Citation Nr: 21031265 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 19-07 588 DATE: May 21, 2021 ORDER Entitlement to an initial evaluation in excess of 30 percent for an acquired psychiatric disorder, to include generalized anxiety, is denied. Entitlement to an initial evaluation in excess of 20 percent for a right shoulder disability manifested by limitation of motion is denied. Entitlement to an initial evaluation in excess of 20 percent for a right shoulder disability, to include recurrent dislocations, is denied. Entitlement to an initial evaluation in excess of 20 percent for a left shoulder disability, to include arthritis, is denied. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder, to include generalized anxiety, is manifested throughout the appeal period by mild to no more than moderate symptomatology, including anxiety, irritability, sleep disturbance, mild memory loss, resulting occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran's right shoulder disability is not manifest by range of motion limited to midway between side and shoulder level, ankylosis of the scapulohumeral articulation, or impairment of the humerus joint. The Veteran is right handed. 3. The Veteran experiences recurrent dislocation of the right shoulder that is manifest by infrequent episodes and guarding of movement only at shoulder level. Fibrous union is not demonstrated. 4. The Veteran's left shoulder disability is manifested by loss of range of motion of the arm, but not to flexion and/or abduction limited to 25 degrees from side, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for an acquired psychiatric disorder, to include generalized anxiety, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9400 (2019). 2. The criteria for an initial evaluation in excess of 20 percent for the Veteran's right shoulder disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5201 (2019). 3. The criteria for a rating in excess of 20 percent for instability of the right shoulder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5202 (2019). 4. The criteria for a rating in excess of 20 percent disabling for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5201 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from September 2007 to October 2008. As an initial matter, the Board notes that the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) was not appealed by the Veteran according to his March 2019 VA-Form 9, and he was notified that that issue was not on appeal by a March 2019 letter from the Reginal Office (RO), with a copy to the Veteran's representative. Therefore, the issue of service connection for PTSD is not before the Board. Increased Rating Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of the assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (i.e., "staged ratings"). Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial evaluation in excess of 30 percent for an acquired psychiatric disorder, to include generalized anxiety The Veteran's acquired psychiatric disorder, to include generalized anxiety, has been assigned an initial evaluation of 30 percent throughout the appeal period pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9400. The rating criteria pertaining to the Veteran's appeal is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent evaluation contemplates 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, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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. Id. A 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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 work-like setting; and an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. As noted above, the Veteran's acquired psychiatric disorder, to include generalized anxiety, has been assigned an evaluation of 30 percent throughout the appeal period. After reviewing the evidence of record under the laws and regulations as set forth above, the Board concludes that the preponderance of the evidence weighs against the assignment of an evaluation greater than 30 percent at any point during the appeal period. Turning to the record, in August 2016 the Veteran was afforded a VA examination in connection with his claim. At the time of the examination, the examiner found that the Veteran did not have a diagnosis of PTSD. Rather, diagnoses of unspecified anxiety disorder and unspecified depressive disorder were rendered. The Veteran reported that he was married twice and that he had three children from his first marriage. He stated that he had primary custody of the children and that they have a pretty good relationship. He reported that he had really good and supportive relationship with his current wife. The Veteran denied any friendships, stating that he did not do well with people. He indicated that he spent his time playing games with his kids and that he and his wife go out to eat 2 to 3 times a month. At the time of the examination, the Veteran reported that he worked for the company since 2005 and was currently a software engineer. He reported that he received good performance evaluations at his job. The examiner observed that the Veteran presented for the examination appropriately groomed and dressed. His personal hygiene and his eye contact were good. The Veteran was cooperative. The examiner noted that the Veteran appeared somewhat anxious. The Veteran reported that his mood was normally mellow, other than his angry episodes. His attention and concentration were intact. The Veteran's mental status was otherwise within normal limits. VA treatment notes from September 2016 indicate that the Veteran presented for mental health treatment. At the time of the encounter, the Veteran was calm and cooperative and his speech had normal rhythm and flow. The Veteran reported his mood as OK, and his affect was congruent to topics discussed. His thought content and goals were oriented. There was no evidence of thought disorder noted. The Veteran was alert and oriented in all four spheres. He denied any suicidal or homicidal ideation. In January 2017, the Veteran obtained a private mental health examination. Diagnoses of PTSD, major depressive disorder, and generalized anxiety disorder were found. The private examiner described that the Veteran was currently suffering with all aspects of depression related to struggles with physical disability and military lack of support. At one time, the examiner explained, the Veteran became dependent on alcohol while deployed in Iraq and he was hospitalized for alcohol poisoning. Ultimately, the examiner determined that the Veteran clearly met the criteria of PTSD and he had suffered a long time regarding his experience in the military both physically and emotionally. The private examiner determined that the Veteran was burdened with an abusive environment on a regular basis at the hands of his platoon sergeant and the physical injuries he endured have contributed to years of unnecessary suffering and a complete sense of dismissive abandonment from the military. Next, a mental health note from June 2018 VA treatment records reveals that the Veteran presented on time and he was appropriately dressed and groomed. He was alert and fully oriented. He maintained good eye contact and his mood was anxious and he had a blunted affect. The Veteran's motor activity was observed throughout the session. His speech was clear and, coherent and his thoughts were linear and logical. The Veteran's judgment and self-awareness were intact. The Veteran did not report any hallucinations or delusions and there was no evidence of any observed. The Veteran denied any acute symptoms or concerns for suicidal or homicidal ideation. Ultimately, in considering the evidence discussed above, as well as all other evidence of record, the Board finds that the evidence does not support the assignment of an initial evaluation in excess of 30 percent for an acquired psychiatric disorder, to include generalized anxiety, at any point during the appeal period. The Veteran did not report difficulty in occupational or social functioning sufficient to more closely approximate a higher evaluation, and at no time does the objective evidence of record find the Veteran suffered from impaired abstract thinking, speech, judgment, insight or ability to understand complex commands. In fact, the Veteran consistently reported that he was able to maintain relationships with his family, to include maintaining primary custody of his three children. Although the Veteran may have experienced some symptoms congruent with a higher evaluation, the Board concludes that the type and degree of symptoms demonstrated during the appeal period are of similar frequency and severity as those contemplated for a 30 percent disability rating throughout the appeal. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Board acknowledges the Veteran's contentions that his service-connected acquired psychiatric disorder, to include generalized anxiety, warrants an increased initial evaluation. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected acquired psychiatric disorder, to include generalized anxiety disorder. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the Veteran's claim for an increased initial evaluation at any point during the Veteran's appeal. Therefore, an initial evaluation in excess of 30 percent for an acquired psychiatric disorder, to include generalized anxiety, is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to an initial evaluation in excess of 20 percent for a right shoulder disability manifested by limitation of motion 3. Entitlement to an initial evaluation in excess of 20 percent for a right shoulder disability, to include recurrent subluxations Throughout the relevant rating period, the Veteran's service-connected right shoulder disability has been rated variably under 38 C.F.R. § 4.71a , Diagnostic Code 5201, based on limitation of motion of the arm; and 38 C.F.R. § 4.71a, and Diagnostic Code 5202, based on recurrent dislocation of the scapulohumeral joint. Those diagnostic codes provide ratings for separate disabilities, and the simultaneous award of separate ratings under those diagnostic codes does not constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. With respect to joints in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Diagnostic Code 5201 provides for limitation of motion for the major arm to shoulder level with flexion and/or abduction limited to 90 degrees at 20 percent, and to midway between side and shoulder level with flexion and/or abduction limited to 45 degrees at 30 percent, and flexion and/or abduction limited to 25 degrees from side at 40 percent. The Veteran is right handed. Normal range of motion for the shoulder is flexion (forward elevation) from 0 degrees to 180 degrees. See 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5202, recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level warrants a 20 percent rating for the major side. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Recurrent dislocation with frequent episodes and guarding of all arm movement warrants a 30 percent rating. Fibrous union of the humerus warrants a 50 percent rating in the minor extremity. Nonunion of the humerus (false fail joint) warrants a 60 percent rating. Turning to the record, in August 2016 the Veteran was afforded a VA examination in connection with his claim. Diagnoses of right rotator cuff tendonitis, bilateral rotator cuff tear, labral tear, including SLAP, and left should bursitis were rendered. Range of motion testing in the right shoulder revealed flexion limited to 130 degrees and abduction limited to 100 degrees. There was objective evidence of right shoulder crepitus. Muscle strength testing was normal bilaterally. There was no evidence of muscle atrophy or ankylosis bilaterally. The examiner noted a history of bilateral shoulder instability and a history of recurrent dislocation bilaterally with frequent episodes noted. The examination was negative for impairments of the humerus. Private treatment records from March 2017 reveal that the Veteran had arthroscopic surgery on his right shoulder. After the surgery, the private physician recommended physical therapy. In July 2018, another VA examination was conducted to determine the severity of the Veteran's right shoulder disabilities. The examiner noted that the Veteran was currently being treated for complicated right and left shoulder surgeries and poor recovery in the right shoulder. It was noted that the Veteran's right shoulder had limited range of motion with difficulty lifting. The Veteran reported sporadic dislocation, which he stated he resets with his wife. Range of motion testing for the right shoulder revealed flexion limited to 70 degrees and abduction limited to 70 degrees. There was evidence of pain with weight bearing, localized tenderness or pain of palpation, and objective evidence of crepitus. The examiner noted that the Veteran had less movement than normal due to ankylosis, adhesions, swelling, disturbances of locomotion, and interference with standing for the right shoulder. Muscle strength testing was reduced to active movement against gravity for the right shoulder. The examiner noted a history of mechanical symptoms bilaterally and infrequent episodes of recurrent dislocation of the right shoulder. The examiner did not note any suspected clavicle, scapula, acromioclavicular joint or sternoclavicular joint disorders. There were no noted disorders or impairments of the humerus observed. Diagnostic testing revealed degenerative arthritis in the bilateral shoulders. Based on the above, evidence, the Board finds that evaluations in excess of 20 percent for either Diagnostic Code 5201 or 5202 for the Veteran's right shoulder disabilities are not warranted. Specifically, with respect to limitation of motion of the right shoulder there is no medical evidence that indicates range of motion is limited to no more than midway between side and shoulder level with flexion and/or abduction limited to 45 degrees or that he was diagnosed with ankylosis of the scapulohumeral articulation, or impairment of the humerus joint. Likewise, the evidence of record shows that the Veteran is entitled to a 20 percent rating for his right shoulder dislocations under Diagnostic Code 5202 for the entire period on appeal. The evidence shows that while August 2016 VA examiner noted that the Veteran had frequent dislocation of both shoulders, the later July 2018 VA examiner found that the Veteran had infrequent episodes of dislocation. Moreover, at no time is the Veteran reported to have guarding of all arm movements. Finally, there is no evidence of fibrous union, nonunion, or loss of head of the humerus for higher ratings. The Board acknowledges the Veteran's subjective complaints of pain throughout his ranges of motion. However, the Board notes the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the right shoulder to less than those levels discussed above and, as such, does not serve as a basis for an increased evaluation at any point during the appeal period. See Mitchell, 25 Vet. App. at 32 ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."). The Board also acknowledges the Veteran's contentions that his service-connected right shoulder disabilities warrant an evaluation greater than 20 percent for the entire period on appeal under Diagnostic Codes 5201 and 5202. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected right shoulder disability. Moray, 2 Vet. App. at 214; see also Davidson, 581 F.3d 1313. As such, for the reasons discussed above, the Board finds that a preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent for the Veteran's right shoulder disabilities under Diagnostic Codes 5201 and 5202, and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b) (2012); Gilbert, 1 Vet. App. at 55. 4. Entitlement to an initial evaluation in excess of 20 percent for a left shoulder disability, to include arthritis The Veteran's left shoulder disability has been evaluated 20 percent disabling pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5201 (2019). As noted above, the Veteran is right-handed; therefore, the left shoulder disability will be evaluated as the "minor" joint. This disability is rated under DC 5010-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the disability rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2019). DC 5010 pertains to arthritis due to trauma substantiated by x-ray findings. DC 5201 pertains to limitation of motion of the arm. 38 C.F.R. § 4.114, Diagnostic Codes 5010, 5201. Traumatic arthritis is to be rated on the basis of limitation of motion. When however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71, Diagnostic Code 5010. Turning to the record, the Veteran was afforded a VA examination in August 2016 to determine the severity of the Veteran's service-connected left shoulder disability. Diagnoses of right rotator cuff tendonitis, bilateral rotator cuff tear, labral tear, including SLAP, and left should bursitis were rendered. Left shoulder range of motion testing revealed flexion limited to 120 degrees and abduction limited to 90 degrees. There was objective evidence of left shoulder crepitus. Muscle strength testing was normal bilaterally. There was no evidence of muscle atrophy or ankylosis bilaterally. The examiner noted a history of bilateral shoulder instability and a history of recurrent dislocation bilaterally with frequent episodes noted. The examination was negative for impairments of the humerus. Diagnostic testing revealed left shoulder degenerative arthritis. Another VA examination was conducted in July 2018 in connection with the Veteran's claim. Range of motion testing for the left shoulder revealed flexion limited to 160 degrees and abduction limited to 160 degrees. There was objective evidence of crepitus for the left shoulder. Muscle strength testing was normal in the left shoulder. The examiner noted a history of mechanical symptoms bilaterally and infrequent episodes of recurrent dislocation of the right shoulder. The examiner did not note any suspected clavicle, scapula, acromioclavicular joint or sternoclavicular joint disorders. There were no noted disorders or impairments of the humerus observed. Diagnostic testing revealed degenerative arthritis in the bilateral shoulders. Based on the above, evidence, the Board finds that an evaluation in excess of 20 percent for the Veteran's left shoulder disability is not warranted. In this regard, there is no medical evidence that indicates range of motion is limited to no more than midway between side and shoulder level (flexion and/or abduction limited to 90 degrees) or midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees), or that he was diagnosed with ankylosis of the scapulohumeral articulation, or impairment of the humerus joint. The Board acknowledges the Veteran's subjective complaints of pain throughout his ranges of motion. However, the Board notes the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the left shoulder to less than those levels discussed above and, as such, does not serve as a basis for an increased evaluation at any point during the appeal period. See Mitchell, 25 Vet. App. at 32 ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."). The Board also acknowledges the Veteran's contentions that his service-connected left shoulder disability warrants an evaluation greater than 20 percent for the entire period on appeal. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected left shoulder disability. See Moray, 5 Vet. App. at 214; see also Davidson, 581 F.3d at 1313. As such, for the reasons discussed above, the Board finds that a preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent for the Veteran's left shoulder disability, and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b) (2012); Gilbert, 1 Vet. App. at 55. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.