Citation Nr: 21026490 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-22 101 DATE: May 3, 2021 ORDER Entitlement to an initial rating for unspecified depressive disorder in excess of 30 percent prior to June 19, 2019 and in excess of 50 percent thereafter is denied. Entitlement to an initial rating in excess of 10 percent for thoracolumbar spine strain is denied. Entitlement to an initial rating for status-post left (non-dominant) shoulder arthroscopic labial repair in excess of 10 percent prior to June 19, 2019 and in excess of 20 percent thereafter is denied. Entitlement to an initial compensable rating for right ankle lateral collateral ligament sprain is denied. FINDINGS OF FACT 1. Prior to June 19, 2019, the Veteran's psychiatric disability did not produce at least occupational and social impairment with reduced reliability and productivity. From June 19, 2019, the psychiatric disability has not produced at least occupational and social impairment with deficiencies in most areas. 2. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran's back disability has not manifested forward flexion of 60 degrees or less, combined range of 120 degrees or less, or severe muscle spasm or guarding. 3. Prior to June 19, 2019, the Veteran's left shoulder disability did not result in limitation of motion to midway between side and shoulder level or at shoulder level or at least recurrent dislocation or malunion of the scapulohumeral joint. From June 19, 2019, the left shoulder disability has not resulted in limitation of motion to 25 degrees from side or at least fibrous union of the humerus. 4. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran's right ankle disability has not resulted in at least moderate limited motion. CONCLUSIONS OF LAW 1. The criteria for an initial rating for unspecified depressive disorder in excess of 30 percent prior to June 19, 2019 and in excess of 50 percent thereafter are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434. 2. The criteria for an initial rating in excess of 10 percent for thoracolumbar spine strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for an initial rating for status-post left (non-dominant) shoulder arthroscopic labial repair in excess of 10 percent prior to June 19, 2019 and in excess of 20 percent thereafter are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5202. 4. The criteria for an initial compensable rating for right ankle lateral collateral ligament sprain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from January 2013 to April 2015. The appeal originates from an October 2015 decision of a Department of Veterans Affairs (VA) Regional Office. The matter was remanded in October 2018 for VA examinations, which were obtained for the psychiatric disability, back, shoulder, and ankle in June 2019. There has been substantial compliance with the Remand directives. The Board does note that a Supplemental Statement of the Case (SSOC) was not issued for the issues of entitlement to an increased initial rating for unspecified depressive disorder and entitlement to an increased initial rating for status-post left (non-dominant) shoulder arthroscopic labial repair. In his December 2015 Notice of Disagreement (NOD), the Veteran requested a 50 percent rating for unspecified depressive disorder and a 20 percent for the left shoulder condition. VA granted a 50 percent rating for unspecified depressive disorder and a 20 percent for the left shoulder condition in a July 2020 Rating Decision. While VA did issue an SSOC covering the other issues on appeal it did not include these two issues as it considered both issues to have been fully granted. Both ratings, however, were effective June 19, 2019. The increased ratings, therefore, did no cover the entire period on appeal and cannot be said to be full grants even considering the Veterans statement on the NOD. The Board, nevertheless, will not be remanding for a SSOC regarding those issues as the July 2020 Rating Decision, issued after the Board's most recent remand, contain much the same information as an SSOC. As such, remanding for an SSOC would unduly delay the resolution of this appeal for no material benefit. Furthermore, an appellant may limit the scope of an appeal by clearly expressing an intent to exclude issues from appellate consideration. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board is of the opinion indicating on the NOD form that X percentage is the percentage sought does not clearly express a desire to abandon the appeal as it relates to a rating in excess of X percentage. When a Veteran indicates a desired percentage on the form, with the way the form is currently written, it can just as easily be read to be saying the Veteran is "at least" seeking X percentage as it can be read to read the Veteran is "only" seeking X percentage. As such, there is no clearly expressed intent to abandon the appeal as it relates to a rating in excess of the sought percentage. Given that, the Board will also address entitlement to increased ratings for both issues during the time period from June 19, 2019. 1. Entitlement to an initial rating for unspecified depressive disorder in excess of 30 percent prior to June 19, 2019 and in excess of 50 percent thereafter. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's unspecified depressive disorder is rated under Diagnostic Code 9434. A 100 percent rating requires 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; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating requires 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); inability to establish and maintain effective relationships. A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. Based on the evidence, including the August 2015 examination, the Veteran is not entitled to an initial rating in excess of 30 percent for his psychiatric disability prior to June 19, 2019. The record shows depressed mood, anxiety, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. However, the Veteran did not display such symptoms as: circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; or impaired abstract thinking. The presence, or absence, of certain symptoms is not necessarily determinative. In this regard, the totality of the evidence fails to show that the symptoms of the Veteran's psychiatric disability produced occupational and social impairment with reduced reliability and productivity. Despite reporting feelings of depression and anxiety, the Veteran maintained regular contact and relationships with others. He lived with his father, reported a satisfactory relationship with his then-girlfriend and daughter, and maintained contact with his mother and sibling. Though he did not have friends, he attributed this to concern over "bad influences" on his daughter rather than his own social impairment. He described having memory problems, but objective evaluation showed intact memory. See April 2016 Form 9. As such, in spite of disturbances of motivation and mood as well as difficulty in establishing and maintaining effective relationships, he does not seem to have had significant social impairment. With respect to education and employment, the Veteran was completing coursework towards becoming a mechanic. There is evidence of an unstable employment history prior to January 2018. See March 2017 VA 28-1902w. It appears that he had a variety of short-term employment and left due to conflict with his supervisors or failing drug testing. He then obtained full-time employment as a semi-truck driver in January 2018 but still reported being "written up" and arguing with supervisors. See June 2019 VA Examination. Notably, the Veteran is not service connected for a substance abuse disorder, and the June 2019 examiner found that his difficulty with authority most likely stemmed from personality traits and was not related to depression. The only remaining occupational impairment seems to be his report of missing work once a week due to poor motivation in June 2019. However, this has not precluded him from maintaining full-time employment for a significant period of time, which tends to indicate that he has only mild occupational impairment from his service-connected disability. Neither is the Veteran entitled to a rating in excess of 50 percent from June 19, 2019. By this time, he had married his girlfriend, had a second child, and was living with his mother. Though he reported marital strain, he has still been able to get along with his wife and has been active in parenting his children. He also reported having friendships at work and has been gainfully employed. He has not been found to have impaired judgment or thinking and did not display symptoms such as: 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); or inability to establish and maintain effective relationships. It is noted that the Veteran reported periodic, fleeting thoughts of suicidal ideation at the June 2019 examination. VA treatment records show that he denied having suicidal ideation throughout 2015 and 2016, and denied ever having suicidal ideation in June 2017. He reported passive suicidal ideation in September 2017 without detail as to the frequency or duration of symptoms. He then denied having suicidal ideation in November 2017 and later in 2018 until the examination in June 2019. He later denied suicidal ideation in December 2019. The Board finds that the facts of this case are distinguishable from the chronic and pervasive suicidal ideation reported in Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Veteran has predominantly denied having suicidal ideation and in the instances where it has been present, the evidence suggests it has been transient and infrequent. It is also not apparent what occupational and social impairment, if any, the symptom caused, as the preceding discussion evinces. As such, it cannot serve as the basis of an increased rating. The Board acknowledges the lay assertions of entitlement to an increased rating. Nevertheless, the weight of the medical and lay evidence simply does not show occupational and social impairment with reduced reliability and productivity prior to June 19, 2019 or occupational and social impairment with deficiencies in most areas thereafter. Moreover, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. 2. Entitlement to an initial rating in excess of 10 percent for thoracolumbar spine strain. The Veteran's back disability is rated under Diagnostic Code 5237 under the General Rating Formula for Diseases and Injuries of the Spine. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 100 percent rating requires unfavorable ankylosis of the entire spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5237 was not substantively changed. Changes to Diagnostic Code 5243, which pertains to intervertebral disc syndrome (IVDS), arguably creates a more restrictive application as it now directs to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and to otherwise assign diagnostic code 5242 for all other disc diagnoses. However, it is again noted that the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS Based on Incapacitating Episodes did not change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 32000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Based on the evidence, including the August 2015 and June 2019 examinations, the Veteran is not entitled to an initial rating in excess of 10 percent for his back disability. He has not had forward flexion of 60 degrees or less, combined range of motion of 120 degrees or less, or severe muscle spasm or guarding. His forward flexion and combined range of motion have been, at worst, limited to 70 and 160 degrees respectively with repeated use over time and during flareups, including consideration of passive use. The examiners specifically found that he did not have muscle spasm or guarding or IVDS, and he was not found to have abnormal gait or spinal contour despite tenderness noted on examination in August 2015. Such precludes a rating in excess of 10 percent for the back disability. The Board notes the Veteran's contention that he has back spasms. See May 2016 Form 9. Even assuming such to be the case, he was specifically found not to have abnormal gait or spinal contour. It is also noted that the Veteran received emergency treatment for back pain in December 2019. Though he reported numbness and tingling down the bilateral lower extremities, no diagnosis of radiculopathy was made at that time or previously. 3. Entitlement to an initial rating for status-post left (non-dominant) shoulder arthroscopic labial repair in excess of 10 percent prior to June 19, 2019 and in excess of 20 percent thereafter. The Veteran's left shoulder disability is rated under Diagnostic Code 5201 for limitation of motion of the arm. Prior to February 7, 2021, for the minor arm, a 30 percent rating required limitation of motion to 25 degrees from side. A 20 percent rating required limitation of motion to midway between side and shoulder level or at shoulder level. From February 7, 2021, for the minor arm, a 30 percent rating requires flexion and/or abduction limited to 25 degrees from side. A 20 percent rating requires limitation of motion to midway between side and shoulder level (flexion and/or abduction limited to 45°) or at shoulder level. Diagnostic Code 5202 addresses other impairment of the humerus. Prior to February 7, 2021, for the minor arm, a 70 percent rating required loss of head of (flail shoulder). A 50 percent rating requires nonunion of (false flail joint). A 40 percent rating requires fibrous union of the humerus. A 20 percent rating requires recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements or with infrequent episodes, and guarding of movement only at shoulder level or malunion with marked or moderate deformity. From February 7, 2021, for the minor arm, a 70 percent rating requires loss of head of (flail shoulder). A 50 percent rating requires nonunion of (false flail joint). A 40 percent rating requires fibrous union of the humerus. A 20 percent rating requires recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements or with infrequent episodes, and guarding of movement only at shoulder level (flexion and/or abduction at 90°) or malunion with marked or moderate deformity. Based on the evidence, including the August 2015 and June 2019 examinations, the Veteran is not entitled to an increased rating at any time during the appeal. He has had, at worst, flexion, abduction, external rotation, and internal rotation limited to, 140, 140, 50, and 50 degrees respectively with repeated use over time and flareups, including consideration of passive use. Such does not constitute limitation of motion to even midway between side and shoulder level or at shoulder level to warrant an increased rating. The June 2019 examiner indicated frequent episodes of recurrent dislocation of the scapulohumeral joint but no other impairment of the humerus. It is not factually ascertainable as to when this was present prior to June 19, 2019, and the Veteran has been found not to have fibrous union of the humerus. In other words, under the former or revised rating criteria, an increased rating is not warranted whether based on limitation of motion or impairment of the humerus. 4. Entitlement to an initial compensable rating for right ankle lateral collateral ligament sprain. The Veteran's right ankle disability is rated under Diagnostic Code 5271. Prior to February 7, 2021, a 20 percent rating required marked limited motion. A 10 percent rating required moderate limited motion. From February 7, 2021, a 20 percent rating requires marked limited motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). A 10 percent rating requires moderate limited motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). Based on the evidence, including the August 2015 and June 2019 examinations, the Veteran is not entitled to an initial compensable rating for his right ankle disability. He reported pain on uneven surfaces and flareups in August 2015, but testing revealed normal range of motion. The examiner found that there would be slight limitation of dorsiflexion (to 15 degrees) with flareups but normal plantar flexion. In June 2019, he denied having flareups and indicated that his symptoms had not gotten better or worse since the last examination. Range of motion was again normal. There is simply no basis for an increased rating for the right ankle. The Veteran has had only slight limitation of dorsiflexion during flareups (with no limitation of plantar flexion). Such mild limitation does not warrant an increased rating under the revised rating criteria (less than 15 degrees dorsiflexion) and cannot be reasonably construed as moderate limited motion under the former criteria. The Court of Appeals for Veterans Claims has established that reports of flare-ups of symptomatology must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flareups has not been particularly clear. However, the Board finds overall wisdom in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Flareups must be quantifiable and result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flareup must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran's reports of experiencing flareups of the back, left shoulder, and ankle. The contemporaneous treatment records contain little, if any, findings pertaining to flareups much less information regarding his functional ability during a flareup or after repeated use over time. The additional limitation (functional loss) experienced by the Veteran due to pain was accounted for by the examiners when determining his ranges of motion (including during flareups). As to his reports of pain, weakness, lack of endurance, and similar complaints, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Therefore, the Board finds that the currently assigned ratings for the musculoskeletal disabilities adequately contemplate the documented and reported functional limitations. Mitchell, supra. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.