and the record contains no evidence of dislocations, guarding movements, or limitation of motion of the arm to midway between side and shoulder level (flexion or abduction limited to 45 degrees) during the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for an anxiety disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400. 2. The criteria for an initial rating in excess of 20 percent for a right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2003 to January 2015. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Board remanded the issue of a compensable rating for dermatitis, a compensable rating for an anxiety disorder, a rating in excess of 10 percent for a right shoulder disability, and service connection for a right elbow disability for further development in June 2021. A Board remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The requested development has been completed with regard to the issues of an increased rating for anxiety disorder and a right shoulder disability and service connection for a right elbow disability. Unfortunately, although the Veteran was provided with an additional VA examination for his skin condition, the examination does not fully inform the Board on its medical question. Another remand is required. The October 2021 rating decision granted service connection for a right elbow disability, which constitutes a full grant of the benefits sought. Thus, the issue of service connection for a right elbow disability is resolved. Although an increased rating was granted for an anxiety disorder and a right shoulder disability, the issues remained in appellate status, as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Rating 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. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. Hyphenated Diagnostic Codes are used when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, or rating under one Diagnostic Code requires the use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of the disability. Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board can assign different or "staged" ratings for such different periods. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In evaluating a disability, the current examination reports are considered in light of the whole recorded history to ensure that the current rating accurately reflects the disorder's severity. The medical and industrial history are to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information including lay and medical evidence of record in a case before the Secretary concerning benefits under laws the Secretary administers. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). 1. Generalized anxiety disorder. The Veteran contends that his anxiety disorder causes sleep disturbance six out of the seven nights, leaving him tired and exhausted; at times makes him super concentrated on one thing, which is a benefit to work; at times makes him unable to focus because he is thinking about too many things; and his anxiety disorder makes him irritable or short infrequently, about quarterly, during periods of high stress. See April 26, 2021, Hearing Transcript. The Veteran's anxiety disorder is currently rated 10 percent under 38 C.F.R. § 4.130, Diagnostic Code 9400. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 30 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 30 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 10 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 10 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication or interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events) cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of self or close relatives or own occupation. VA and private treatment records, the July 2021 and November 2014 VA examinations, and the Veteran's lay statements show that the Veteran's anxiety disorder was manifested primarily by mild, transient symptoms. During the November 2014 VA examination, the Veteran reported experiencing reduced sleep and increased stress. During the July 2021 VA examination, the Veteran reported experiencing anxiety, chronic worry daily that increases in times of stress, chronic irritability, sleeping difficulties, and fatigue. The July 2021 and November 2014 VA examiners opined that the Veteran's only anxiety disorder symptom was anxiety, which was not severe enough to interfere with occupational and social functioning or require continuous medication. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 10 percent rating. Mental status examinations in VA and private treatment records and the July 2021 and November 2014 VA examinations indicate that the Veteran had normal mental status examination findings. While the Veteran did experience anxiety and sleep impairment contemplated by a 30 percent rating and infrequent irritability during periods of high stress, the evidence overall does not demonstrate the level of impairment associated with a 30 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 10 percent rating. Further, the record contains no evidence of any occupational or social impairment. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 30 percent rating. The 30 percent or higher rating criteria are not met, and the appeal must be denied. 2. Right shoulder disability. The Veteran contends that his right shoulder disability flares up at least once a day and that his right shoulder has atrophied. He reported experiencing constant right shoulder pain, weakness, numb throbbing, and numbness when driving. See April 26, 2021, Hearing Transcript. The Veteran's right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201, for arthritis manifest in limitation of motion of the arm. Diagnostic Code 5003 provides that degenerative arthritis will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. A rating of 10 percent is applicable, to be combined, not added under Diagnostic Code 5003, for each major joint or group of minor joints limitation of motion effects when it is noncompensable under the appropriate diagnostic codes. Findings such as swelling, muscle spasm, or satisfactory evidence of painful motion must objectively confirm the limitation of motion. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Code 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203). Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Effective February 7, 2021, VA amended Diagnostic Code 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. These revisions apply to all claims filed on or after February 7, 2021. VA is to consider claims filed before and pending on February 7, 2021, under both the old and new rating criteria and will apply whatever criteria are more favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves when a flare-up is not observable at the time of examination. During the December 2014 VA examination, the Veteran reported that right shoulder flare-ups caused pain while driving or editing videos and that he also felt pain while inactive. The December 2014 VA examination report revealed no range of motion limitation, including after three repetitions, no objective evidence of painful motion, and the Veteran did not have increased pain with range of motion testing. The examiner noted pain on movement, pain worse with rest, and localized tenderness or pain on palpation of the right shoulder. The Veteran was found to have normal strength. The examiner found no evidence of loss of strength, atrophy, guarding, a rotator cuff condition, instability, dislocation, labral pathology, an AC joint condition, any other impairment of the clavicle or scapula, joint replacement, other surgical procedures, or any other pertinent physical findings, complications, conditions, signs, or symptoms. The examiner noted the Veteran had no additional limitation of functional ability of the shoulder joint during flare-ups or repeated use over time. Private treatment records show continued complaints of right shoulder pain, and a January 2016 MRI demonstrates complete superior labral tearing, anterior inferior capsule labral irregularity, and mild supraspinatus or infraspinatus tendinopathy. The October 2021 VA examination report showed the Veteran's right shoulder flexion was limited to 165 degrees, abduction was limited to 130 degrees, internal rotation was normal, and external rotation was limited to 55 degrees. Passive range of motion was the same as active range of motion. The examiner found that the evidence suggests pain and fatigability significantly limit the functional ability of the right shoulder with flare-ups. The examiner estimated the additional functional loss during flare-ups would be flexion limited to 150 degrees, abduction limited to 120 degrees, normal internal rotation, and external rotation limited to 50 degrees. The examiner noted that the January 2013 MRI showed mild arthrosis of the AC joint. The examiner found evidence of a possible superior labrum from anterior to posterior (SLAP) tear given the positive rotator cuff testing, specifically the Hawkin's impingement test, empty-can test, and lift-off subscapularis test. The examiner determined that the Veteran should avoid tasks that involve pushing, pulling, or lifting. The October 2021 VA examiner found no objective evidence of loss of strength, atrophy, crepitus, localized tenderness, tenderness on palpation, pain on palpation, mechanical symptoms, current residuals of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint, a clavicle or scapula condition other than arthrosis the AC joint, loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, or any other pertinent physical findings, complications, signs, or symptoms. The Board finds that the preponderance of the evidence is against a rating over 20 percent for a right shoulder disability. The VA examinations of record show that the Veteran is right-handed. The Board acknowledges the Veteran's lay reports of symptoms and functional loss due to pain and flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences daily flare-ups, constant right shoulder pain, weakness, numb throbbing, and numbness when driving would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major or minor extremity. Accordingly, a rating in excess of 20 percent, pursuant to Diagnostic Code 5003-5201, is not warranted. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The record contains no evidence of ankylosis of scapulohumeral articulation, a humerus impairment, or impairment of the clavicle or scapula resulting in clavicle or scapula malunion, nonunion, or dislocation. In reaching the above-noted conclusion, the Board has, consistent with DeLuca, considered the Veteran's functional loss due to pain and other factors set forth in 38 C.F.R. § 4.40 and 4.45; however, the pertinent medical evidence reflects that the assigned 20 percent rating properly compensates the Veteran for the extent of any such loss. Notably, the Veteran did not argue, and no evidence demonstrates his right (major) arm motion was limited to midway between side and shoulder level, as required for assignment of the next higher rating under Diagnostic Code 5201. While the Veteran described symptoms of numbness, the record contains no objective neurological symptoms, including radiculopathy or neuropathy, despite diagnostic testing. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for a right shoulder disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. The issue of an initial compensable rating for dermatitis, recently diagnosed as residual scarring of hidradenitis. The Veteran contends that he is entitled to a higher rating because his skin condition results in embarrassing cystic boils, deep discoloration, and scarring along his hips and from his back shoulder down to his upper thigh. See April 26, 2021, Hearing Transcript. The Veteran's residual scarring of hidradenitis, previously characterized as contact dermatitis, is rated under Diagnostic Code 7806 for dermatitis or eczema, which is evaluated under the General Rating Formula for the Skin. During the December 2014 VA examination, the Veteran described the skin condition as large boil zits that began around the hip area, have gotten worse, and have spread to his back. The December 2014 VA examiner diagnosed the skin condition as contact dermatitis, described the condition as a rash around the hip area, and found that the skin condition affected none of the exposed area and less than 5 percent of the total body area. The examiner noted the Veteran treated the condition with antihistamines (treatment for hives) for less than six weeks in the past 12 months. VA treatment records from June 2021 show the Veteran complained of a rash on his posterior thighs, hips, and low abdomen that has been present for weeks, and he said the skin lesions would drain. The October 2021 VA examiner recharacterized the skin condition diagnosis to residual scarring of hidradenitis, inflammation of the sweat gland. The examiner found that the service-connected condition has resolved and that the Veteran had no obvious abscesses during the examination, but he did have areas of old scarring on the back, waistline, and bilateral inner thighs. The examiner noted the Veteran makes constant or near-constant use of topical selenium sulfide for hidradenitis and that hidradenitis has covered 5 to 20 percent of the Veteran's total body area, but none of the exposed area. The Board finds that the October 2021 VA examination does not provide sufficient detail to fully inform the Board of its medical question. Monzingo v. Shinseki, 26 Vet. App. 97, 109 (2012). The October 2021 VA examiner recharacterized the Veteran's service-connected skin condition diagnosis to residual scarring of hidradenitis. However, the examination does not inform the Board whether the residual scarring is deep, non-linear, or associated with underlying soft tissue damage, nor does it describe the size of the scarring. See 38 C.F.R. § 4.118. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of residual scarring of hidradenitis, previously characterized as contact dermatitis. The matters are REMANDED for the following action: (Continued on the next page) Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residual scarring of hidradenitis, previously characterized as contact dermatitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria in 38 C.F.R. § 4.118 for skin disorders, including scars. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Costa, Stephanie D. 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.