Citation Nr: 21008985 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-33 121 DATE: February 18, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for major depressive disorder (MDD) with insomnia is dismissed. Entitlement to a disability rating of 40 percent for left rotator cuff injury, status post-surgery (minor) is granted. Entitlement to a total disability rating based on individual (TDIU) due to the Veteran's service connected MDD with insomnia is granted. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) is granted. REMANDED Entitlement to loss of use of left upper extremity is remanded. FINDINGS OF FACT 1. During the February 2021 hearing, the Veteran testified that the award of a TDIU due to her service-connected psychiatric disability alone would satisfy her appeal and, thereby, withdrew her claim seeking a disability rating in excess of 70 percent for MDD. 2. The Veteran is right-hand dominant; therefore, her left shoulder is her minor extremity. 3. The Veteran’s left shoulder condition manifests as unfavorable ankylosis with abduction limited to 25 degrees from the side. 4. It is reasonably shown that the Veteran’s service-connected major depressive disorder precludes her from securing or following a substantially gainful occupation. 5. The Veteran’s additional service-connected disabilities are independently ratable at 60 percent, separate and distinct from the Veteran’s 100 percent service-connected major depressive disorder. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to a disability rating in excess of 70 percent for major depressive disorder (MDD) with insomnia have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2018). 2. The criteria for entitlement to a disability rating of 40 percent for left rotator cuff injury, status post-surgery (minor) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.20, 4.27, 4.3, 4.7, 4.69, 4.71a, Diagnostic Code (DC) 5201 (2018). 3. The criteria for entitlement to a TDIU due to the Veteran's service connected MDD with insomnia have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). 4. The criteria for entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) have been met. 38 U.S.C. §§ 1114, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.351 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1999 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in February 2021. 1. Entitlement to a disability rating in excess of 70 percent for major depressive disorder (MDD) with insomnia. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. During the February 2021 hearing, the Veteran notified the Board of her request to withdraw the issue regarding entitlement to a rating in excess of 70 percent for MDD with insomnia given this grant of TDIU due solely to the Veteran’s MDD in this decision. Hence, with respect to this issue, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. 2. Entitlement to a disability rating of 40 percent for left rotator cuff injury, status post-surgery (minor). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint’s range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. The Veteran contends that her left shoulder disability is worse than contemplated by the assigned disability ratings. The Veteran is currently rated at 30 percent for her left shoulder (minor extremity) under Diagnostic Code 5201. Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, as the medical evidence shows that the Veteran is right-hand dominant, her left shoulder is her minor shoulder for rating purposes. Under Diagnostic Code 5201, the minor shoulder is rated as follows: limitation of motion to shoulder level (i.e. 90 degrees) warrants a 20 percent rating; motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion) warrants a 20 percent rating; and motion limited to 25 degrees or less from the side is rated at 30 percent. 38 C.F.R. § 4.71a. Under Diagnostic Code 5200, the minor shoulder is rated as follows: a 20 percent rating is warranted in instances of favorable ankylosis with abduction limited to 60 degrees, and the ability to reach the mouth and head; a 30 percent rating is warranted in instances of intermediate ankylosis between favorable and unfavorable. A 40 percent rating is warranted where there is unfavorable ankylosis with abduction limited to 25 degrees from the side. Id. During the pendency of the appeal, the criteria for rating the musculoskeletal system changed, with the new regulation becoming effective February 7, 2021. Effective February 7, 2021, the new regulation provided clarification for Diagnostic Codes 5201 and 5202, stating that limitation of motion of the arm includes either flexion or abduction, shoulder level is 90 degrees, and midway between the side and shoulder level is 45 degrees. Normal forward flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that the Veteran’s left shoulder disability is most closely analogous to a 40 percent rating under Diagnostic Code 5200. At the July 2017 VA examination, the examiner noted that range of motion was not tested as the Veteran has a frozen shoulder with severe pain. The examiner stated that the Veteran has lost almost complete use of her left hand and arm making it difficult for her to grasp, hold, lift, or function in any way. See also VA Examination, June 2015 (noting chronic pain, flare-ups, and inability to test range of motion due to pain). During the February 2021 hearing, the Veteran testified that she has no use of her left arm and now experiences tremors in her arm and hand. The RO previously determined that the most closely analogous diagnostic code pertaining to the Veteran’s left shoulder disability is 38 C.F.R. § 4.71a, Diagnostic Code 5201, which pertains to limitation of motion. In this regard, the Board notes that 38 C.F.R. § 4.20 provides that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Given the medical and lay evidence of record, the Board finds that the Veteran’s left shoulder disability is most closely analogous to Diagnostic Code 5200, which pertains to unfavorable ankylosis. Thus, the Board finds that the Veteran’s left shoulder disability manifests by disability analogous as unfavorable ankylosis with abduction limited to 25 degrees from the side and warrants the maximum 40 percent rating. 3. Entitlement to a TDIU due to the Veteran's service connected MDD with insomnia. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran asserts that her service connected MDD alone causes her to be unable to secure or follow a substantially gainful occupation. See Hearing Testimony, February 2021. As the Veteran has a 70 percent disability rating for her service-connected PTSD, effective June 29, 2011, the Board notes that her PTSD meets the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment. 38 C.F.R. § 4.16. On her TDIU application, the Veteran reported that she last worked in 2006. See VA Form 21-8940, June 2017. The Veteran reported four years of high school and some college. During the February 2021 hearing, the Veteran testified that her psychiatric disability has worsened. She stated that she has memory problems, cannot be around other people, and suffers from insomnia. The Veteran also testified that she has visual and audio hallucinations twice a week. During a June 2015 examination, the examiner noted symptoms of depressed mood, anxiety, panic attacks, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty in adapting to stressful circumstance, including work or a worklike setting, inability to establish and maintain effective relationships, and obsessional rituals which interfere with routine activities. Similarly, in August 2018, a private examiner noted that the Veteran has total occupational and social impairment. After a review of the evidence of record, and resolving any reasonable doubt as mandated by law, the Board finds that the evidence supports that the Veteran’s service-connected major depressive disorder prevents her from securing or following substantially gainful employment. In sum, the Board finds that entitlement to a TDIU based on the Veteran’s service-connected PTSD alone is warranted. 4. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s). In light of the above grant of TDIU based solely on the Veteran’s service-connected major depressive disorder and pursuant to VA’s “well-established” duty to maximize a claimant’s benefits, the Board finds that the Veteran is entitled to an award of SMC. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); AB v. Brown, 6 Vet. App. 35, 38 (1993); Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (finding that SMC” benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The Court has held that a TDIU may satisfy the “rated as total” element of section 1114(s), and that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie, 24 Vet. App. at 250. In this case, the Veteran is in receipt of a TDIU solely for her service-connected major depressive disorder, which effectively gives her a 100 percent disability rating for a single disability. Additionally, the Veteran has other service-connected disabilities that combine to be independently rated at more than 60 percent. Thus, the criteria for SMC at the housebound rate are met. In light of the Court’s decisions in Bradley and Buie, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) is granted. REASONS FOR REMAND 1. Entitlement to loss of use of left upper extremity is remanded. As stated above, the Veteran testified that she has no use of her left upper extremity. Her most recent upper extremity examination noted that the Veteran has lost almost complete use of her left hand making it difficult to grasp, hold, lift, or function in any way. See VA Examination, July 2017. As the most recent VA examination is from July 2017, the Board finds that a remand is necessary to afford the Veteran a new VA examination to determine the current severity of her service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: Schedule the Veteran for appropriate VA examinations (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of her left upper extremity disability. All necessary tests should be performed. All findings should be reported in detail. The examiner should identify all upper extremity pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight -bearing and, with range of motion measurements of the opposite joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. The examiner is to make a specific determination as to whether the Veteran has lost use of any of her extremities. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.