Citation Nr: 21014266 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-02 034 DATE: March 11, 2021 ORDER For the appeal period prior to July 13, 2017, entitlement to a rating in excess of 30 percent for a service-connected acquired psychiatric disorder, to include adjustment disorder with mixed emotional features, is denied. For the appeal period from July 13, 2017, entitlement to a 100 percent disability rating for a service-connected acquired psychiatric disorder, to include adjustment disorder with mixed emotional features, is granted. Entitlement to a rating of 50 percent, but not higher, for a right shoulder disability is granted. Entitlement to a rating of 40 percent, but not higher, for a left shoulder disability is granted. REMANDED Entitlement to a higher level of special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114 is remanded. FINDINGS OF FACT 1. For the appeal period prior to July 13, 2017 the Veteran’s service-connected acquired psychiatric disorder is shown to result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks and corresponding symptomatology. 2. For the appeal period from July 13, 2017 the Veteran’s service-connected acquired psychiatric disorder is shown to result in total occupational and social impairment. 3. The Veteran’s right shoulder has manifested evidence of fibrous union of the humerus. 4. The Veteran’s left shoulder has manifested evidence of fibrous union of the humerus. CONCLUSIONS OF LAW 1. For the appeal period prior to July 13, 2017 the criteria for a disability rating in excess of 30 percent for a service-connected acquired psychiatric disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. For the appeal period from July 13, 2017, the evidence of record being in equipoise, the criteria for a disability rating of 100 percent for a service-connected acquired psychiatric disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for a disability rating of 50 percent, but not higher, for a right shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7 38 C.F.R. § § 4.71a, C 5202. 4. The criteria for a disability rating of 40 percent, but not higher, for a left shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7 38 C.F.R. § § 4.71a, DC 5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1999 to October 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a January 2020 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board notes several medical records were received after the November 2014 statement of the case (SOC), to include a July 2017 private examination; however, in January 2020 correspondence the Veteran waived RO review of the additional evidence. Increased Ratings 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. The Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. For the appeal period prior to July 13, 2017 entitlement to a rating in excess of 30 percent for adjustment disorder 2. For the appeal period from July 13, 2017 entitlement to a rating in excess of 30 percent for adjustment disorder The Veteran claims an evaluation in excess of 30 percent for adjustment disorder is warranted. Specifically, in an August 2016 statement the Representative argued a higher rating is warranted due to symptoms such as an inability or difficulty in establishing and maintaining effective work and social relationships. The Board finds for the appeal period prior to July 13, 2017 a rating in excess of 30 percent is not warranted. However, for the appeal period from July 13, 2017, a 100 percent rating is warranted as discussed below. The Board notes a November 2002 rating decision granted service connection for adjustment disorder with mixed emotional features and a history of conversion disorder with a 30 percent evaluation, effective October 2, 2002. The November 2002 rating decision is final; the rating decision on appeal is from July 2010. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran’s adjustment disorder is rated under DC 9440, 38 C.F.R. § 4.130. Under DC 9440, the following applies: A 10 percent disability rating is warranted when the psychiatric condition results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted when there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Turning to the relevant evidence, in June 2012, VA treatment records indicated the Veteran was alert, oriented to person, place, and time, with comprehension and repetition intact. She reported her personality and ADD make it difficult to focus without wandering. The neurologist noted the Veteran had pressured speech and had been angry during every virtual meeting. In a March 2013 private psychiatric report, the Veteran was alert and oriented to person, place, and time. She was well groomed with a youthful appearance. She was agitated but she had normal speech, which was pressured at the beginning of the session, but calmer and more fluent toward the end of the session. Thought process was linear, logical, and goal oriented. Cognition was intact; Insight was good; Judgment was fair. The Veteran reported symptoms of depression and strong reactive anger; however, she feels she is much better and is interested in improving her overall wellness. An August 2013 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited her complaints. The examiner determined the Veteran’s level of occupational and social impairment was characterized by mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran reported she has been married for one and a half years and sees her friends infrequently. The symptoms that actively applied to the Veteran were difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. In November 2016 treatment records indicated the Veteran was in casual attire with cooperative intermittent eye contact. Her speech was normal; insight and judgment were fair; cognition was grossly intact, and she denied homicidal or suicidal ideations. She also reported a decline in anxiety. The Veteran submitted a July 13, 2017 private examination. The Veteran was diagnosed with psychogenic non- epileptic seizures, major depression, and anxiety. The doctor determined the Veteran suffered from total occupational and social impairment. The symptoms that actively applied to the Veteran were depressed mood, anxiety, chronic sleep impairment, mild memory loss, difficulty understanding complex commands, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, near continuous panic or depression, impaired impulse control, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. During the January 2020 hearing the Veteran’s spouse testified. He indicated over the past 5 years he has observed a rapid decrease in the Veteran’s ability to perform simple tasks. The Veteran can’t have showers unless her spouse is home due to a fall risk and he can’t leave her alone for long periods of time. The spouse has to complete laundry, grocery shopping, cooking, and most of the care for their 4-year-old son, as the Veteran is non-functional. He works nights so that he can take care of her during the day. He indicated, the Veteran has communicated suicidal ideations as recent as two weeks prior, however the Veteran told him she would never do that to him and their son. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds for the appeal period prior to July 13, 2017 a rating in excess of 30 percent is not warranted. However, for the appeal period from July 13, 2017, the evidence of record is in equipoise concerning the application of a 100 percent disability rating, and thereby affords the benefit of the doubt to the Veteran. For the appeal period prior to July 13, 2017, a higher rating is available for occupational and social impairment with reduced reliability and productivity; for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or for total occupational and social impairment. The evidence weighs against such symptoms. in June 2012, VA treatment records indicated the Veteran was alert, oriented to person, place, and time, with comprehension and repetition intact. In a March 2013 private psychiatric report, the Veteran was alert and oriented to person, place, and time. She was well groomed with normal speech, linear, logical, and goal-oriented thought process, intact cognition, good insight, and fair judgment. The August 2013 VA examination report indicated the Veteran’s level of occupational and social impairment was due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Although the Veteran claims a rating in excess of 30 percent is warranted, the examiner at the time indicated the level of occupational and social impairment is in fact, indicative of a 10 percent rating. Furthermore, the November 2016 treatment records indicated the Veteran was in casual attire with cooperative intermittent eye contact. Her speech was normal; insight and judgment were fair; cognition was grossly intact, and she denied homicidal or suicidal ideations. For the appeal period prior to July 13, 2017, the Board acknowledges the Veteran suffered from symptoms such as difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances including work or a worklike setting, which is indicative of a 50 percent and 70 percent rating respectively. However, after review of the collective evidence of record the Board finds an increase based on those symptoms is not warranted. Per the August 2013 VA examination self-reports, the Veteran was married during the appeal period and although she see’s friends infrequently, she indicated she has friends. This evidence supports an ability to establish and maintain relationships. Accordingly, for the appeal period prior to July 13, 2017 a rating in excess of 30 percent is not warranted. For the appeal period from July 13, 2017 the Board finds that the Veteran’s psychiatric disability has been productive of total occupational and social impairment. The evidence demonstrates an inability to perform activities of daily living, as the Veteran’s spouse testified to the Veteran’s inability to complete laundry, grocery shopping, cooking, and most of the care for their 4-year-old son. She is reliant on her spouse and cannot shower or be along for long periods of time without her spouse’s assistance. The spouse indicated the Veteran is non-functional and he has seen a rapid decrease in the Veteran’s ability to perform simple tasks. This decrease has resulted in him workings nights so that he can take care of the Veteran during the day. The spouse also indicated he has observed a rapid decrease within the last 5 years. This testimony supports the July 2017 private doctor’s finding, that the Veteran suffered from total occupational and social impairment. The Veteran testified to being unemployed. The Board notes the Veteran demonstrated impairment in thought processes or communication during the January 2020 Board hearing. She referred to herself in the third person multiple times and demonstrated difficulty in focusing on the issues or questions posed to her. Furthermore, the Veteran spouse’s testimony indicated the Veteran has communicated suicidal ideations in as recent as two weeks prior to the Board hearing. Based on the foregoing, and resolving all reasonable doubt in the Veteran’s favor, for the appeal period from July 13, 2017 the Board finds that a 100 percent evaluation is warranted for the Veteran’s psychiatric disability. This constitutes a full grant of the benefit sought on appeal pertaining to the psychiatric disability because the 100 percent evaluation assigned herein is the maximum evaluation provided under the law for the Veteran’s psychiatric disability. 3. Entitlement to a rating in excess of 30 percent for a right shoulder disability 4. Entitlement to a rating in excess of 20 percent for a left shoulder disability The Veteran claims an evaluation in excess of 30 percent for the right shoulder and in excess of 20 percent for the left shoulder is warranted due to impact on her work and functional loss. Specifically, during the January 2020 hearing she argued her shoulders are in a state of nonunion and atrophy. An April 2004 rating decision granted service connection for the dislocation of the right shoulder evaluated at 30 percent and left shoulder evaluated at 20 percent, both with an effective date of January 24, 2004 under DC 5202. DC’s 5200, 5201, 5202, and 5203 all cover the shoulder and arm. 38 C.F.R. § 4.71a. DC 5200 provides that ankylosis of the scapulohumeral articulation is to be rated as follows: favorable ankylosis, with abduction to 60 degrees, can reach mouth and head, 30 percent for the major shoulder and 20 percent for the minor shoulder; intermediate ankylosis, between favorable and unfavorable, 40 percent for the major shoulder and 30 percent for the minor shoulder; unfavorable ankylosis, abduction limited to 25 degrees from side, 50 percent for the major shoulder and 40 percent for the minor shoulder. A Note provides that the scapula and humerus move as one piece. 38 C.F.R. § 4.71a. DC 5201, relating to limitation of motion of the arm, provides a minimum rating of 20 percent disabling where motion of the arm is limited to shoulder level (and a non-compensable rating for motion of the arm greater than shoulder level). A maximum 40 percent evaluation is warranted for limitation of motion of the arm to 25 degrees from side. 38 C.F.R. § 4.71a. DC 5202 provides ratings for other impairment of the humerus. Malunion of the humerus with moderate deformity is rated as 20 percent for the major and minor shoulder; malunion of the humerus with marked deformity is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, are rated as 20 percent for the major and minor shoulder; recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, are rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Fibrous union of the humerus is rated as 50 percent for the major shoulder and 40 percent for the minor shoulder. Nonunion of humerus (false flail joint) is rated as 60 percent for the major shoulder and 50 percent for the minor shoulder. Loss of head of the humerus (flail shoulder) is rated as 80 percent for the major shoulder and 70 percent for the minor shoulder. 38 C.F.R. § 4.71a. DC 5203 provides ratings for other impairment of the clavicle or scapula. A rating in Malunion of the clavicle or scapula is rated as 10 percent for the major and minor shoulder. Nonunion of the clavicle or scapula without loose movement is rated as 10 percent for the major and minor shoulder; nonunion of the clavicle or scapula with loose movement is rated as 20 percent for the major and minor shoulder. Dislocation of the clavicle or scapula with loose movement is rated as 20 percent for the major and minor shoulder. DC 5203 provides an alternative rating based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a. This DC is inapplicable as the Veteran is seeking ratings higher than the 20 percent maximum as provided for this code. Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. 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. 38 C.F.R. § 4.69. The record indicates that the Veteran is right-hand dominant; thus, her service-connected right shoulder disability involves the major extremity. Additionally, when making a determination of the Veteran’s current disability rating it is important to note the “amputation rule,” set forth at 38 C.F.R. § 4.68, which provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were an amputation to be performed. Simply stated, the Board cannot give the Veteran more compensation for her shoulder disability than it would a Veteran without a right or left arm. As a result, the combined rating of the Veteran’s service-connected disabilities of the upper extremity involving the right and left shoulder may not exceed 90 percent for the right shoulder and 80 percent for the left shoulder. See 38 C.F.R. § 4.71 (a), DC 5121 (amputation of the major and minor arm above the insertion of the deltoid warrants a disability rating of 90 percent and 80 percent respectively). Turning to the relevant evidence, in June 2005 the Veteran underwent diagnostic arthroscopy and arthroscopic Bankart repair surgery for the right shoulder. A May 2010 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited her complaints. The Veteran was diagnosed with dislocation, status post arthoplasty of the right shoulder and dislocation, status post arthroscopy of the left shoulder. For the right shoulder flexion was limited to 135 degrees with pain and on repetitive use. The right shoulder abduction was limited to 130 degrees with pain and on repetitive use. The right shoulder external rotation was limited to 70 degrees with pain and on repetitive use. The right shoulder internal rotation as limited to 65 degrees with pain and on repetitive use. For the left shoulder flexion was limited to 135 degrees with pain and on repetitive use. The left shoulder abduction was limited to 130 degrees with pain and on repetitive use. The left shoulder external rotation was limited to 70 degrees with pain and on repetitive use. The left shoulder internal rotation as limited to 65 degrees with pain and on repetitive use. In June 2010 the Veteran underwent diagnostic arthroscopy with arthroscopic subacromial decompression surgery for the left shoulder. An August 2010 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited her complaints. The Veteran was diagnosed with bilateral shoulder strain and instability status post surgeries with scars and residual hardware. For the right shoulder flexion was limited to 100 degrees with pain and on repetitive use. The right shoulder abduction was limited to 110 degrees with pain and on repetitive use. The right shoulder external and internal rotation was limited to 40 degrees with pain and on repetitive use. For the left shoulder flexion was limited to 80 degrees with pain and on repetitive use. The left shoulder abduction was limited to 80 degrees with pain and on repetitive use. The left shoulder external and internal rotation was limited to 30 degrees with pain and on repetitive use. It was noted there is no additional limitation of degree bilaterally nor is there evidence of ankylosis. A September 2010 radiology report reflected a marked periarticular osteopenia for the right shoulder and evidence of previous surgery with screws overlying the glenoid margin for the left shoulder. In January 2013 the Veteran submitted a letter from G.S., staff psychiatrist. The psychiatrist indicated the Veteran’s seizures cause further shoulder dislocation and the functional restrictions of the shoulders affect the Veteran’s ability to return to gainful employment. An August 2013 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited her complaints. The Veteran was diagnosed with right and left shoulder recurrent traumatic dislocations. The Veteran dominant hand is the right. She reported flare-ups as she is limited by pain in activities such as repetitive reaching, pulling, pushing, pulling, heavy lifting, and carrying. For both shoulders, flexion was limited to 150 degrees with pain at 120 degrees. For both shoulders’ abduction was limited to 150 degrees with pain at 120 degrees. After repetitive testing for both shoulders, flexion and abduction were limited to 120 degrees. There was additional limitation in range of motion following repetitive use and the contributing factors included less movement than normal and pain. Muscle strength was normal for both shoulders and there was no evidence of ankylosis. There is a history of frequent episodes of recurrent dislocation of the glenohumeral joint. There were surgical scars measuring less than 36 inches, however they were not painful or unstable. The examiner noted, for both shoulders, the external and internal rotation ended at 60 degrees with evidence of pain at 30 degrees. For both shoulders, the post-test external and internal rotation ends at 30 degrees. There are contributing factors of pain, weakness, fatigability and/or incoordination as well as additional loss in range of motion during flare-ups or repetitive use. The additional loss for both shoulders is approximately 30 degrees in each of the 4 cardinal directions for both shoulders. In July 2017 the Veteran submitted a private examination. The physician diagnosed the Veteran with bilateral glenohumeral joint instability and joint dislocation. It was noted the physical examination revealed a positive apprehension test. Crepitus and instability with pain was noted. There is bilateral limitation of motion in external rotation. For both shoulders, flexion was limited to 170 degrees, abduction was limited to 170 degrees, external rotation was limited to 45 degrees, and internal rotation was limited to 80 degrees. Pain with instability was noted for the left shoulder. The physician noted the range of motion is mildly restricted and the past surgical repair did not correct the left shoulder instability and the shoulder will dislocate under extreme range of motion. For both shoulders the Veteran was unable to perform repetitive testing due to the possibility of dislocation. The physician noted pain, fatigue, weakness, and lack of endurance or incoordination after flare-ups or repetitive use limited range of motion. For both shoulders, flexion was limited to 90 degrees, external rotation was limited to 33 degrees, and internal rotation was limited to 50 degrees. The right shoulder abduction was limited to 95 degrees and the left shoulder abduction was limited to 93 degrees. Muscle atrophy was present for the shoulders. Contributing factors of disability included less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, deformity, atrophy of disuse, and instability of station. There was no ankylosis present for either shoulder. The report indicated bilateral shoulder instability dislocation or labral pathology suspected, with a history of infrequent episodes or recurrent dislocation of the glenohumeral joint. There was also bilateral guarding of movement only at shoulder level, bilateral loss of head, specifically, the fibrous union, and bilateral malunion with moderate deformity. Marked deformity was noted, however, the shoulder was not identified. There were surgical scars measuring less than 36 inches, however they were not painful or unstable. In July 2018, treatment records reflected complaints of recurrent right shoulder pain. The history indicated the Veteran had bilateral stabilization surgeries about 10 years ago and there has been no subsequent dislocation. However, there is subluxation leading to flareups of pain. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds a 50 percent rating is warranted for the right shoulder and a 40 percent rating is warranted for the left shoulder under DC 5202. For both shoulders, higher ratings under DC 5200 to 5202 are warranted for evidence of ankylosis, fibrous union of the humerus, or limitation of motion of the arm to 25 degrees from side. The evidence does not demonstrate the Veteran suffers from ankylosis or limitation of motion for the arms are limited to 25 degrees from the side for either shoulder. However, there is evidence of fibrous union of the humerus as reflected in the July 2017 private examination for both shoulders. As such a 50 percent rating is warranted for the right shoulder and a 40 percent rating is warranted for the left shoulder under DC 5202. In a May 2016 statement, the Veteran’s representative suggested extraschedular ratings may be applicable by including the rules and regulations for extraschedular consideration. However, a specific argument in favor of extraschedular rating was not provided. In an exceptional case an extraschedular rating may be provided. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. When the rating schedule is inadequate to evaluate a claimant’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (Director) for completion of the third step a determination of whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. The governing norm in these exceptional cases is a finding that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran’s service-connected right and left shoulder, including pain, atrophy, and instability, are contemplated by or the anticipated consequences of the schedular rating criteria. As noted above, the Veteran has not provided an argument as to why extraschedular is warranted. Furthermore, the Board granted increased ratings thus demonstrating the rating criteria is adequate and applicable. The Veteran’s main symptoms pertain to the atrophy and instability as the Veteran testified that seizures have resulted in multiple shoulder injuries and she has undergone many shoulder related procedures. However, the evidence does not demonstrate an exceptional disability. The symptoms described have been addressed with the applicable DC’s as reflected in 38 C.F.R. § 4.71a. During the January 2020 Board hearing the Veteran argued she has no muscle left in her shoulders as it is completely atrophied. As such the Board has considered ratings for the muscles under 38 C.F.R. § 4.73. However, the Board finds they are inapplicable. Under DC’s 5301 to 5323, muscle injury disabilities are rated as slight, moderate, moderately severe, or severe (formatted for emphasis) according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. § 4.56. The DC’s applicable to the shoulder include DC 5301 to 5304. The muscled disabilities under 38 C.F.R. § 4.73 apply to muscle injuries associated with Simple wound of muscle without debridement or infection, through and through or deep penetrating wounds which is not applicable to the Veteran. See 38 C.F.R. § 4.56. The Veteran’s shoulder disability involves strains, dislocation, and instability as a result of status post arthoplasty of the right shoulder. VA regulations require a disability is rated under a closely related disease or injury in which the functions affected, the anatomical localization, and the symptomatology are closely analogous. 38 C.F.R. § 4.20. In this case DC’s 5200, 5201, 5202, and 5203 are closely analogous to the Veteran’s shoulder impairment. 38 C.F.R. § 4.71a. Furthermore, the Board finds that assignment of a separate evaluation under a different diagnostic code, would violate the rule against pyramiding. The VA is prohibited from pyramiding, which regulations define as rating the same disability, or the same manifestation of a disability, under different diagnostic codes. 38 C.F.R. § 4.14. When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits the VA from compensating a veteran more than once for the same symptom or impairment. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017). In this case, the Veteran’s main complaints consist of atrophy and instability. As a result of this decision, the Veteran’s fibrous union of the humerus, which is analogous to the atrophy and instability, is subject to compensation. Therefore, the Board finds the Veteran’s shoulder disabilities are adequately evaluated under 38 C.F.R. § 4.71a. Accordingly, the Board finds a 50 percent rating is warranted for the right shoulder and a 40 percent rating is warranted for the left shoulder under DC 5202. REASONS FOR REMAND Entitlement to SMC The Veteran has a single service-connected disability rated as total, as she has a 100 percent rating for epilepsy. As a result of this decision she has an additional service-connected disability, adjustment disorder, independently ratable at 60 percent or more, which is separate and distinct from the 100 percent service-connected disability and involving a different anatomical segment. Also as a result of this decision, the ratings for each shoulder was increased, including an increase to 50 percent for the right shoulder. The Board notes since October 2002, the Veteran has been in receipt of SMC under 38 U.S.C. § 1114, subsection(s) and 38 C.F.R. § 3.350 on account of epilepsy rated and 100 percent and additional service-connected disabilities rated 60 percent or more. At issue is whether the Veteran is entitled to SMC at an even higher rate. Therefore, the Board finds a remand is warranted as the issue of entitlement to a higher rating for SMC pursuant to 38 U.S.C. § 1114 (s) is intertwined with the implementation of this Board’s decision by the RO. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matter is REMANDED for the following action: 1. The RO should implement the Board’s grant of an increased rating for the adjustment disorder with mixed emotional features, the right shoulder, and the left shoulder. 2. Then, readjudicate the issue of entitlement to SMC pursuant to 38 U.S.C. § 1114. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.