Citation Nr: 1736684	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  99-09 169	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for hyperaldosteronism.

2.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) and major depression.

3.  Entitlement to an initial rating in excess of 20 percent for right (major) shoulder tendonitis.

4.  Entitlement to an initial rating in excess of 20 percent for left (minor) shoulder tendonitis.

5.  Entitlement to an initial rating in excess of 20 percent for degenerative joint disease of the cervical spine ("cervical spine DJD").


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

N. Nelson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1976 to October 1996, including service in Southwest Asia.

These matters come before the Board of Veterans' Appeals (Board) on appeal from May 1997 and September 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO).  The May 1997 rating decision granted service connection for tendonitis of the bilateral shoulders, assigning 10 percent ratings effective November 1, 1996, and denied service connection for hyperaldosteronism.  The September 2007 rating decision granted service connection for PTSD, assigning a rating of 30 percent, and granted service connection for cervical spine DJD, assigning a 10 percent rating, both effective November 1, 1996.

The issues of service connection for hyperaldosteronism and increased initial ratings for the bilateral shoulder tendonitis were remanded by the Board for further development in December 2000, July 2004, and February 2008.  

In April 2009, the Board denied entitlement to service connection for hyperaldosteronism, denied initial ratings in excess of 10 percent for the bilateral shoulder tendonitis, denied an initial rating in excess of 30 percent for PTSD, and remanded the issue of an initial rating in excess of 10 percent for cervical spine DJD.  The remand directives included affording the Veteran a VA examination of the cervical spine to assess any radiculopathy or nerve involvement associated with the cervical spine DJD.

The Veteran appealed the issues to the United States Court of Appeals for Veterans Claims (Court), and in February 2010, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the issues.

In March 2011, the Board noted that the Veteran had been granted service connection for major depression and recharacterized the issue as entitlement to an initial rating in excess of 30 percent for PTSD and major depression.  The Board then remanded the hyperaldosteronism, PTSD and major depression, and bilateral shoulder tendonitis issues for further development, including scheduling the Veteran for VA examinations to determine the nature and severity of any hyperaldosteronism, PTSD, and bilateral shoulder tendonitis.

In August 2014, the RO assigned a 100 percent rating for the cervical spine DJD from November 7, 2013, to January 31, 2014, for surgery necessitating convalescence; and a 10 percent rating from February 1, 2014.  In October 2014, the RO increased the initial rating for the cervical spine DJD to 20 percent, and assigned a 20 percent rating from February 1, 2014.  The 100 percent rating for the period between November 7, 2013, and January 31, 2014, is the maximum rating available; as such, this period of time is not on appeal.  The decisions otherwise constitute partial grants of the benefits sought on appeal.  The issues therefore remain on appeal and are for consideration by the Board.  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).

In April 2015, the Board remanded all five issues for further development, including obtaining a medical opinion on the nature and etiology of any diagnosed hyperaldosteronism, and scheduling the Veteran for VA examinations to determine the severity of his PTSD/major depression, bilateral shoulder tendonitis, and cervical spine DJD.

In November 2016, the RO increased the initial rating for the left shoulder tendonitis to 20 percent.  A temporary 100 percent rating was assigned from September 25, 2015 to December 31, 2015, and a 20 percent rating was assigned from January 1, 2016.  In addition, the RO increased the initial rating for the right shoulder tendonitis to 20 percent.  The 100 percent rating for the left shoulder tendonitis for the period between September 25, 2015, and December 31, 2015, is the maximum rating available; as such, this period of time is not on appeal.  The decision otherwise constitutes partial grants of the benefits sought on appeal.  The issues therefore remain on appeal and are for consideration by the Board.  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).

With regard to the remand directives in the April 2009, March 2011, and April 2015 Board remands, the Veteran was afforded VA examinations in December 2009, August 2013, May 2014, January 2016, and December 2016 on the nature and etiology of any diagnosed hyperaldosteronism, and on the severity of the PTSD and depression, bilateral shoulder tendonitis, and cervical spine DJD, and the examination reports are associated with the claims file.  The Board is therefore satisfied that there has been substantial compliance with the remands' directives and will proceed with review.  Stegall v. West, 11 Vet. App. 268 (1998).

Finally, the Board notes that the Veteran also appealed issues of service connection for sleep apnea and functional myoclonus.  These issues were granted in November 2016 and February 2017 rating decisions.  As these appeals were granted in full, the issues are no longer in appellate status or before the Board.


FINDINGS OF FACT

1.  The Veteran does not have a current diagnosis of hyperaldosteronism.

2.  For the entire period of appeal, the Veteran's PTSD and major depression is productive of a disability picture that more nearly approximates that of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms of depressed mood, sleep impairment, anxiety, and irritability.  There is no evidence of 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; impaired judgment; or impaired abstract thinking.

3.  The Veteran's dominant hand is his right hand.  

4.  For the entire period of appeal, the right shoulder tendonitis is manifested by pain, flexion to at least 100 degrees, and abduction to at least 90 degrees.

5.  For the entire period of appeal, the left shoulder tendonitis is manifested by pain, flexion to at least 100 degrees, and abduction to at least 90 degrees.

6.  For the entire period of appeal, the cervical disc disability is manifested by forward flexion to at least 20 degrees, with no evidence of ankylosis or severe limitation of motion.


CONCLUSIONS OF LAW

1.  The criteria for service connection for hyperaldosteronism have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).

2.  The criteria for an initial rating in excess of 30 percent for PTSD and major depression have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2016).

3.  The criteria for an initial rating in excess of 20 percent for the right shoulder tendonitis have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5024, 5201 (2016).

4.  For the period of appeal prior to September 25, 2015, and from January 1, 2016, the criteria for a rating in excess of 20 percent for the left shoulder tendonitis have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5024, 5201 (2016).

5.  For the period of appeal prior to November 7, 2013, and from February 1, 2014, the criteria for a rating in excess of 20 percent for the cervical spine DJD have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5290 (2003), 5242 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 
16 Vet. App. 183 (2002).  VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).   

Here, the RO provided notice letters to the Veteran in October 2001, February 2004, January 2006, August 2006, March 2008, and May 2008, which notified the Veteran of what information and evidence must be submitted to substantiate the claims for service connection and increased ratings, what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA.  The Veteran was told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence to the RO in support of his claims.  The letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date.  The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).

The Veteran's claims for higher initial ratings are downstream issues, which were initiated by a notice of disagreement.  The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..."  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Thus, there is no duty to provide additional notice with regard to the increased rating claims.  
                                                                                                                                                                                                                                                                                                                             
The record nevertheless establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims.  The Board notes that there has been no allegation from the Veteran or his representative that he has been prejudiced by any of notice defects.  See Shinseki v. Sanders, 556 U.S. 396 (2009).  Thus, there is no prejudice to the Veteran in the Board's considering the issues on their merits.  The Board finds that the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. 

The Board further finds that all relevant evidence has been obtained, and the duty to assist requirements have been satisfied.  All available service treatment records (STRs) were obtained, and VA medical records and private medical records are associated with the claims file.  The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the claims. 

The Veteran underwent a series of VA examinations 1997, 1998, 1999, 2002, 2004, 2006, 2009, 2013, 2014, and 2016 to obtain medical evidence regarding the nature and severity of the disabilities.  The Board finds the VA examinations adequate for adjudication purposes.  The examinations were performed by medical professionals based on review of the claims file, solicitation of history and symptomatology from the Veteran, and examination of the Veteran.  The examination reports are accurate and fully descriptive.  Opinion is provided as the severity of the disabilities.  As such, the Board finds that the Veteran has been afforded adequate examination.  The Board finds that VA's duty to assist has been met.  See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson,  21 Vet. App. 303, 312 (2007). 

The Board finds that the duties to notify and assist the Veteran have been met, and no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims.

II.  Service Connection 

Law and Regulations

Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection requires competent evidence showing (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder.  See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

The Board will assess both medical and lay evidence.  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a competent source.  Second, the Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises, and may also include statements from authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  A layperson is not generally capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).



Service Connection for Hyperaldosteronism

The Veteran contends that service connection for hyperaldosteronism is warranted.  

After careful review, the Board finds that the weight of the competent and credible evidence establishes that the Veteran had an episode of hypersteronism in service that resolved, and he does not have a current diagnosis of hyperaldosteronism.  The Veteran has a current diagnosis of hypertension, for which he is already service-connected.  

STRs indicated that in a September 1976 service enlistment examination, the Veteran's blood pressure was 140/84.  He was noted to have a clinically normal heart and endocrine system.  In April 1987, the Veteran complained of chest pain.  His blood pressure was 220/160, and his initial potassium level was 4.8 and initial aldosterone level was 990.  The Veteran was hospitalized, a repeat aldosterone test was ordered, and he was assessed as having hypertension of unknown etiology and started on atenolol.  A lab test result received several days later showed an elevated level of aldosterone.  The test result indicates that for adult males, a normal level of aldosterone was between 6 and 22 ng/dl, and the Veteran's test showed 34 ng/dl.  In a February 1988 examination and report of medical history, the Veteran was noted to have had an episode of high blood pressure.  In a February 1988 dental treatment record, the Veteran had a blood pressure of 136/104; he was noted to have intermittent elevation of blood pressure during periods of stress that then returned to normal.  In an October 1996 separation examination, the Veteran's blood pressure was 128/78 and his heart and endocrine system were found to be clinically normal.  He was noted to have been previously hospitalized for hyperaldosterone.  In a Chronological Record of Medical Care retirement physical narrative, the Veteran was noted as having "kind of a hypertensive crisis" in 198[7], at which time he was hospitalized, but had not had any problems since then.  

Post-service treatment records indicate that lab tests taken in conjunction with a January 1997 VA examination showed a normal potassium level (4.0 mmol/L).  In October and December 1997, the Veteran' serum-K level was within normal limits.  

In a January 2004 VA examination, the Veteran reported that while in service in Italy, he began having midsternal chest pain.  He was seen at a hospital and found to be hypertensive.  He stayed in the hospital for five days and was treated for hyperaldosteronism without heart damage, and was discharged with a diagnosis of hypertension and was placed on medication.  Upon examination, the Veteran's blood pressure was 132/80.  A re-check of his blood pressure showed a sitting blood pressure of 164/112, lying down was 144/100, and standing was 110/82.  The examiner diagnosed hyperaldosteronism and hypertension.

In lab tests done before a colonoscopy in January 2004, the Veteran's potassium was 3.8.

In a VA examination two months later in March 2004, the Veteran was diagnosed with hypertension, borderline cardiomegaly, and hyperlipidemia.  He was also noted to a history of hyperaldosteronism, which was resolved.

In a December 2006 VA examination, the Veteran's blood pressure readings were 126/90, 124/80, and 140/90.  Serum and urine electrolyte results were within normal limits, as was the results of a serum-K test.  The VA examiner indicated that a single aldosterone value of 990 was found in the Veteran's STRs in 1987 with no further notations, and that no current diagnosis of hyperaldosteronism could be made.  In an April 2007 examination addendum, the examiner indicated that the Veteran was being treated for hypertension, but that UA, Aldolase, ACTH, ADH, cortisol and potassium levels were all within normal limits, and reiterated that no diagnosis of hyperaldosteronism could be made.  

A September 2007 aldosterone test result was within normal limits.  

April and December 2011 potassium tests at a private medical facility were normal.  

In August 2013, the Veteran had a VA examination for hyperaldosteronism.  The examiner opined that the Veteran did not have a current diagnosis of hyperaldosteronism, nor had he had any such diagnosis since October 1996, causally related to his military service.  The examiner noted that the Veteran had elevated blood pressure readings in service and a raised aldosterone level of 990 in April 1987; however, the condition seemed to have resolved with sequelae, as they were not noted in the separation examination except by past history.  They were not presented as disabling conditions.  In addition, lab tests in October 1996, February 1997, August 1998, February 2001, February 2002, and in 2011 showed serum-K levels that were normal.  With hyperaldosteronism, serum-K levels would not be normal.  Finally, lab testing completed in conjunction with the August 2013 examination indicated normal aldosterone levels and normal potassium levels, which ruled out any possibility of hyperaldosteronism.  

Private treatment records indicate that in September 2013, the Veteran's potassium level was normal.

In December 2016, a VA examiner reviewed the Veteran's lab results from January 2004, and concluded that it was less likely than not that the lab results supported a diagnosis of hyperaldosteronism.  The examiner noted that the Veteran's serum potassium level in January 2004 was 3.8 mEq/L:, and the normal range was 3.7 to 5.2 mEq/L.  Moreover, a March 2004 VA examination report reflected that the hyperaldosteronism was resolved.  

The Board finds that the weight of the competent and credible evidence establishes that the Veteran does not have a current diagnosis hyperaldosteronism, and has not had any such diagnosis since an in-service diagnosis in 1987, which resolved.  VA examiners in March 2004, December 2006, and August 2013 concluded that the Veteran did not have a current diagnosis of hyperaldosteronism, and had not had such a diagnosis since the in-service diagnosis that fully resolved before the Veteran separated from service.  Although the January 2004 examiner noted a diagnosis of hyperaldosteronism, a VA examiner clarified in December 2016 that lab tests taken that month did not support a diagnosis of hyperaldosteronism.  Moreover, the Board finds it significant that in March 2004, only two months later, the Veteran was noted to a history of hyperaldosteronism, which was resolved, and that the Veteran was not found to have hyperaldosteronism in any subsequent treatment records or examinations.

As such, without competent evidence of a diagnosed disorder, service connection for the disorder cannot be awarded.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability, there can be no valid claim."); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability).  The Board does not doubt that the Veteran is sincere in his claim for service connection for hyperaldosteronism; however, the Board cannot rely on his general assertions because he is not shown to possess the type of medical expertise that is necessary to diagnose an adrenal disorder, as such a diagnosis requires medical knowledge and clinical test interpretation that the Veteran does not have the training to perform.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Accordingly, the Board does not find the Veteran's general assertions to be probative with regard to establishing service connection for hyperaldosteronism.

Thus, on this record, the evidence is found to preponderate against the claim that the Veteran has a current diagnosis of hyperaldosteronism.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

III.  Increased Ratings

Law and Regulations

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  See Fenderson v. West, 12 Vet. App. 119 (1999). 

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.  
38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995).  It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to all these elements.  Id.  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 or evidenced by visible behavior of the claimant undertaking the motion.  Id.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Id. 

The factors involved in evaluating and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45. 

Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints.  The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations. 

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment.  The Court instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination.  Such inquiry was not to be limited to muscles or nerves.  These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. 

In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology.  The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss.  Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011).  Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment.  Id.   

The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 

The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function.  See Spurgeon v. Brown, 10 Vet. App. 194 (1997).

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence.  38 U.S.C.A. § 7104(a).  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.

A.  PTSD and Major Depression

Rating Criteria

The rating criteria for rating mental disorders, including PTSD and major depression, reads as follows:  a 100 percent rating requires total occupational and social impairment, due to such symptoms as:  gross impairment in thought processes or communication; persistent delusions of 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.  38 C.F.R. § 4.130.

A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as:  suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  Id.

A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as:  flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships.  Id.

A 30 percent rating requires 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, and mild memory loss (such as forgetting names, directions, recent events).  Id.

The Court has held that Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32). 

GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.  Id.   

Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Id. 

Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  Id.

Scores ranging from 31 to 40 reflect some impairment in reality testing or communications (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g. depressed man avoids friends, neglects family, and is unable to work).  Id.

The Secretary of VA recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  However, the amended provisions do not to apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ.  The instant appeal was initially certified to the Board in January 2009.  Therefore, the new version of the Schedule for Rating Disabilities is arguably not for application in the instant appeal.

Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).  The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating.  Id. at 117.  Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned.  Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117.

Analysis

The Veteran contends without further elaboration that a higher rating is warranted for the severity of his PTSD.

After careful review, the evidence shows that for the entire period of appeal, the Veteran's PTSD most closely approximates the criteria for a 30 percent rating under Diagnostic Code 9411.  The evidence does not more closely approximate the schedular criteria for the assignment of disability rating in excess of 30 percent for that period of appeal.  

In a January 2004 VA PTSD examination, the Veteran reported having painful, intrusive memories of his trauma, and suffered distress when exposed to stimuli that reminded him of his combat experiences.  He tried to push away painful thoughts, feelings, and memories as much as possible, and had a loss of interest in previously pleasurable activities.  The Veteran also reported having a depressed mood, decreased energy, continuous anxiety, disturbed sleep patterns, difficulty concentrating, hypervigilance, and startled easily.  He was not taking any medication or receiving any psychiatric care.  The Veteran indicated that he worked full-time as a systems program administrator for Walmart, where he had worked for the last six years.  He had been married for 20 years, and although he had become increasingly socially isolated, he had recently begun volunteering for the Civil Air Patrol.  The examiner noted that the Veteran was initially composed but became tearful during the course of the examination.  His affect was constricted, his thoughts were clear and goal-oriented, and there was no evidence of delusions or hallucinations.  He did not have suicidal ideation, though he stated that sometimes he just thought of what it would be like if he was not here anymore.  The examiner diagnosed PTSD, and opined that the PTSD was causing depressive symptoms.  His GAF score was 68.  

In a December 2006 VA PTSD examination, the Veteran reported that his family told him that he was different when he returned from service after the Persian Gulf War, and that he felt that he left something behind.  He was haunted by guilt that he left his unit early due to family emergency, and had depression, decreased energy, decreased interest, decreased self-esteem, sleep disturbance, difficulty with concentration and focus, difficulty with anger and irritability, hypervigilance, and easy startle response.  He denied suicidal ideation, had just started on citalopram (an antidepressant), and had not been having any ongoing psychiatric care.  The Veteran was still working fulltime as a systems programmer for Walmart, and reported doing fairly well at work, but having some difficulty with energy, concentration, and focus.  He had been married for 23 years, and was trying to be more socially interactive outside the home with his wife but often felt uncomfortable in social interactions with others.  The examiner assessed a GAF score of 65, and noted that the in addition to the PTSD, the Veteran had symptoms of major depression that was most likely associated with his chronic pain symptoms.  

VA treatment records indicate that in July 2008, the Veteran reported that he was taking Celexa 40 for depression and still felt depressed "every now and then."  His Celexa was increased to 60 mg per day, and he was referred to a mental hygiene clinic for a psychiatric evaluation for depression.  In the evaluation, the Veteran indicated that he liked the service better than any job he had since separation and had tried to get back into it, but could not due to his disability.  He worked with the Civil Air Patrol and trained cadets, but still felt depressed.  The Veteran stated that citalopram had helped mobilize him somewhat, and he just started mirtazapine.  The Veteran stated that he lived with his wife, with whom he had a good relationship, and his children were doing "pretty well."  The treating psychiatrist diagnosed depression NOS and PTSD.  

In an August 2013 VA examination, the Veteran reported that he had a good relationship with his wife and family, but had no close friends; there was no significant change in this area since the last examination.  He indicated that he worked as a Sr. DBA for Farmers and Ranchers Insurance.  He had been fired from a past position due to daytime sleepiness, but was doing well in his current position (which he attributed to taking Provigil).  In his spare time, he coordinated Wreaths Across America for Fayetteville, Arkansas, and was the deputy commander for Civil Air Patrol, Cadet Squadron, which involved training junior high, high school, and college students for the Air Force Auxiliary.  The Veteran was taking  Prozac and Cymbalta for pain and depression.  He continued to have symptoms of rumination, pontification, obsessive thinking, and worry about a number of different situations.  The examiner indicated that the Veteran's symptoms included depressed mood, anxiety, and chronic sleep impairment; he did not meet the full criteria for PTSD.  The Veteran was assessed has having depressive disorder NOS, secondary to his medical conditions, and his GAF score was 70.  He was capable of managing his own financial affairs.  The examiner opined that the Veteran's symptoms caused occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.

In a January 2016 VA examination, the Veteran reported that he had been married to his wife for 32 years and the relationship was "excellent."  He had two adult children, with whom he also had "excellent" relationships.  He was working at the Federal Aviation Administration as a contractor, and had been working there since August 2015.  The Veteran also volunteered for the Air Force Auxiliary and was the event manager for Wreaths Across America, which he found to be therapeutic.  He stated that he had been treated with Prozac for depression for approximately 20 years, and was not seeing a therapist.  He denied having any legal troubles or substance abuse history.  His mental health symptoms included depressed mood, chronic sleep impairment, disturbances of motivation and mood, irritability, and chronic fatigue.  The examining psychologist indicated that the Veteran did not meet the full criteria for PTSD, but had persistent depressive disorder, which caused 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 medication.  He was capable of managing his financial affairs.  The examiner noted that the Veteran's depression had been successfully treated with Prozac for 20 years, and the Veteran reported that his symptoms were well controlled on Prozac.  

In sum, for the entire period of appeal, the weight of the competent and credible evidence preponderates against the assignment of a rating in excess of 30 percent for the Veteran's PTSD.  The probative evidence establishes that the PTSD does not more nearly approximate occupational and social impairment with reduced reliability and productivity, which would warrant a 50 percent rating under Diagnostic Code 9411.

The Board finds that the weight of the competent and credible evidence shows that the Veteran's PTSD manifests by symptoms including depressed mood, sleep impairment, anxiety, and irritability.  Mental health professionals assigned GAF scores between 65 and 70, which is indicative of mild symptoms (e.g., depressed mood and mild insomnia).  See DSM-IV.  The August 2013 and January 2016 VA examiners indicated that the Veteran's PTSD symptoms caused occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  Moreover, the Veteran has been married for nearly 35 years, had two adult children, and engages in volunteer activities with the Civil Air Patrol and Wreaths Across America.  He has a college degree and has been employed fulltime throughout the period of appeal.  Such levels of impairment warrant no more than a 30 percent rating.  

Thus, the Board also finds that for the entire period of appeal, the evidence weighs against the assignment of a 50 percent rating for the Veteran's PTSD and major depression.  The evidence establishes that the PTSD symptoms do not more nearly approximate occupational and social impairment with reduced reliability and productivity, which would warrant a 50 percent rating under Diagnostic Code 9411.  The Veteran has never been found to have a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; or impaired abstract thinking.  38 C.F.R. § 4.130. 

Although the Veteran has symptoms of disturbances of mood and has reported having difficulty with social relationships, the Board does not find this symptom to be of such frequency, severity, and duration that it results in occupational and social impairment with reduced reliability and productivity to warrant a higher 50 percent evaluation at any point during the period of appeal.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating).  As discussed above, the Veteran had been married for nearly 35 years, has good relationships with his spouse and children, is employed full time, and does significant volunteer work in the community.  

Similarly, although the Veteran reported in the January 2004 VA examination that he wondered what it would be like if he was not here anymore, the Board does not find this symptom to be of such frequency, severity, and duration that it results in occupational and social impairment with reduced reliability and productivity to warrant a higher 50 percent evaluation at any point during the period of appeal.  Significantly, the Veteran denied having suicidal ideation in the December 2006 VA examination, and was not noted to have suicidal thoughts in any subsequent treatment record or VA examination.  Furthermore, the August 2013 and January 2016 VA examiners opined that the Veteran's PTSD symptoms caused occupational and social impairment due to mild or transient symptoms, which decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress, which warrants only a 10 percent rating.  In short, the Board does not find that the Veteran's symptoms have been of such frequency, severity, and duration that they resulted in occupational and social impairment with reduced reliability and productivity to warrant a higher 50 percent evaluation at any point during the period of appeal.

B.  Bilateral Shoulder Tendonitis

Rating Criteria

The Veteran's right and left shoulder tendonitis are both rated under Diagnostic Code 5024-5201.  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 assigned rating; the additional code is shown after the hyphen.  Here, the first four digits, 5024, represent the diagnostic used to rate tenosynovitis.  The second four digits after the hyphen, 5201, represent the diagnostic code for rating limitation of motion of the arm.  

Under Diagnostic Code 5201, a 20 percent rating is assigned for limitation of motion of the major arm or minor arm to the shoulder level, or for limitation of motion of the minor arm to midway between the side and shoulder level.  A 30 percent rating is warranted for limitation of motion of the major arm to midway between the side and shoulder level, or for limitation of motion of the minor arm to 25 degrees from the side.  A schedular maximum 40 percent rating is warranted for limitation of motion of the major arm to 25 degrees from the side.  38 C.F.R. § 4.71a, Diagnostic Code 5201.  

The terms "major" and "minor" are used in the rating criteria to refer to the dominant or nondominant upper extremity.  38 C.F.R. § 4.69.  Here, the Veteran is right-handed.  Therefore, his right shoulder is evaluated as major, and the left shoulder is minor.

Standard range of motion of the shoulder is forward elevation (flexion) to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees.  38 C.F.R. § 4.71, Plate I.  Forward flexion and abduction to 90 degrees amounts to shoulder level.

Analysis

The Board finds that for the entire period of appeal, the record does not demonstrate the requisite manifestations for ratings in excess of 20 percent for right or left shoulder tendonitis.  For a 30 percent rating for the major (right) arm under Diagnostic Code 5201, the evidence must show limitation of motion of the arm to midway between the side and shoulder level.  In this case, the evidence shows that for the entire period of appeal, forward flexion of the right arm was limited to no more than 100 degrees and abduction was limited to no more than 90 degrees.  For a 30 percent rating for the minor (left) arm under Diagnostic Code 5201, the evidence must show limitation of motion of the arm to 25 degrees from the side.  In this case, the evidence shows that for the entire period of appeal, forward flexion of the left arm was limited to no more than 100 degrees and abduction was limited to no more than 90 degrees.  

In a January 1997 VA examination, the Veteran indicated that his tendonitis was worse, but the pain did not bother him as long as he was not working overhead.  The examiner indicated that the Veteran was right-handed.  He was tender in the bilateral deltoids, with the right greater than the left, and it was hard to keep his arms elevated against resistance.  

In a May 1998 VA examination, the Veteran reported having occasional pain in both shoulders, more so with heavier activities.  Upon physical examination, the Veteran had a restricted range of motion secondary to pain, with forward flexion of both shoulders to 160 degrees, abduction to 160 degrees, and internal and external rotation to 80 degrees bilaterally.  There was a positive impingement sign with forward flexion and internal rotation of both shoulders and mild acromioclavicular joint tenderness with forward flexion, cross chest, and adduction of both shoulders.  The right shoulder had more impingement signs than the left, and a sensory examination was normal in both upper extremities.  The Veteran was nontender to palpation over the biceps tendon bilaterally, and there was mild tenderness to palpation over the bilateral acromioclavicular joints.  Muscle strength of the bilateral elbows and shoulders were normal.  X-rays were normal bilaterally.  The examiner diagnosed bilateral mild shoulder impingement.  

In an August 1998 VA examination, the Veteran reported that he had soreness in his shoulders and lifted his hands with great difficulty above the head.  X-rays were normal bilaterally.

In an August 1999 VA examination, the Veteran reported that the muscles in both shoulders ached.  The trapezius muscle on the right side was also painful.  He reported having no significant change since last year, and continued to take Motrin for pain.  The Veteran stated the pain got worse when he had to work hard for a prolonged time, such as cutting a tree after a recent storm.  Upon examination, the muscles were not tender, rigid, or swollen in either shoulder, and the ranges of motion were within normal limits and unchanged since the last examination.  The examiner diagnosed a right trapezius and deltoid muscle sprain, stable.  X-rays were negative bilaterally.

In an October 2002 VA examination, the Veteran reported that his shoulder tendonitis limited his shoulder workouts that he tried to perform every day and limited his overhead activities.  Upon examination, there was no evidence of deformity, scars, or atrophy.  The Veteran could forward flex to 90 degrees without pain and 100 degrees with pain bilaterally.  Abduction was to 80 degrees bilaterally without pain and 90 degrees with pain bilaterally.  Muscle strength was good, sensation to pinprick was intact, and reflexes were intact.  The diagnosis was chronic bursitis of the bilateral shoulders.  X-rays showed mild bilateral degenerative changes involving the acromioclavicular joints.  

VA treatment records indicate that in August 2004, the Veteran reported that his right shoulder had been bothering him, and that he had not been recently taking his diclofenac regularly.  

In a December 2006 VA examination, the Veteran reported having pain and swelling in both shoulders.  He used diclophenac twice per day and did stretching exercises.  Range of motion measurements in both shoulders showed flexion to 150 degrees (with pain at 150 degrees), abduction to 130 degrees, and external and internal rotation to 90 degrees (with pain at 60 degrees of external rotation).  X-rays were normal bilaterally.  

In an August 2013 VA examination, the Veteran reported that his bilateral shoulder pain persisted "off and on."  He had difficulty doing any job that involved working overhead and had to give up weightlifting.  During a flare-up, his pain increased.  He used Celebrex for relief.  The examiner indicated that the Veteran's dominant hand was his right hand.  Range of motion measurements in the right shoulder showed flexion to 130 degrees (with objective evidence of painful motion at 120 degrees) and abduction to 120 degrees (with pain at 110 degrees).  The left shoulder had flexion to 120 degrees (with pain at 110 degrees) and abduction to 105 degrees (with pain at 100 degrees).  After repetitive-use testing with three repetitions, right shoulder flexion was to 115 degrees and abduction was to 105 degrees, and left shoulder flexion was to 105 degrees and abduction was to 100 degrees.  Other symptoms included weakened movement and excess fatigability bilaterally.  There was no evidence of localized tenderness or pain on palpation of either shoulder, and there was no guarding of either shoulder.  Muscle strength testing was normal bilaterally and tests for rotator cuff conditions were all negative.  There was a history of mechanical symptoms (clicking, catching, etc.) bilaterally, but no history of recurrent dislocation of the glenohumeral joint.  The Veteran did not have an acromioclavicular (AC) joint condition or any other impairment of the clavicle or scapula.  

In September 2015, an MRI of the left shoulder showed severe supraspinatus and infraspinatus tendonitis, moderate subacromial/subdeltoid bursitis, and moderate acromioclavicular osteoarthritis.  On September 25, 2015, the Veteran had a left shoulder arthroscopy, subacromial decompression, and a distal clavicle excision surgery.  As discussed in the Introduction, the RO assigned a 100 percent rating for the left shoulder tendonitis from September 25, 2015, to December 31, 2015, for surgery necessitating convalescence; the 100 percent rating is the maximum rating available; as such, this period of time is not on appeal.  

In a January 2016 examination, the Veteran reported that he had surgery in September 2015 and that his right shoulder had fared better over time, but he still had popping and pain, especially after working out or doing house work.  Flare-ups of pain occurred that lasted for hours.  Range of motion measurements in the right shoulder showed flexion to 160 degrees, abduction to 130 degrees, external rotation to 80 degrees, and internal rotation to 50 degrees.  Pain was noted during all range of motion movements, but there was no objective evidence of localized tenderness or pain on palpation, nor was there evidence of pain with weight-bearing, or crepitus.  Range of motion measurements in the left shoulder showed flexion to 125 degrees, abduction to 110 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees.  Pain was noted during all range of motion movements, there was moderate tenderness on palpation, and there was weakened movement.  There was no evidence of pain with weight-bearing or crepitus.  After repetitive-use testing with at least three repetitions, ranges of motion remained unchanged bilaterally.  The examiner indicated that that although the Veteran was not being examined immediately after repetitive use over time or during a flare-up, the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use and during flare-ups.  The right shoulder had normal muscle strength (5/5), and the left shoulder had reduced muscle strength of active movement against some resistance (4/5).  There was no muscle atrophy in either shoulder.  Tests for rotator cuff conditions were negative bilaterally, and there was no shoulder instability, dislocation, or labral pathology suspected.   There was also no clavicle, scapula, AC joint, or sternoclavicular joint condition suspected, and the Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or a condition of the humerus in either shoulder.  

In sum, the Board finds that for the entire period of appeal, the right shoulder tendonitis does not more nearly approximate limitation of motion of the major arm to midway between the side and shoulder level, to warrant an increased rating of 30 percent under Diagnostic Code 5024.  Rather, the evidence shows that for this period of the appeal, flexion was to at least 100 degrees and abduction was to at least 90 degrees.  Moreover, the Board notes that aside from the October 2002 VA examination, flexion was noted in five other VA examinations to be to at least 115 degrees and abduction was noted to be to at least 105 degrees.  Such impairment is productive of a disability picture warranting a 20 percent rating, as forward flexion and abduction to 90 degrees amounts to shoulder level.

Similarly, for the period of appeal prior to September 25, 2015, and from January 1, 2016, the left shoulder tendonitis does not more nearly approximate limitation of motion of the arm to 25 degrees from the side to warrant an increased rating of 30 percent under Diagnostic Code 5201.  Rather, the evidence shows that for this period of the appeal, flexion was to at least 100 degrees and abduction was to at least 90 degrees.  Moreover, the Board notes that aside from the October 2002 VA examination, flexion was noted in five other VA examinations to be to at least 110 degrees and abduction was noted to be to at least 100 degrees.  Such impairment is productive of a disability picture warranting a 20 percent rating, as forward flexion and abduction to 90 degrees amounts to shoulder level.

The Board has considered whether higher disability ratings are warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint.  The Board notes, however, that the rating criteria are intended to take into account functional limitations, and therefore the provisions of 38 C.F.R. §§ 4.40 and 4.45 could not provide a basis for a higher evaluation.  See 68 Fed. Reg. 51454 -5 (Aug. 27, 2003).  In any event, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination.  See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  The sole indication that the right shoulder motion was limited to midway between the side and shoulder level was the October 2002 VA examination finding that the Veteran could abduct to 80 degrees without pain, and to 90 degrees with pain.  Such limitation of motion was not found on any of the other VA examinations conducted in May 1998, August 1999, December 2006, August 2013, and January 2016.  Thus, the Board does not find that the October 2002 examination results more nearly approximate a disability picture productive of limitation of motion of the major arm to midway between the side and shoulder level to warrant a 30 percent rating.  With regard to the left shoulder tendonitis, the range of motion measurements never approached a finding of motion that was limited to 25 degrees from the side, even taking into account the effects of pain, fatigability, weakness, incoordination, or repeated use, to warrant a 30 percent rating.  See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5242; DeLuca, 8 Vet. App. at 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Thus, the Board finds that the 20 percent ratings for the right and left shoulder tendonitis contemplate functional loss due to pain, excess fatigability, and less movement.  There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination at any point during the period of appeal.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. 

Finally, consideration has been given to other potentially applicable diagnostic codes.  However, the Board finds no basis upon which to assign evaluations in excess of 20 percent for the right or left tendonitis at any point during the period of the appeal.  The Veteran has not been found to have ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula to warrant consideration of Diagnostic Codes 5200 (scapulohumeral articulation, ankylosis of), 5202 (other impairment of humerus), or 5203 (impairment of clavicle or scapula).

C.  Cervical Spine DJD

Rating Criteria

The Veteran's cervical spine DJD is rated under Diagnostic Code 5290-5242.  The first four digits, 5290, represent the diagnostic used to rate tenosynovitis.  

Prior to September 26, 2003, Diagnostic Code 5290 provided ratings based on limitation of motion of the cervical spine.  Slight limitation of motion of the cervical spine was to be rated 10 percent disabling; moderate limitation of motion of the cervical spine was to be rated 20 percent disabling; and severe limitation of motion of the cervical spine was to be rated 30 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003).  

Terms such as severe, moderate, and mild are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6 (2016).  Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 4.2, 4.6.

Diagnostic Code 5242, for degenerative arthritis of the spine, is rated under the following General Rating Formula for Disease and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Code 5242. 

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242.

A 20 percent evaluation is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.

A 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  Id. 

A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine.  Id. 

A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine.  Id.

Note (1):  Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Id. 

Note (2):  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id.

Note (4):  Round each range of motion measurement to the nearest five degrees.  Id.

Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id.

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  Id.

Diagnostic Code 5242 also requires consideration of Diagnostic Code 5003, degenerative arthritis (hypertrophic or osteoarthritis).  38 C.F.R. § 4.71a, Diagnostic Code 5242.  Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

Analysis

The Board finds that for the period of appeal prior to November 7, 2013, and from February 1, 2014, the record does not demonstrate the requisite manifestations for a rating in excess of 20 percent for the service-connected cervical spine DJD.  For a 30 percent rating under Diagnostic Codes 5290 or 5242, the evidence must show that forward flexion is limited to 15 degrees or less, there is unfavorable ankylosis of the entire cervical spine, or there is severe limitation of motion of the cervical spine.  In this case, the weight of the competent and credible evidence shows that for the entire period of the appeal, forward flexion of the cervical spine was limited to no more than 20 degrees, there was no ankylosis, and the disability is not severe.  

VA treatment records indicate that in March 2002, the Veteran reported having left neck pain and limited motion, which got worse at the end of the day.  X-rays showed moderate degenerative disc disease and osteoarthritic changes of the mid and lower cervical spine.  

VA x-rays taken in February 2005 showed mild degenerative changes involving the mid to lower cervical spine, disc disease at the C5-C6 level, posterior migration of C3 in relationship to C4 in neutral and extension and found to reduce in flexion, and bilateral neural foramina narrowing on the right at C6-C7 and C7-T1 and on the left at C5-C6.  

In August 2006, the Veteran reported having neck and left arm pain.  X-rays taken the previous month showed mild to moderate disc space narrowing.  The treating neurologist diagnosed cervical degenerative bony disease, mild to moderate, induced left arm and shoulder pain.  There was no clinical sign or symptom of radiculopathy or carpal tunnel syndrome.  

In a December 2006 VA examination, the Veteran reported that he had pain and stiffness in his neck ever since a motor vehicle accident in Italy.  He reported that he now had a numbness and tingling in both hands.  Upon examination, there was no evidence of spasm, atrophy, guarding, tenderness, or weakness.  The Veteran's posture and gait were normal.  Elbow flexion and extension and wrist flexion and extension were normal bilaterally (active movement against full resistance).  The left finger flexors, abduction, and thumb opposition showed active movement against some resistance.  The right finger flexors, abduction, and thumb opposition were normal.  Muscle tone was normal, and results of a sensory examination were normal.  Range of motion measurements showed cervical flexion to 50 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, and right and left lateral rotation were to 20 degrees, all with pain at the end ranges of motion.  The examiner indicated that July 2006 films showed that the Veteran had mild-moderate cervical spine DJD.  

March 2007 x-rays showed multi-level spondylosis in the cervical spine, central/left paracentral disc protrusion at C7-T1, central disc protrusion at C4-C5, and canal narrowing at C4-C5, C5-C6, and C6-C7.  

Results of a March 2007 nerve conduction study at were normal, with no definite electrodiagnostic evidence of left C5-T1 radiculopathy, brachial plexopathy, median, or ulnar neuropathy; however, in a follow-up neurology appointment in April 2007, the Veteran was found to have segmental myoclonus and was started on Keppra.  

In March and April 2008, the Veteran had physical therapy at a private facility for his neck pain.  

In December 2009, the Veteran had another VA examination of the cervical spine.  He reported a moderate pain that varied between dull and sharp, which occurred between one and six days per week, with the pain radiating mostly into the left arm.  Upon physical examination, the Veteran's cervical spine did not show evidence of spasm, atrophy, or weakness.  There was guarding and pain with motion on both sides, and tenderness on the left side.  Ranges of motion measurements showed flexion to 40 degrees, extension to 30 degrees, left and right lateral flexion to 20 degrees, left lateral rotation to 60 degrees, and right lateral rotation to 30 degrees.  After three repetitions of range of motion movements, extension was reduced to 25 degrees.  X-rays were taken and compared to the 2006 examination x-rays.  The impression was of essentially stable degenerative changes.  

Private treatment records indicate that a January 2013 MRI showed degenerative changes of the cervical spine, most significant at C5-C6 and C6-C7, and moderate left neuroforaminal stenosis at C6-C7on the basis of disc bulge, endplate osteophytes, and facet arthropathy.  X-rays showed straightening of the normal cervical lordosis with disc space narrowing and osteophyte formation at C5-C6 and C6-C7.  In March 2013, the Veteran reported his neck pain becoming much worse in the past year.  He described the pain as constant and aching, stabbing, burning, tingling, or throbbing.  Symptoms were exacerbated by standing, sitting, and lying down.  The Veteran had a non-antalgic gait and a reduced range of motion in all directions with increased pain with extension and rotation.  He also had tenderness to palpation of the cervical paraspinal bilateral, trapezius bilateral, and rhomboid bilateral muscles.  His treatment plan including a home exercise program, a TENS unit, Celebrex, and Cymbalta.  In a July 2013 follow-up appointment, the Veteran reported getting good pain relief with the TENS unit and medication. 

On November 7, 2013, the Veteran had a cervical diskectomy fusion, anterior, multilevel C5-C6, C6-C7, at a private facility.  As discussed in the Introduction, the RO assigned a 100 percent rating for the cervical spine DJD from November 7, 2013, to January 31, 2014, for surgery necessitating convalescence; the 100 percent rating is the maximum rating available; as such, this period of time is not on appeal.  

In a May 2014 VA examination of the cervical spine, the Veteran was noted to have IVDS and cervical radiculopathy.  He reported that since his November 2013 surgery, he had a significant reduction in his neck pain and stiffness.  He also had an improvement in his left arm numbness and a reduction in the jerking motion of his arm.  However, he still had some flare-ups, which had occurred 3-4 times since the surgery and were precipitated by cold weather or weather changes.  During a flare-up, the Veteran had increased stiffness and pain in the neck that lasted 1-2 days and prevented him from going to work if it happened on a weekday.  Range of motion measurements showed forward flexion to 20 degrees, extension to 20 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 35 degree, and left lateral rotation to 45 degrees.  There was objective evidence of pain at the endpoints of all of the ranges of motion.  After repetitive-use testing with three repetitions, ranges of motion remained unchanged.  The Veteran did not have any localized tenderness or pain to palpation, muscle spasms, or guarding.  Muscle strength in the bilateral elbows, wrists, and fingers was normal, and there was no muscle atrophy.  Deep tendon reflexes of the bilateral biceps, triceps, and brachioradialis were normal.  Results of a sensory examination showed decreased sensation to light touch in the left inner/outer forearm (C6-T1) and hand/fingers (C6-C8).  The Veteran had mild left upper extremity radiculopathy of the upper radicular group.

In a December 2016 VA examination, the Veteran reported that the fusion surgery in 2014 improved his condition greatly, relieving his neck pain almost completely; however, his range of motion was still restricted, causing him difficulty turning his neck while driving.  He reported having flare-ups of pain when he turned his neck in either direction, which was relieved by rest.  Range of motion measurements showed forward flexion to 35 degrees, extension to 25 degrees, right lateral flexion to 22 degrees, left lateral flexion to 21 degrees, right lateral rotation to 61 degrees, and left lateral rotation to 63 degrees.  Pain was noted on right and left lateral flexion.  There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  After repetitive-use testing with at least three repetitions, there was no additional loss of function or range of motion.  The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time or during a flare-up.  The Veteran did not have guarding or muscle spasms, and muscle strength of the elbows, wrists, and fingers were normal.  Deep tendon reflexes of the bilateral biceps, triceps, and brachioradialis were normal, and results of a sensory examination of the shoulder area, inner/outer forearms, and hands/fingers were also normal.  The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy.

In sum, the Board finds that for the entire period of appeal, the cervical spine DJD does not more nearly approximate forward flexion limited to 15 degrees or less, unfavorable ankylosis of the entire cervical spine, or severe limitation of motion, which is necessary to warrant an increased rating of 30 percent under the Diagnostic Code 5242 (2016) and Diagnostic Code 5290 (2003).  Rather, the evidence shows that for the entire period of appeal, forward flexion of the cervical spine was to at least 20 degrees and there was no ankylosis, which is productive of a disability picture warranting a 20 percent rating under Diagnostic Code 5242.  In addition, the evidence shows that the Veteran's cervical spine DJD limitation of motion does not rise to the level of "severe" at any point of the appeal. Rather, the Veteran retained ranges of motion for all measured motions, with the worst combined range of motion being 140 degrees.  The Board equates such limitation to "moderate" limitation.

The Board has considered whether a disability rating higher than 20 percent is warranted for this period of appeal based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint.  The Board notes, however, that the rating criteria are intended to take into account functional limitations, and therefore the provisions of 38 C.F.R. §§ 4.40 and 4.45 could not provide a basis for a higher evaluation.  See 68 Fed. Reg. 51454 -5 (Aug. 27, 2003).  In any event, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination.  See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  Although the Veteran had pain on motion, his forward flexion consistently noted to be 20 degrees or greater.  Thus, any additional limitation due to pain did not more nearly approximate a finding of flexion to 15 degrees or less, or favorable ankylosis of the entire cervical spine.  See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5242; DeLuca, 8 Vet. App. at 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Thus, the Board finds that the 20 percent rating for the period of appeal prior to November 7, 2013, and from February 1, 2014 contemplated functional loss due to pain, excess fatigability, and less movement.  There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination during this period of appeal.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. 

Consideration has also been given to the potential application of the other diagnostic codes for disabilities of the spine.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.  However, the Board finds no basis upon which to assign an evaluation in excess of 20 percent for the Veteran's cervical spine DJD at any point during the period of the appeal, aside from a separate rating for radiculopathy and myoclonus of the left upper extremity, for which the Veteran has already been service-connected and is not on appeal.  The Board acknowledges that in the May 2014 VA examination, the Veteran was found to have IVDS.  Under Diagnostic Code 5243, IVDS is rated under the under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician.  Id.   In this case, the Veteran has not been prescribed bed rest by a physician.  As such, Diagnostic Code 5243 is not for application.

D.  Extraschedular Consideration

The Board has considered whether referral for an "extraschedular" evaluation is warranted.  In exceptional cases, an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule and no referral is required. 

In the second step of the inquiry, however, if the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology and is found inadequate, it must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). 

When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

In this case, the evidence fails to show unique or unusual symptomatology regarding the Veteran's service-connected disabilities that would render the schedular criteria inadequate.  The Veteran's symptoms, including pain, limited motion, depressed mood, sleep impairment, anxiety, and irritability, are contemplated in the ratings assigned; thus, the application of the Rating Schedule is not rendered impractical.  Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; rather, he merely disagreed with the assigned disability ratings for his levels of impairment.  In other words, he did not have any symptoms from his service-connected disabilities that are unusual or different from those contemplated by the schedular criteria.  Moreover, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  Accordingly, the Board finds that referral for consideration of extraschedular ratings is not warranted, as the manifestations of the Veteran's disabilities are considered by the schedular rating assigned.  38 C.F.R. § 3.321; Thun, 22 Vet. App. 111.


ORDER

Service connection for hyperaldosteronism is denied.

An initial rating in excess of 30 percent for PTSD with major depression is denied.

An initial rating in excess of 20 percent for the right shoulder tendonitis is denied.

For the period of appeal prior to September 25, 2015, and from January 1, 2016, a rating in excess of 20 percent for the left shoulder tendonitis is denied.

For the period of appeal prior to November 7, 2013, and from February 1, 2014, a rating in excess of 20 percent for cervical spine DJD is denied.



______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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