Citation Nr: 20052853 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 19-14 862A DATE: July 3, 2021 ORDER Entitlement to service connection for traumatic brain injury is granted. Entitlement to service connection for a left knee disorder is granted. Entitlement to service connection for a right knee disorder is granted. Entitlement to service connection for a thoracolumbar spine disorder is denied. Entitlement to service connection for a left shoulder disorder is denied. Entitlement to a disability rating higher than 50 percent for service-connected posttraumatic stress disorder (PTSD) with unspecified depressive disorder is denied. REMANDED Entitlement to a disability rating higher than 20 percent for the service-connected limitation of motion associated with the service-connected right (dominant) shoulder disability is remanded. Entitlement to a disability rating higher than 20 percent for the service-connected recurrent dislocation associated with the service-connected right (dominant) shoulder disability is remanded. FINDINGS OF FACT 1. A traumatic brain injury is related to service. 2. A left knee disorder is related to service. 3. A right knee disorder is related to service. 4. A thoracolumbar spine disorder is not related to service. 5. A left shoulder disorder is not related to service. 6. The Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for traumatic brain injury are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a left knee disorder are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.317. 3. The criteria for entitlement to service connection for a right knee disorder are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.317. 4. The criteria for entitlement to service connection for a thoracolumbar spine disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.317. 5. The criteria for entitlement to service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.317. 6. The criteria for a disability rating higher than 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service in the Marine Corps from December 2005 to December 2010. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is a component of the increased rating claim(s) on appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). However, the Veteran does not contend that his service-connected have rendered unable to secure or follow a substantially gainful occupation. The evidence indicates that he is fully employed. See Faust v. West, 13 Vet. App. 342 (2000) (where an individual is employed at a substantially gainful occupation, irrespective of the number of hours or days that individual actually works, such employment constitutes, as a matter of law, a substantially gainful occupation and thus actual employability). VA added additional potentially relevant treatment records to the claims file subsequent to the most recent adjudication of his appeal by the agency of original jurisdiction. In argument submitted in August 2020, the Veteran waived jurisdiction of these claims. The Veteran's attorney argues that the rating issue includes the effective date of the separate rating for right shoulder dislocation (Record 07/23/2020). The Board acknowledges that there is a separate appeal of entitlement to an effective date earlier than January 9, 2019, for the grant of service connection for right shoulder dislocation under the modernized appeal system. As the current appeal is under the legacy appeals system, the effective date issue will be addressed in a separate Board decision. Service ConnectionLaw and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is included among the presumptive chronic diseases. There are three types of qualifying chronic disabilities available based on service in the Southwest Asia Theater of operations: (a) an undiagnosed illness; (b) a medically unexplained chronic multisymptom illness; and (c) any diagnosed illness as determined by the VA Secretary." 38 U.S.C. § 1117; 38 C.F.R. § 3.317; Disabled Am. Veterans v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1074 (Fed. Cir. 2017). Compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a "qualifying" chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term "objective indications of chronic disability" includes both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: Fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: chronic fatigue syndrome; fibromyalgia; functional gastrointestinal disorders (excluding structural gastrointestinal diseases); any diagnosed illness that the VA Secretary determines warrants a presumption of service-connection; or any other illness that the Secretary determines meets the criteria for a medically unexplained chronic multisymptom illness. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability shall be considered service connected for purposes of all laws of the United States. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(4). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times and it currently ends December 31, 2021. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for traumatic brain injury. Service treatment records do not record a traumatic brain injury during service. The Veteran was discharged on December 6, 2010. A March 1, 2011, mental health addendum reveals that the Veteran endorsed possible a traumatic brain injury from falling off a helicopter (Record 01/04/2018 at 12). A March 2, 2011, traumatic brain injury consult reveals that there was no current clinical evidence of traumatic brain injury. The examiner noted that, by history, he likely sustained about three mild concussions during his deployments and one significant concussion stateside. He seemed to have good resolution of symptoms from them all. The Veteran had mild cognitive dysfunction due to mental health issues and not from past concussions (Record 01/04/2018 at 8). A March 2, 2011, traumatic brain injury second level evaluation reveals a reported injury in 2007 from a blast, resulting in confusion for less than 30 minutes. In his last two deployments he was exposed to many blasts from mortars and RPGs. Three blasts resulted in a brief alteration of consciousness without loss of consciousness. On one occasion he was knocked down from the blast of a mortar that hit about 25 yards from him resulting in hearing loss and ringing. He was dizzy and nauseous for about 24 hours and was off duty for a couple of days. In the other two instances the symptoms were rather brief. While stationed in California in 2008 a large crate of books fell onto the back on his head and neck resulting in a loss of consciousness for about three hours. He was taken to the hospital and observed for eight hours then sent home for 10 days. After the 10 days, he returned to duty. The examiner found that the history of the injury and the course of clinical symptoms were consistent with a diagnosis of traumatic brain injury sustained during the Veteran's deployment (Record 01/04/2018 at 29). An October 3, 2011, VA mental health note reveals that the Veteran received hostile incoming fire from small arms, artillery, rockets, mortars, and was ambushed in service (Record 01/24/2017 at 65). A March 12, 2020, traumatic brain injury screen reveals a positive screen (Record 02/04/2021 at 199). In a March 12, 2020, clinical note, the Veteran reported a history of traumatic brain injury when he was in-loading for a mission. He stated it was slick out and he was climbing up on top of a helicopter when he fell 10-12 feet and hit his head and blacked out. He reported occasional memory deficits (Record 02/04/2021 at 165). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a traumatic brain injury are met. While a traumatic brain injury is not documented during service, the Veteran has provided competent evidence that he sustained head injury on multiple occasions during service. The March 2, 2011, traumatic brain injury second level evaluation finding that the history of the injury and the course of clinical symptoms were consistent with a diagnosis of traumatic brain injury sustained during the Veteran's deployment provides probative and persuasive evidence that the Veteran sustained such an injury. While there is conflicting evidence indicating that the symptomatology reported by the Veteran is due to such injury, or due to his service-connected PTSD, this evidence does not discount the occurrence of injury, but speaks instead to the manifestations and severity of the residuals of the injury. This is a rating matter, which is not determinative of entitlement to service connection. Accordingly, to the extent of any reasonable doubt in the record, such is resolved in favor of the claim. The Board concludes that service connection for traumatic brain injury is warranted. As this represents the full benefit sought on appeal, there is no prejudice resulting from any deficiency in the duties to notify or assist. Entitlement to service connection for a left knee disorder. Entitlement to service connection for a right knee disorder. Service treatment records do not record a specific knee injury during service. However, a post-deployment health assessment on April 10, 2010, reveals the Veteran's report of knee pain (Record 01/13/2011 at 68). A report of medical history completed by the Veteran on July 20, 2010, reveals the Veteran's statement that "My knees will give out on me a lot if working really long hours and carrying large heavy loads" (Record 01/13/2011 at 66). A September 28, 2010, examiner's summary notes that the Veteran was evaluated for chronic joint pain (right shoulder, left wrist, bilateral knee, bilateral ankle) (Record 01/13/2011 at 27). The Veteran was discharged from service on December 6, 2010. A February 7, 2011, VA primary care note reveals the Veteran's complaint that his knees are "bad." The examiner assessed symptoms of pain and instability in the knees (Record 01/04/2018 at 60). A June 2, 2011, clinical note reveals a notation of osteoarthrosis involving the knee (Record 01/04/2018 at 21). An October 3, 2011, VA mental health note reveals complaint of pain in his knees (Record 01/24/2017 at 65). A VA Examination of the knees in March 2017 reveals the Veteran's report of symptom onset in 2006. His knees started hurting when doing his military training. The examiner diagnosed bilateral knee strain (Record 03/22/2017). The examiner opined that the knee conditions were less likely than not (less than 50 percent probability) related to service. The rationale was that there is an absence of supporting evidence of a chronic or recurrent bilateral knee diagnosis or condition during military service. "I cannot link the current bilateral knee condition to military service. Therefore, the currently diagnosed bilateral knee strain is less likely than not incurred in or caused by the pain and injury that occurred during service" (Record 03/22/2017). A March 12, 2020, clinical note reveals a notation of traumatic arthritis of the knees and shoulders (Record 02/04/2021 at 186). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a bilateral knee disorder are met. The Board acknowledges that the only medical opinion is against a relationship to service, and that the examiner only diagnosed a strain. However, the examiner did not order X-rays, so the basis for the diagnosis is uncertain. Subsequent evidence supports a diagnosis of arthritis. Moreover, the rationale for the opinion was that there is an absence of supporting evidence of a chronic or recurrent bilateral knee diagnosis or condition during military service. However, while arthritis was not noted in service, it was noted during the 1-year presumptive period, in June 2011. The Board takes notice that "osteoarthrosis" is a type of arthritis. See Dorland's Illustrated Medical Dictionary 1366 (31st ed. 2007). The presumptive chronic diseases include arthritis and are not specific as to any particular type of arthritis. The presumption of service connection for arthritis only applies if the disease is manifest to a degree of 10 percent or more during service or within the presumptive period. While the diagnostic code for arthritis requires X-ray evidence, and such did not exist, any joint disability may be assigned a rating of 10 percent based on painful motion under 38 C.F.R. § 4.59. The February 7, 2011, VA primary care note confirms the Veteran's complaint of pain in both knees. Accordingly, the presumption of service connection attaches with respect to the bilateral knees and service connection is warranted. As this represents the full benefit sought on appeal, there is no prejudice resulting from any deficiency in the duties to notify or assist. Entitlement to service connection for a thoracolumbar spine disorder. Service treatment records reveal no complaint of, treatment for, or diagnosis pertaining to a back disorder. A post-deployment health assessment on April 10, 2010, reveals there was no back pain, swollen, stiff, or painful joints, or muscle aches. The Veteran was discharged on December 6, 2010, and filed the current claim six years later. A July 11, 2012, VA triage note reveals complaint of back pain for one day. The Veteran was injured in a motor vehicle accident the day before. The Veteran reported that he went to a local emergency room and was referred to his primary care provider (Record 01/24/2017 at 29). A subsequent treatment note indicates that he was the restrained passenger in the front seat. The car was at a full stop and was rear-ended by another vehicle. He started feeling pain on the back of his neck down to his tail bone with tingling hands approximately an hour after the incident (Record 01/24/2017 at 22). A March 12, 2020, clinical note reveals that a lumbar back examination was performed. There was no tenderness to palpation (Record 02/04/2021 at 186). An October 28, 2020, telephone note reveals the Veteran's complaint of middle back spasms (Record 02/04/2021 at 80). A November 16, 2020, addendum reveals the Veteran complained that his back was "out of whack" and he wanted to see a chiropractor (Record 02/04/2021 at 66). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a back disorder are not met. The Board finds that there was no injury or disease of the back service. This finding is bolstered by the post-deployment examination notation that he had no back pain. The first reference to a back disorder was attributed to a post-service motor vehicle accident. The Veteran has not been diagnosed with arthritis of the thoracolumbar spine or any other presumptive chronic disease of back. Therefore, the presumptive provisions do not apply. The Veteran's back complaints have been attributed to known diagnoses, including neurological impingement and muscle spasm. Accordingly, the Gulf War provisions do not apply. There is no medical opinion that purports to relate current back complaints to service. As there was no injury or disease of the back in service, and not even an inconclusive opinion suggesting a nexus to service or a service-connected disability, a VA examination is not necessary to resolve this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), but see Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) (a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of McLendon). In sum, the Board finds that the claimed back disorder is not related to service or to a service-connected disability. In light of these findings of fact, the Board concludes that service connection for the claimed back disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Entitlement to service connection for a left shoulder disorder. Service treatment records reveal that on examination on August 6, 2006, the Veteran reported right shoulder pain for three days. There was no pain or swelling in the left shoulder. There was no deformity, no winged scapula, no atrophy of muscles, and no tenderness to palpation (Record 01/13/2011 at 52). An examination on November 16, 2006, reveals the Veteran's primary complaint of right shoulder pain. On examination, both shoulders had full range of motion without pain. There was no dislocation. There was no weakness. The diagnosis was arthropathy of the shoulder region; joint pain localized in the shoulder; joint stiffness of the shoulder; and subluxation of the anterior right shoulder. While the examiner used the plural (shoulders) in describing subluxation and laxity, the diagnosis of subluxation pertained only to the right shoulder (Record 01/13/2011 at 47). A post-deployment health assessment on April 10, 2010, reveals the Veteran's report of right shoulder pain. He did not mention the left shoulder. There were no swollen, stiff, or painful joints, or muscle aches (Record 01/13/2011 at 68). An October 3, 2011, VA mental health note reveals complaint of pain in his shoulders and lower back (Record 01/24/2017 at 65). A January 11, 2012, clinical note reveals complaint of left shoulder pain of two weeks duration. However, this was related to sleeping on an air mattress, with no history of trauma. The Veteran stated it felt like a pinched nerve. (Record 01/04/2018 at 36). A March 12, 2020, clinical note reveals a notation of traumatic arthritis of the knees and shoulders (Record 02/04/2021 at 186). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a left shoulder disorder are not met. While the Veteran has a service-connected right shoulder disability, this resulted from a discrete injury of the right shoulder in service. The service treatment records pertinent to that injury do not discuss or identify a left shoulder injury. The Board acknowledges that the Veteran complained of left shoulder pain shortly after discharge. However, no left shoulder disability was identified. His next complaint of left shoulder pain was attributed to sleeping on an air mattress. Shortly thereafter, the Veteran sustained a neck injury in July 2012 with bilateral shoulder pain and numbness since the injury (Record 01/24/2017 at 31). This injury occurred after service and there is no service-connected neck disability. While the Veteran currently has arthritis of the left shoulder, this disease was not identified or confirmed for many years after service separation. Regarding continuity of symptomatology, for that provision to apply, there must be notation of the chronic disease in service. The natural reading of the condition noted in service is a condition indicative of a chronic disease, but not dipositive, i.e., not sufficiently indicative to demonstrate that the chronic disease is shown to be chronic. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). While the evidence need not be documentary (Savage v. Gober, 10 Vet. App. 488, 496 (1997)) it must be competent. Id, at 497. The Veteran, as a lay person is not competent to identify the presence of arthritis. He is competent to identify shoulder pain. However, this is not a notation of arthritis in service. Therefore, there is no presumption of service connection for arthritis of the left shoulder. The Veteran's complaints have been attributed to the known diagnosis of arthritis. Accordingly, the Gulf War provisions do not apply. There is no medical opinion that purports to relate current left shoulder arthritis to service. As there was no injury or disease of the left shoulder in service, and not even an inconclusive opinion suggesting a nexus to service or a service-connected disability, a VA examination is not necessary to resolve this claim. In sum, the Board finds that the claimed left shoulder disorder is not related to service or to service-connected disability. In light of these findings of fact, the Board concludes that service connection for the claimed left shoulder disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased RatingsLaw and Regulations 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 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, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 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, supra; 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). In the process of evaluating a psychiatric/mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran's psychiatric symptoms and the veteran's capacity for adjustment during periods of remission. After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering rather than based solely on the examiner's assessment of the level of disability at the moment of examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126. The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, the VA Secretary anticipated that any list of symptoms justifying a particular rating would, in many situations, be either under- or over-inclusive. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. Since August 4, 2014, VA has required a diagnosis of a mental disorder that conforms with the DSM5. For claims prior to that date, VA required a diagnosis that conformed with the DSMIVTR. See Schedule for Rating Disabilities: Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093, 45,093 94 (Aug. 4, 2014 (amending 38 C.F.R. § 4.125)). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Psychiatric disorders are to be rated on the severity, frequency, and duration their respective signs and symptoms. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Entitlement to a disability rating higher than 50 percent for PTSD. The current appeal arises from a claim received at VA on November 22, 2016. In a May 2017 rating decision, VA granted service connection for a mental disability and assigned an initial disability rating of 50 percent under Diagnostic Code 9411, effective September 30, 2016, the date of receipt of a VA Form 21-22 (Appointment of Individual as Claimant's Representative). While this document did not include a claim or intent to file a claim, as the effective date is favorable to the Veteran, the Board finds no prejudice. Pertinent to the claim on appeal, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A 100 percent rating contemplates 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, may be assigned for 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 work-like setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 50 percent rating is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent rating is warranted for PTSD if 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, or mild memory loss (such as forgetting names, directions, recent events). A 10 percent rating is warranted for PTSD if there is 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 0 percent rating is warranted where a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A VA Examination of mental diseases in March 2017 reveals a social history of going through his second divorce. He had trouble maintaining relationships. He had a good relationship with a sister and one other sibling. He would call his mother daily. His girlfriend and a couple of friends were in his support circle, but he reported difficulty making and maintaining friendships. He had a supportive girlfriend whom he could talk to, and who supported him emotionally. After discharge, he went through five jobs in five months, due largely to symptoms of PTSD that created problems at work with performance and absenteeism. At that time, he was on unemployment and homeless for almost two years. He then got a job with a pool cleaning company and was head of sales for the last four years. He had a job with a mattress company but could not get into upper management. He is a high school graduate with two years of college but had to stop due to "symptoms" and had given up on returning. He had no legal problems, but had some problems related to angera short fuse. He had been in one fistfight, and had punched walls and broken private property, but had been better in the last two years. He still would slam doors. Current symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and suicidal ideation. On examination, the Veteran was well dressed and groomed. He was alert and oriented in all spheres. He expressed logical and coherent thoughts. He was tense, anxious, and irritable, verbalizing his frustration with the process of getting benefits. He was responsive and able to become less agitated during the session. The examiner diagnosed PTSD, unspecified depressive disorder, and ADHD. The majority of his symptoms were consistently attributable to PTSD. The examiner assessed occupational and social impairment with reduced reliability and productivity (Record 03/21/2017). A VA Examination of mental diseases in January 2019 reveals the Veteran had a few friends; he enjoyed hunting, fishing, and barbecuing. Hobbies included hunting and fishing. He volunteered for park and wildlife duties in hunter education. He reported no social club memberships/teams. He described his relationship with his fiancé as: "I think we're a great team." He had children ages seven (stepson), and 14 months (son), stating "I love my boys." The Veteran and fiancé began sleeping in separate bedroom in 2017 due to his snoring and nightmares. He was still working in sales for his family's pool company and he owned a hunting and outfitting company that organizes and executes trips for hunters. In his sales job, he received mixed performance feedback because of temper and interpersonal problems with employees. He described doubt, isolative behaviors, and lack of motivation. There are times he felt elated and times when I felt "down in the dumps." The Veteran reported problems with attention and focus. He reported two bad arguments with his fiancé. He threw an object against the wall. He denied ever striking her or the children in anger. On examination, symptoms included depressed mood, anxiety, and chronic sleep impairment. He was clean and casually-groomed, appropriately dressed in casual attire. He was oriented x 4. He was friendly, cooperative, appeared open and honest, and made good eye contact. His speech was spontaneous, clear and coherent. He did not display any unusual behaviors or mannerisms. Affect was guarded. He described his mood as "anxious." The examiner diagnosed PTSD, unspecified depressive disorder, and ADHD. It was not possible to distinguish symptomatology without speculation. The examiner assessed a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication (Record 01/10/2019). A September 24, 2019, physician note reveals the Veteran was oriented to person, place, and time. Recent and remote memory were intact. Judgement and insight were intact. Mood and affect were normal (Record 02/04/2021 at 19). A May 18, 2020, VA mental health note reveals report of sad mood 1-2 times per month and lasts about a week. He reported anxiety that is situational. His mood on the day of the examination was good. He noted poor concentration and low energy. He reported working 90 hours per week. He reported sleeping 6-7 hours per night. He denied current suicidal ideation, plan, desire, or intention to harm himself. He denied violent thinking, plan, desire, or intention to harm others. On examination, he was alert and oriented on the phone. Speech had regular rate, and normal rhythm, tone, and volume. Associations were good. Mood was described as good. Affect was pleasant and appropriate on phone. Thought processes were linear, logical, and goal directed. There was no evidence of hallucinations, delusions, illusions, or ideas of reference. The Veteran denied current suicidal ideation or thoughts of violence. Insight and judgement with regard to current emotional state was considered fair. Attention was grossly intact. Cognition was grossly intact (Record 02/04/2021 at 154). A June 20, 2020, VA mental health note reveals the Veteran denied a sad or depressed mood. He had anxious mood due to undergoing a local move. Mood was good. He noted terrible concentration and middle of the road energy. He reported sleeping four hours per night, which he attributed to having a 1-month-old child. He denied current suicidal ideation, plan, desire or intention to harm himself. The Veteran denied violent thinking, plan, desire or intention to harm others. On examination, he was alert on the phone. Speech had regular rate, and normal rhythm, tone, and volume. Associations were good. Mood was described as good. Affect was polite and cooperative on phone. Thought processes were linear, logical, and goal directed. There was no evidence of hallucinations, delusions, illusions, or ideas of reference. The Veteran denied current suicidal ideation or thoughts of violence. Insight and judgement with regard to current emotional state was considered fair. Attention was grossly intact. Cognition was grossly intact (Record 02/04/2021 at 142). The Veteran's attorney has stated in written argument that the Veteran experiences psychiatric symptomatology such as recurrent and distressing memories, psychological distress, distorted cognition, negative emotional state, diminished interest or participation in significant activities, feelings of detachment or estrangement, sleep problems, concentration problems, and hypervigilance. He asserts that criteria for a rating of 70 percent are met (Record 08/24/2020). After a review of all of the evidence, the Board finds that the criteria for a disability rating higher than 50 percent are not met. Regarding a deficiency in mood, the Veteran reported situational anxiety. However, the frequency and duration of this symptomatology appears to be limited, as does the severity. The description of anxiety as situational implies that it is not always present. He has also reported occasional sadness, which occurs once or twice a month and lasts about a week. The severity of these episodes appears to be mild. The Veteran has been noted on many occasions to have no mood disturbance at the time. However, the frequency and duration are considerable. The Veteran has reported occasional outbursts of anger. He reported being in one fistfight, but did not state when this occurred. In March 2017, he reported that these symptoms had improved in the previous two years, which encompasses the period on appeal. On one occasion, the Veteran reported suicidal ideation, however, this has not generally been reported. In January 2019 he reported no past or present suicidal ideation. If present, it appears to be of limited frequency. Nevertheless, as anger, depression, and anxiety are his most prevalent symptoms, the Board finds that a mood deficiency is substantiated. The Board finds that the evidence does not substantiate a deficiency in family relations. The Veteran has reported generally supportive family relations, including with his fiancé (now spouse), mother, children, and siblings. While he has reported angry outbursts, slamming doors, etc., the frequency and duration of these episodes appears to be limited. The relationships are otherwise described as good and supportive. Therefore, the Board finds that the evidence does not substantiate a deficiency in family relationships. A deficiency in judgment is also not substantiated. The March 2017 and January 2019 VA examinations found there was no impairment in judgment. The Board finds that a deficiency in thinking is not substantiated. The Veteran has reported memory problems, but at other times has denied memory loss. Findings on examination show good recent and remote memory. The Veteran has reported difficulty concentrating. However, on examination, thought processes have been described as logical, coherent, and normal, and as linear, logical, and goal directed. On balance, the Board finds that, despite occasional issues with memory and concentration, the Veteran's thinking is generally good. Therefore, the Board finds that a deficiency in thinking is not substantiated. While the Veteran has reported an initial post-service issue with frequent job changes and current difficulties with interpersonal relationships at work, the evidence does not substantiate a true work deficiency. Indeed, the Veteran's descriptions of his work performance are generally satisfactory. The March 2017 VA examiner specifically found that the Veteran did not have difficulty in establishing and maintaining effective work relationships. The examiner described decreases in work efficiency as "occasional." The January 2019 VA examiner found that the Veteran's symptoms were not severe enough to interfere with occupational functioning. Therefore, the Board finds that, despite occasional interpersonal problems involving work, there is no deficiency in work. The Veteran has reported having difficulty with school, and this may be due to his mental symptomatology. Even acknowledging a deficiency in school functioning, the evidence does not demonstrate deficiencies in most areas of his life, as required for a rating of 70 percent. The Veteran's functional impairment appears to be largely focused on mood and to be of moderate severity. This is supported by the opinions of VA examiners. Indeed, the most recent examiner concluded that the criteria for a 0 percent rating were most appropriate, which implies that there is no occupational or social impairment. The evidence also does not substantiate either total occupational impairment or total social impairmentthe two criteria for a rating of 100 percent. Therefore, as neither criterion is met, the criteria for a 70 percent rating are not more nearly approximated than are the criteria for a 50 percent rating. In sum, the Board finds that the Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity. In light of these findings of fact, the Board concludes that a disability rating higher than 50 percent for PTSD is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to a disability rating higher than 20 percent for limitation of motion associated with the service-connected right shoulder disability. Entitlement to a disability rating higher than 20 percent for recurrent dislocation associated with the service-connected right shoulder disability. The Veteran's attorney has submitted written argument in August 2020. The attorney argues that the examinations of the right shoulder disability are inadequate. With respect to limitation of motion, the attorney argues that, if a 40 percent rating cannot be granted, the Board should remand the appeal for a new examination. Regarding limitation of motion, there is no examination which is compliant with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Here, the January 2019 VA examiner did not estimate range of motion after repeated use over a period of time or during flares. The rationale for flares was that the Veteran did not report having flares. This is reasonable and consistent with the Veteran's reports. The rationale for repeated use over a period of time was that loss of motion is variable depending on length of use and severity of activity. This rationale does not explain whether the Veteran's lay descriptions were considered. The Veteran is competent to describe the effect of repeated use over a period of time, and the examiner must consider this evidence in making an estimate of additional limitation of motion. For this reason, the Board accepts that the examination is inadequate. As the examination requested on remand is expected to provide evidence pertinent to the issue of entitlement to a disability rating in excess of 20 percent for recurrent dislocation associated with the service-connected right shoulder disability, that issue is inextricably intertwined with the remanded range of motion issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, these matters are REMANDED for the following action: 1. As the January 2019 VA examiner has stated that he cannot provide the necessary estimate of additional limitation of motion with repeated use over a period of time, schedule a VA examination by a different examiner. The examiner is asked to report the current manifestations and severity of the service-connected right shoulder disability. The examiner is asked to please provide estimates of additional limitation of motion with repeated use over a period of time, and with flares, if the Veteran reports flares. Such estimates may be based partially, or entirely, upon the Veteran's description of range of motion under these conditions. If the examiner cannot provide such estimates, or any opinion, without resorting to speculation, the examiner is asked to please provide complete explanations stating why this is so. Such explanation should address whether any inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the remanded claims. If either benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. MARGARET M. LUNGER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.