13-25 714
13-25 714
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served on active duty July 1989–July 1993 and appealed VA RO rating decisions from 2011, 2013.
- Claims on appeal: (1) service connection for an acquired psychiatric disorder (including PTSD/depression); (2) increased rating for left shoulder dislocations (currently 30%); (3) increased rating for left shoulder arthritis/limitation of motion (currently 20%).
- VA exams (March 2011, March 2017) show recurrent left shoulder dislocations and limited motion (flexion/abduction to ~80°) but no fibrous union, nonunion, or loss of humeral head; muscle strength 4/5 on testing.
- Record and hearing testimony describe functional limitations and flare-ups, but treatment notes and activities (employment, fishing, gardening, keyboard use) show greater function than alleged limitations.
- Board denied increases for both shoulder issues (no criteria met for >30% for dislocations or >20% for arthritis/limitation). The psychiatric claim was remanded for further development to verify claimed in-service stressors and, if verified, obtain a VA psychiatric opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for psychiatric disorder (PTSD/depression) | Veteran asserts in-service stressors (fires, death, suicide aboard USS Independence) support PTSD diagnosis | RO/Board found stressors not yet verified; further development needed | REMANDED for verification of stressors and, if verified, VA psychiatric opinion |
| Increased rating for left shoulder dislocations (>30%) | Veteran seeks rating above 30% for recurrent dislocations and post-op sequelae | Medical evidence shows recurrent dislocations but no fibrous union, nonunion, or loss of head (higher DC criteria) | DENIED — no evidence meeting higher DC criteria for >30% |
| Increased rating for left shoulder arthritis/limitation of motion (>20%) | Veteran contends limitation of motion and functional loss warrant >20% | Objective ROM measures ~80° flexion/abduction; treatment notes often show mild or full ROM; functional reports inconsistent | DENIED — criteria for greater than 20% not met |
| Separate compensable rating for surgical scarring | Veteran implies post-op scarring warrants separate rating | March 2017 exam and record do not support separate compensable scarring | DENIED — no support for separate compensable scar rating |
Key Cases Cited
- AB v. Brown, 6 Vet. App. 35 (procedural principle: partial grant does not end appellate status)
- DeLuca v. Brown, 8 Vet. App. 202 (objective evidence and functional loss framework for musculoskeletal ratings)
- Mitchell v. Shinseki, 25 Vet. App. 32 (consideration of functional loss and examination adequacy)
- Gagne v. McDonald, 27 Vet. App. 397 (VA duty to assist and JSRRC verification over multi-month periods)
- Kutscherousky v. West, 12 Vet. App. 369 (claimant may submit additional evidence after remand)
- Gilbert v. Derwinski, 1 Vet. App. 55 (benefit-of-the-doubt standard)