Citation Nr: 21013499 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-15 568 DATE: March 9, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, other than the service-connected chronic adjustment disorder, to include major depressive disorder (MDD)and/or posttraumatic stress disorder (PTSD), to include as secondary to a service-connected disability, is denied. Entitlement to a rating greater than 20 percent for right shoulder tendonitis with adhesive capsulitis (right shoulder disability) is denied. Entitlement to a rating greater than 10 percent for chondromalacia, right knee, status post anterior cruciate ligament reconstruction (right knee disability) is denied. FINDINGS OF FACT 1. The Veteran does not have an MDD or other specified trauma or stressor related disorder separately diagnosed from his already service-connected chronic adjustment disorder. 2. For the period on appeal, the Veteran’s right shoulder disability has been more nearly approximated by pain with limitation of motion to, at worst, 100 degrees. 3. Throughout the appeal period, the Veteran’s knee disability has been manifested, at worst, by painful limitation of motion at 3 degrees to 125 degrees, with no flare-ups, to include after repetitive use; no ankylosis and only slight recurrent subluxation has been noted. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a rating greater than 20 percent for service-connected right shoulder disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5024-5201. 3. The criteria for a rating greater than 20 percent for service-connected right shoulder disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from August 1986 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) from June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The decision was last remanded in January 2018 and has since been returned to the Board for appellate review. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection 1. Acquired Psychiatric Disorder The Veteran seeks service connection for MDD and/or PTSD separate from his already service-connected chronic adjustment disorder, to include as secondary to a service connected disability. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). At the outset, the Board notes that the Veteran is currently service connected for chronic adjustment disorder. Upon remand, the Veteran was provided a November 2020 VA examination where a VA psychologist reviewed the pertinent medical evidence on file and performed the examination. The examiner diagnosed the Veteran with recurrent mild MDD and other specified trauma or stressor related disorder. The examiner opined that it is not possible to differentiate what symptoms are attributable to each diagnosis as there are overlapping symptoms between diagnoses. Regarding a previous diagnosis of PTSD at the time of a February 2017 VA examination, the psychologist explained that although the Veteran does have in-service stressors, they did not occur in in a combat zone. The examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD. Ultimately, the examiner opined that the new diagnoses of MDD and other specified trauma or stressor related disorder are corrections of the previous diagnosis of chronic adjustment disorder and PTSD secondary to an in-service stressor. Notably, the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Upon review of the evidence of record, the Board acknowledges that the Veteran suffers from MDD and unspecified trauma or stressor related disorders, for which the Veteran is already service connected. In fact, in the November 2020 rating decision, the Veteran’s formerly chronic adjustment disorder was updated to MDD with other specified trauma or stressor related disorder. In reaching this conclusion, the Board relies heavily on the November 2020 examination report, which offers an opinion that the Veteran’s current diagnoses update the previous diagnosis of a chronic adjustment disorder. Simply put, the Veteran’s current symptoms are reflective of the already service-connected chronic adjustment disorder and are not the result of a separate disability. In so finding, the Board acknowledges that the Veteran’s VA treatment records show a history of treatment for PTSD; however, the Board finds more probative the conclusions of the VA examiner, that the Veteran’s current symptoms are reflective of the already service-connected chronic adjustment disorder and not of a separate disability. The VA examination was performed for the purpose of identifying specific disabilities rather than providing clinical treatment. Further, the Board notes that the Veteran’s level of occupational and social impairments due to psychiatric disability have been compensated by the currently assigned rating for MDD with other specified trauma or stressor related disorder (formerly chronic adjustment disorder). Thus, to separately grant service connection for an MDD or other specified trauma or stressor related disorder apart from the chronic adjustment disorder when the symptomatology is already considered in the award of service connection for the Veteran's formerly chronic adjustment disorder would be impermissible pyramiding. See C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. For these reasons, the claim is denied. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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.”). 2. Right shoulder disability The Veteran is currently assigned a 20 percent disability rating pursuant to 38 C.F.R. § 4.71a, DC 5024-5201, for right shoulder tendonitis with adhesive capsulitis. This claim stems from a May 2010 claim for increase. The disability is rated by analogy under DC 5024 for tenosynovitis which instructs that the disability should be rated on limitation of motion of affected parts as arthritis. 38 C.F.R. § 4.71a, DC 5024. DC 5201, in turn, pertains to limitation of motion of the arm. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5201, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021, the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Under the amended version of DC 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Prior to the February 2021 amendment, a 20 percent disability rating was contemplated for limitation of motion of the major or minor arm at shoulder level or for limitation of the minor arm to midway between side and shoulder level. Limitation of motion of the arm midway between side and shoulder (flexion and/or abduction limited to 40 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Prior to the February 2021 amendment, a 30 percent disability rating was warranted for limitation of the major arm to midway between side and shoulder level or when motion of the minor arm was limited to 25 degrees from the side. 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. Prior to the February 2021 amendment, a 40 disability rating was warranted when motion of the major arm was limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201 (pre and post February 7, 2021). Notably, DC 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). 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.” Notably, when examined in January 2020, both shoulders were tested on range of motion testing. The opposite undamaged joint was noted as being asymptomatic. 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. In this case, the Veteran did not report, and the examination does not show that the Veteran suffers flare-ups. Specifically, during the January 2020, the examiner reported that the Veteran did not report flare-ups of the shoulder or the arm. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right shoulder disability. The evidence of record shows that the Veteran is right-handed. Specifically, the January 2020 VA examination indicated that the Veteran’s dominant hand is right. Evidence relevant to determining the appropriate rating for the Veteran’s right shoulder includes the report of a January 2020 VA examination at which time the Veteran was able to achieve flexion and extension to 100 degrees and internal and external rotation to 70 degrees, with pain. No pain with weight bearing, no loss of additional functional loss or range of motion to include after three repetitions, or after repeated use over a period of time was demonstrated. The Veteran’s right shoulder was not found to have ankylosis. The Veteran’s right shoulder’s rotator cuff condition was positive for Hawkins’ Impingement Test, Empty-Can Test, External Rotation/Infraspinatus Strength Test. The examiner also indicated there was an improvement up to 80 degrees on internal and external rotation and up to 125 degrees of forward flexion/abduction but no higher, on passive range of motion testing. The Veteran also reported for a VA examination in March 2019 to determine the severity of his right shoulder disability. During the examination, his right shoulder showed flexion of 0 to 155 degrees, with no evidence of pain with weight bearing. Pain was noted on the examination but ultimately showed that it did not result in or cause functional loss, to include observed repetitive use and repeated use over time. The Veteran’s right shoulder was not found to have ankylosis. The Veteran’s right shoulder’s rotator cuff condition was positive for Hawkins’ Impingement Test, Empty-Can Test, External Rotation/Infraspinatus Strength Test. Lift-off subscapularis Test showed a negative result. Further, at a July 2010 examination, the Veteran reported a painful right shoulder, with flare ups of pain particularly during cold weather changes. At that time, the Veteran’s right shoulder tendonitis was noted to have resolved. Overall, the Board finds that the evidence of record does not support a rating greater than that which is currently assigned. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, including pain while side-sleeping, or performing flexion/abduction over 100 degrees. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the limitation 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. The Board has also considered whether any other DC 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 Board considered whether a separate shoulder rating was appropriate in this case. DC 5200 considers ankylosis, which has not been shown here. DC 5202 applies to impairment of the humerus and scapulohumeral joint, and DC 5203 applies to malunion, non-union, or dislocation of the clavicle or scapula, none of which has been shown in the medical evidence of record for the Veteran’s service-connected right shoulder disability. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating greater than 20 percent for his 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. 3. Right knee disability The Veteran is currently assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260, for chondromalacia, right knee, status post anterior cruciate ligament reconstruction. This claim stems from a May 2010 claim for increase. Regarding knee ratings, separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (DC 5260), limitation of extension (DC 5261), instability and recurrent subluxation (DC 5257), and meniscal conditions (DC 5258, 5259). See Lyles v. Shulkin, 29 Vet. App. 107 (2017); VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, DC 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71aDC 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can be assigned when a knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, DC 5258, 5259. In this case the evidence does not reflect, and the Veteran does not allege that he has any meniscal disability, although the Veteran did have meniscal surgery in 1998. As such, these DCs are not for application. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, DCs 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. Ratings can be assigned for knee instability or subluxation under DC 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. Within the context of the old version of DC 5257, which established a successive, tiered rating structure, “severe” represented the highest or most extreme level of disability. As of February 7, 2021, DC 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, DC 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability without a prescription from a medical provider for an assistive device or bracing for ambulation. Regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, DC 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2). In this case the evidence does not reflect, and the Veteran does not allege that he currently has patellar instability. As such, those diagnostic codes are not for application. Range of motion testing was performed during VA examinations in March 2019 and January 2020 and was at worst 3 degrees of flexion and 125 degrees of extension. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The Veteran did not report flare-ups in either examinations. While given the opportunity to describe functional limitation related to the disability, the Veteran’s statements do not show the requisite limitation of motion necessary for a higher or separate rating. Notably, the examiner reported no additional functional loss or range of motion after observed repetitive use or repeated use over time. Thus, the Board finds that the range of motion findings on examination depict the estimated range of motion after repetitive use over time. Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. Regarding instability and subluxation of the knee, there are specific medical tests that are designed to reveal instability of the joints. These tests were administered by medical professionals in this case in March 2019 and January 2020, and the testing revealed slightly recurrent subluxation in the right knee. Lateral instability was not found. The Veteran is currently service connected at 10 percent under DC 5003-5257. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran’s lay statements. While the Veteran may experience a feeling that his knee may give way or is more unstable than as tested, if subluxation or instability were present at worse severity, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed. See 38 C.F.R. §§ 4.31, 4.71a, DC 5257 (2020). Regarding the version of DC 5257 in effect prior to February 7, 2021, a higher or separate rating is not warranted at this time as the Veteran is already service connected for his slight subluxation and the evidence is against a finding of the presence of lateral instability or recurrent subluxation that is worse than as tested. Regarding the version of DC 5257 in effect since February 7, 2021, a rating higher than 10 percent for recurrent subluxation or instability is not warranted because the evidence is against a finding of persistent instability. Notably, diagnostic testing for stability at the March 2019 and January 2020 examinations did not reveal any instability, which is strong evidence against a finding of persistent instability. Put another way, when multiple medical tests for instability fail to detect instability, constant instability is not present. A compensable rating is not warranted for patellar instability either. The evidence does not show surgical repair involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon), and, as discussed above, the evidence is against a finding of recurrent instability. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for right knee 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. KRISTIN E. NEILSOn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.