Citation Nr: A25035109 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240311-426365 DATE: April 16, 2025 ORDER For the period beginning December 1, 2024, an increased disability evaluation of 50 percent, but not more, for the right shoulder disability is granted under Diagnostic Code (DC) 5200. A compensable initial disability evaluation for the right shoulder scar under DC 7802 is denied. An initial disability evaluation in excess of 10 percent for the right shoulder scar under DC 7804 is denied. The claim for service connection for asthma is dismissed. REMANDED For the period from June 10, 2021, to October 14, 2024, entitlement to a disability evaluation in excess of 30 percent for the right shoulder disability is remanded. Entitlement to a disability evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's functional equivalent of ankylosis of scapulohumeral articulation is a manifestation of his service-connected right shoulder joint replacement. 2. For the period beginning December 1, 2024, the Veteran's right shoulder disability manifested as the functional equivalent of unfavorable ankylosis with abduction limited to less than 25 degrees. 3. The Veteran's right shoulder scar measures approximately 1.3 square centimeters. 4. The Veteran has 1 right shoulder scar that is unstable or painful. 5. There is no case or controversy within the Board of Veterans' Appeals (Board) jurisdiction regarding service connection for asthma. CONCLUSIONS OF LAW 1. For the period beginning December 1, 2024, the Veteran's right shoulder disability manifested as the functional equivalent to unfavorable ankylosis of scapulohumeral articulation, with abduction limited to 0 degrees from the right side. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 5200. 2. The criteria for a compensable disability rating for the right shoulder scar under DC 7802 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. 3. The criteria for a disability rating in excess of 10 percent for the right shoulder scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 4. The criteria for dismissal of the appeal regarding service connection for asthma have been satisfied. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1991 to July 1991 and from February 2003 to January 2005, with additional periods of reserve and National Guard service. The rating decision on appeal was issued in March 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the March 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. The Veteran submitted evidence after the AOJ decision on appeal, which the Board did not consider. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider as to the claims for service connection for asthma; an increased disability evaluation for the right shoulder disability for the period beginning December 1, 2024; or an increased disability evaluation for the right shoulder scars, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision Because the Board is remanding the claims of entitlement to an increased disability rating for PTSD; an increased disability rating for the right shoulder disability for the period from June 10, 2021, to October 14, 2024; and a TDIU, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Board finds that the Veteran has been provided with an adequate medical examination in conjunction with his claims for increased disability evaluations for the right shoulder disability and right shoulder scars. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In February 2024, the Veteran was afforded in-person VA shoulder and scar examinations. The VA examiner conducted a thorough examination, reviewed the evidence of record, and considered the Veteran's medical history and statements. The VA examiner rendered opinions with reasoned medical explanations and analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The VA examiner performed all range of motion testing required to comply with the holding of Correia v. McDonald, 28 Vet. App. 158 (2016). Although the Veteran did not report flare-ups of the right shoulder, the VA examiner also elicited sufficient information regarding symptomatology to comply with the holding of Sharp v. Shulkin, 29 Vet. App. 26 (2017) and concluded that there would be no additional loss of range of motion during a flare-up. The February 2024 VA examiner adequately captured the nature and severity of the Veteran's service-connected right shoulder disability and right shoulder scar symptoms so that the Board can make a well-informed determination. With regard to the claims for increased disability evaluations for the right shoulder disability for the period beginning December 1, 2024, and for right shoulder scars, neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist that occurred prior to the rating decision on appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Disability Evaluations Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2019). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "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). Given the nature of the present claims for higher initial evaluations for the Veteran's right shoulder scar, the Board has considered all evidence of severity from the effective dates for the awards of service connection for those claims. Fenderson v. West, 12 Vet. App. 119 (1999). With regard to the PTSD and right shoulder disability claims, when entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed. Id. at 509; see also 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2) (2019). VA received the Veteran's claim on June 10, 2022. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. For the period beginning December 1, 2024, an increased disability evaluation of 50 percent, but not more, for the right shoulder disability is granted under DC 5200. The Veteran and his representative assert that his currently assigned 30 percent disability evaluation under DC 5051 for right shoulder joint replacement is not reflective of his constant pain, decreased ROM, and other severe symptoms in the right shoulder. See February 2025 brief. An increased disability evaluation for the right shoulder for the period from June 10, 2021, to October 14, 2024 is remanded below. The Veteran is assigned a 100 percent disability evaluation for the right shoulder disability for the period from October 15, 2024 to November 30, 2024. For the period beginning December 1, 2024, the Veteran is currently assigned a disability evaluation of 30 percent for the right shoulder disability under Diagnostic Code 5051. The Board notes that, according to the evidence of record, the Veteran is right-handed. Therefore, his right shoulder is considered his major extremity. February 2024 VA shoulder examination. Under DC 5051, with respect to the major extremity, a 100 percent rating is warranted for one year following implantation of the prosthesis. Following this one-year period, a minimum of a 30 percent rating is warranted for prosthetic replacement of the shoulder joint with intermediate degrees of residual weakness, pain, or limitation of motion. A 60 percent rating is warranted for prosthetic replacement of the shoulder joint with chronic residuals consisting of severe, painful motion or weakness. The DC also instructs VA to rate intermediate degrees of residual weakness, pain, or limitation of motion by analogy to DCs 5200 and 5203. Note 2 to DC 5051 instructs VA to evaluate a revision procedure in the same manner as the original procedure under DC 5051 if all the original components are replaced. DC 5200 provides rating criteria for ankylosis of scapulohumeral articulation, where the scapula and humerus move as one piece. See id., DC 5200. Under the relevant criteria, a 40 percent disability rating is warranted for intermediate ankylosis, between favorable and unfavorable (25 degrees abduction), of the dominant (major) side. Id. A maximum schedular 50 percent disability rating is warranted for unfavorable ankylosis of the dominant (major) side, where abduction is limited to 25 degrees from the side. Id. Generally, ankylosis requires fixation of the joint. However, as discussed above, the rating criteria based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure"). The Court of Appeals for Veterans Claims held that the requirement of establishing ankylosis for purposes of assigning a higher rating can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). This is because "ankylosis is, in essence, a complete limitation of motion." Thus, an evaluation based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis. Id. at 11. The Veteran underwent revision of his prosthetic replacement of the right shoulder joint on July 5, 2022. July 2022 private treatment records. All original components were not replaced. Id. Therefore, a rating under DC 5051 in the same manner as prior to the revision surgery is not appropriate, pursuant to Note 2 to DC 5051. The Board finds that the proper rating, which maximizes benefit to the Veteran, is a 50 percent disability evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5200, for ankylosis of scapulohumeral articulation. The Veteran was afforded a VA shoulder examination in February 2024, close in time to the relevant appeal period. This examination diagnosed residuals of right shoulder dislocations since 2002; a shoulder joint replacement on October 9, 2009; and reversal of right total shoulder arthroplasty on July 5, 2022. The examiner noted the Veteran reported worsening of his right shoulder disability and inability to reach, perform overhead activity, or pull. The Veteran complained of constant sharp, throbbing, aching shoulder pain of a five out of ten severity which increases with any movement and radiates to the neck. The Veteran stated this pain frequently wakes him at night. The February 2024 VA shoulder examiner documented atrophy of the right shoulder muscle and noted the Veteran cannot abduct his arm, reach overhead, push, pull, or even carry a cup of coffee. The Veteran demonstrated abnormal ROM in the right shoulder. While the examination did not document formal ankylosis, flexion was limited to 70 degrees, and abduction, internal rotation, and external rotation were all limited to 0 degrees. The examiner estimated that after repetitive use flexion would be further limited to 60 degrees, and all other ROMs would remain at 0 degrees. The Veteran complained of a "near 'frozen shoulder.'" Id. The VA examiner opined that this limitation of ROM was due to the Veteran's claimed condition of a service-connected right shoulder disability. While the Veteran had suspected right shoulder instability with frequent episodes and guarding of all arm movements which affected ROM, there were no impairments of the humerus. The Veteran used no assistive devices. Because the Veteran's right shoulder is virtually frozen, and his abduction is 0 degrees from his right side, the Board finds that the maximum schedular rating of 50 percent for the major extremity under DC 5200 is warranted. The Board finds that the listed condition of shoulder ankylosis is closely related to the extreme limitation of right shoulder ROM experienced by the Veteran and affects the same functions, anatomical location, and symptoms. See Webb v. McDonough, 71 F.4th 1377 (Fed. Cir. 2023); Lendenmann v. Principi, 3 Vet. App. 345, 350 (1992). Additionally, when rating by analogy, law recognizes that disabilities rated under analogous code sections will not show all the objective criteria of the analogous rating, such as here where the Veteran does not have a formal diagnosis of ankylosis. Stankevich v. Nicholson, 19 Vet. App. 470 (2006). The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. As discussed above, the Veteran cannot be accorded a higher disability evaluation under DC 5051, because the original components of his right shoulder joint replacement were not all replaced in his July 2022 revision surgery. July 2022 private treatment records. DC 5201 for limitation of motion of the arm provides a maximum schedular rating of 40 percent, lower than the rating currently being assigned under DC 5200. DC 5203 addresses impairment of the clavicle or scapula. The maximum available rating for DC 5203 is 20 percent. See 38 C.F.R. § 4.71a, DC 5203. Therefore, this code does not assist the Veteran in obtaining a higher rating. There is no impairment of the humerus, so DC 5202 is not for application. Therefore, no other diagnostic code provides a higher rating for the Veteran's service-connected disabilities of the right shoulder. As the rating currently being assigned is the maximum schedular disability rating available under DC 5200, a higher rating is not available. For the period beginning December 1, 2024, an increased disability evaluation of 50 percent, but not more, for the right shoulder disability is granted under DC 5200. The Veteran's 30 percent rating under DC 5051 is discontinued effective this same date, to prevent pyramiding for compensation for the same symptoms, namely pain and severe limitation of motion. The appeal period encompassing the Veteran's revision surgery for which he is not already in receipt of a 100 percent disability rating is remanded below. 2. A compensable initial disability evaluation for the right shoulder scar under DC 7802 is denied. The Veteran asserts that he is entitled to an increased disability evaluation for the service-connected disabilities related to the right shoulder. See February 2025 brief. The Veteran's right shoulder scar is currently assigned a noncompensable disability rating under Diagnostic Code 7802. DC 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. The Board finds that the evidence of record persuasively weighs against the assignment of a compensable evaluation under DC 7802 because the Veteran's right shoulder scar is not manifest by an area or areas of 144 square inches (929 sq. cm.) or greater. The Veteran's right shoulder scar is only approximately 1.3 centimeters square, and it is associated with underlying soft tissue damage. February 2024 VA scars examination. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's right shoulder scar is not of the head, face, or neck, and is not deep and non-linear. While the Veteran's right shoulder scar is associated with underlying soft tissue damage, it is not large enough to warrant a compensable rating under DC 7801. February 2024 VA scars examination. Moreover, while the Veteran's right shoulder scar is painful, this pain is already compensated under DC 7804. Therefore, DC 7800 is inapplicable, and additional compensation under either DC 7801 or DC 7804 is not available. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under DC 7805. The Board acknowledges that the Veteran and his representative believe that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain, and these reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran does not assert, and medical evidence does not show, that the Veteran's right shoulder scar is manifest by an area or areas of 6 square inches (39 sq. cm.) or 144 square inches (929 sq. cm.) or greater. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a compensable rating for the right shoulder scar. As the evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 3. An initial disability evaluation in excess of 10 percent for the right shoulder scar under DC 7804 is denied. The Veteran asserts that he is entitled to an increased disability evaluation for the service-connected disabilities related to the right shoulder. See February 2025 brief. The Veteran's right shoulder scar is currently assigned a 10 percent disability evaluation under Diagnostic Code 7804 for unstable or painful scar(s). Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The Board finds that the evidence of record persuasively weighs against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran's scar is not manifest by three or four scars that are unstable or painful. The Veteran's right shoulder scar is manifest by one painful scar. February 2024 VA scars examination. As discussed above, the Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's right shoulder scar is not of the head, face, or neck, and is not deep and non-linear. While the Veteran's right shoulder scar is associated with underlying soft tissue damage, it is not large enough to warrant a compensable rating under DC 7801. February 2024 VA scars examination. Moreover, the Veteran's scar does not involve an area of 144 square inches or greater as required for a compensable rating under DC 7802. Therefore, DC 7800 is inapplicable, and additional compensation under either DC 7801 or DC 7802 is not available. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under DC 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain, and these reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran does not assert, and medical records do not show, that the Veteran's right shoulder scar is manifest by three or four scars that are unstable or painful. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a disability rating in excess of 10 percent for the right shoulder scar. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 4. The claim for service connection for asthma is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. The March 2024 AOJ rating decision on appeal deferred service connection for asthma. VA received the Veteran's Notice of Disagreement on March 11, 2024, at which time the claim for service connection for asthma had not been adjudicated by the AOJ. Because the AOJ denied service connection for asthma on August 6, 2024, the Veteran may still appeal this decision to the Board by filing a properly completed VA Form 10182: Notice of Disagreement. He may also file a Supplemental Claim or a Request for a Higher-Level Review. These options, if filed within one year of the August 6, 2024 rating decision, will allow continuous pursuit of the claim and preserve his effective date if the benefit is granted in the future. There is therefore no prejudice to the Veteran in dismissing this premature claim. REASONS FOR REMAND 1. For the period from June 10, 2021, to October 14, 2024, a disability evaluation in excess of 30 percent for the right shoulder disability is remanded. The Veteran and his representative assert that his currently assigned 30 percent disability evaluation is not reflective of his constant pain, decreased ROM, and other severe symptoms in the right shoulder. See February 2025 brief. For the period from June 10, 2021, to October 14, 2024, the Veteran is currently assigned a disability evaluation of 30 percent for the right shoulder disability under Diagnostic Code 5051. The appeal is remanded to correct duty to assist errors that occurred prior to the March 2024 AOJ rating decision. 38 C.F.R. § 20.802(a). June 2022 private treatment records show the Veteran's prior shoulder replacement had failed and that he was experiencing severe pain and dysfunction of the right shoulder. This pain and dysfunction was noted to interfere with the Veteran's daily activities and sleep, and the private treatment provider stated physical therapy and activity modification were not effective. There are no treatment records, whether VA or private, associated with the file documenting the referenced activity modification and physical therapy. Moreover, the Veteran underwent revision surgery on his right shoulder replacement on July 5, 2022. While July 19, 2022, post-operative imaging is documented in the private treatment records, there are no accompanying notes of post-operative visits or care. Therefore, prior to the rating decision on appeal, the AOJ failed in its duty to assist the Veteran with developing his claim for an increased disability evaluation for the right shoulder disability, and the claim must be remanded. 2. Entitlement to a disability evaluation in excess of 70 percent for PTSD is remanded. The Veteran and his representative assert that he is totally occupationally and socially impaired by his PTSD and therefore entitled to a 100 percent disability evaluation. See February 2025 brief. They further assert that he has been sent home from work for blowing up at people because of PTSD and that his outbursts are such that no workplace will tolerate them. See id., September 2022 VA treatment records. The appeal is remanded to correct duty to assist errors that occurred prior to the March 2024 AOJ rating decision. 38 C.F.R. § 20.802(a). In September 2022, the Veteran indicated to his treating VA mental health provider that he had recently seen a non-VA psychiatrist for four months and received prescriptions for psychiatric medications from this provider. Treatment records from this provider are not associated with the Veteran's claim file, nor is there any indication that the AOJ attempted to assist the Veteran in obtaining these records. Therefore, prior to the rating decision on appeal, the AOJ failed in its duty to assist the Veteran with developing his claim for an increased disability evaluation for PTSD, and the claim must be remanded. 3. Entitlement to a TDIU is remanded. The Veteran asserts that, among other service-connected disabilities, his PTSD prevents him from obtaining and maintaining a job for which he is qualified because it causes total occupational impairment and angry, violent outbursts. See February 2025 brief. The Veteran further asserts that he has difficulty maintaining employment due to ongoing conflicts with coworkers. See February 2024 VA PTSD examination. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has indicated as part of his increased rating claim for his service-connected PTSD and service-connected right shoulder disability that he asserts these disabilities prevent him from working. Therefore, the Veteran's implied claim for TDIU is inextricably intertwined with the remand of an increased disability evaluation for the service-connected PTSD, and the Board cannot fairly proceed in adjudicating it until that claim has been resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). No development will be requested for this issue. Nevertheless, the Veteran is invited to provide VA with updated employment and income information to assist in substantiating his claim. The Board notes that while VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) is not legally required to receive a TDIU, the Veteran may choose to complete and submit this form in order to receive assistance from VA in obtaining evidence relevant to his claim. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any non-VA right shoulder providers, including the facility where the Veteran underwent right shoulder surgery in July 2022. Make two requests for the authorized records from each facility, unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran to complete a VA Form 21-4142 for any non-VA mental health providers, including the psychiatrist seen for four months in or around 2022. Make two requests for the authorized records from each facility, unless it is clear after the first request that a second request would be futile. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carmichael, A. 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.