Citation Nr: 1122495	
Decision Date: 06/09/11    Archive Date: 06/20/11

DOCKET NO.  05-38 743	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to a rating higher than 20 percent for a left shoulder disability prior to January 16, 2010, and a rating higher than 30 percent since.  

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

Tiffany Sykes, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from May 1982 to May 1984.

This appeal to the Board of Veterans' Appeals (Board) is from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

In September 2009, as support for his claim, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, commonly referred to as a Travel Board hearing.  Prior to the hearing, the Veteran withdrew his appeal for service connection for a deviated septum and for sinus infections, sinus headaches, and sleep apnea, including as secondary to the deviated septum.  38 C.F.R. § 20.204 (2010).  So the only issue remaining on appeal was whether he was entitled to a rating higher than 20 percent for his left shoulder disability.

In November 2009, the Board remanded this remaining claim to the RO via the Appeals Management Center (AMC) for further development and consideration, including especially to have the Veteran reexamined to reassess the severity of his left shoulder disability.  He had this additional VA compensation examination on January 16, 2010, and after considering the results of it and other evidence, including VA treatment records from the VA Medical Center (VAMC) in Long Beach, California, the AMC issued a decision in December 2010 increasing the rating for the left shoulder disability from 20 to 30 percent, retroactively effective from January 16, 2010, the date of that VA compensation examination.  The Veteran continued to appeal, requesting an even higher rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).  Since the most recent supplemental statement of the case (SSOC) in December 2010, he has submitted additional evidence, which the Board received in March 2011, and he waived his right to have the RO initially consider it.  38 C.F.R. §§ 20.800, 20.1304 (2010).


A January 2011 statement accompanying this additional evidence indicates the Veteran is unable to work - at least partly on account of the severity of his left shoulder disability.  In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant:  (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a).  And as the Court more recently explained in Rice v. Shinseki, 22 Vet. App. 447 (2009), if the Board determines the TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim to the RO.  Remands to the RO generally are via the AMC, unless the Veteran is represented by a private attorney, in which case the remand is directly to the RO.  VA's Office of General Counsel has indicated that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability that formed the basis of the TDIU claim.  VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001).

This January 2011 statement cites both service-connected and nonservice-connected disabilities as the reasons the Veteran can no longer work.  And a TDIU necessarily must be based on just service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2010).  Nevertheless, it must be determined whether he is unemployable - and therefore entitled to a TDIU - even if only his 
service-connected left shoulder disability is considered (this is his only service-connected disability).  A medical opinion is needed, though, before deciding this additional claim.  See Friscia v. Brown, 7 Vet. App. 294, 297 (1994) (indicating the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal).  See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).  So the Board is remanding this derivative TDIU claim to the RO via the AMC for this and all other appropriate development and consideration. 


FINDINGS OF FACT

1.  According to the results of a January 6, 2005 evaluation by Dr. J.Y., abduction of the Veteran's left shoulder (his major/dominant shoulder) is limited to just 15 degrees, especially when considering the effect of his persistent pain, so to less than 25 degrees from his side.

2.  He has continued to have this amount of restricted abduction during the several years since, even since his January 16, 2010 VA compensation examination.


CONCLUSION OF LAW

The criteria are met for a higher 40 percent rating for the left shoulder disability, both prior to and since January 16, 2010.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code (DC) 5201 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In the interest of clarity, the Board will initially discuss whether the claim has been properly developed for appellate review.  The Board will then address the claim on its underlying merits, providing relevant VA case law, regulations and statutory provisions, the relevant factual background, and an analysis of its decision.

I.  The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).


Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  

These VCAA notice requirements apply to all five elements of a claim, including the downstream disability rating and effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative of the claim.  The Supreme Court rejected the notion that all VA notice errors are presumptively prejudicial.  Moreover, the Supreme Court clarified that, as the pleading party, the Veteran, not VA, bears this burden of proof of showing there is a VCAA notice error and that it is more than harmless.


The Veterans Court initially held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because:  (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law.

The Veterans Court further held in Vazquez that, for an increased-compensation claim, 38 U.S.C. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability and the effect that such worsening or increase has on the claimant's employment and daily life.  

On appeal, however, in Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009) the Federal Circuit vacated and remanded important aspects of the lower Veterans Court's holding.  Significantly, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific."  Similarly, "while a Veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication."  Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez requires the VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence, we vacate the judgments."  Vazquez, 2009 WL 2835434, at 10.


It since has been held that after a notice error, such as failing to inform the appellant to submit evidence demonstrating the effect that a worsening of the disability has on employment, is found in an increased rating claim, the appellant's burden to demonstrate prejudice at the U. S. Court of Appeals for Veterans Claims (Court/CAVC) level does not shift to VA unless notice is not provided at all.  See Vazquez-Flores v. Shinseki, No. 05-0355, 2010 WL 4146124 (Vet. App. Oct. 22, 2010).

In this case, letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in May 2004, March 2006, May 2008, October and December 2009.  The letters, especially in combination, informed him of the type of evidence required to substantiate his claim for a higher rating for this disability and of his and VA's respective responsibilities in obtaining this supporting evidence.  The March 2006, May 2008, and October and December 2009 letters also complied with Dingess by discussing the disability rating and downstream effective date elements of his claim.  And of equal or even greater significance, after providing that additional Dingess notice, the RO readjudicated the claim in the September and November 2008 and December 2010 SSOCs - including considering the additional evidence received in response to those additional notice letters and the November 2009 Board remand.  So any arguable timing defect in the provision of that additional notice has been rectified.  See again Mayfield IV and Prickett, supra.  

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable, and therefore appellate review may proceed without prejudicing him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO and AMC obtained his service treatment records (STRs), VA treatment records, and arranged for a VA compensation examination in January 2010 (following and as a result of the Board's November 2009 remand) to reassess the severity of his left shoulder disability.  And, indeed, it was primarily based on the results of that additional examination that the AMC increased the rating for his left shoulder disability from 20 to 30 percent as of the date of that examination.

Since there is now as a consequence sufficient evidence in the file to fairly decide this claim insofar as determining the severity of this disability for the two time periods at issue, yet another examination is not needed.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).  Moreover, the Board is satisfied there was substantial compliance with the November 2009 remand directives in scheduling this additional examination and obtaining the information needed to address the applicable rating criteria.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Therefore, the Board is satisfied that VA has provided all assistance required by the VCAA and that appellate review may proceed without prejudicing the Veteran.  

II.  The Governing Statutes and Regulations and Precedent Cases

Disability ratings are determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings 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 active military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 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.  See 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

When, as here, the claim at issue does not involve an initial rating (see Fenderson v. West, 12 Vet. App. 119 (1999)), rather, an appeal of an established rating, the present level of disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

But having said that, the Court has held that, in determining the present level of disability for any increased-evaluation claim, the Board must consider whether to "stage" the rating.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings demonstrating distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary.  The relevant temporal focus for adjudicating the level of disability of an increased-rating claim is from one year before the claim for a higher rating was filed - so, here, since April 2003 - until VA makes a final decision on the claim.  Hart, supra; see also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  

The report of the Veteran's January 2010 VA compensation examination shows he is left-hand dominant (left-handed), so his left arm is considered his major arm, meaning his left shoulder disability is affecting his major or dominant upper extremity.

The Veteran's left shoulder disability is rated under 38 C.F.R. § 4.71a, DC 5201, for limitation of motion of the arm (and shoulder).  Under this DC, a 20 percent rating is assigned if the range of motion of the major arm is limited to the shoulder level (i.e., 90 degrees of abduction); a 30 percent rating is assigned if the range of motion of the major arm is limited to midway between the side and shoulder level (i.e., 45 degrees of abduction); and a 40 percent rating is assigned if the range of motion of the major arm is limited to 25 degrees from the side.  See 38 C.F.R. § 4.71a, DC 5201.

Normal shoulder motion is from 0 to 180 degrees of forward elevation (flexion), from 0 to 180 degrees of abduction, and from 0 to 90 degrees of internal and external rotation.  See 38 C.F.R. § 4.71, Plate I.


When determining the severity of a musculoskeletal disability, which is at least partly rated on the basis of range of motion, VA must consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively shown due to the extent of his pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when his symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria.  See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), citing 38 C.F.R. §§ 4.40, 4.45, 4.59.  If, however, a Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable.  Johnston v. Brown, 10 Vet. App. 80 (1997).  In addition to these types of symptoms, other considerations include whether there is swelling, deformity or atrophy from disuse.  38 C.F.R. § 4.45.

Other possible diagnostic codes for rating shoulder disabilities are DC 5202 for other impairment of the humerus and DC 5203 for impairment of the clavicle or scapula.  DC 5202 provides a 20 percent rating for malunion of the humerus with moderate deformity of the major or minor shoulder, malunion of the humerus with marked deformity of the minor shoulder, infrequent episodes of recurrent dislocations of the humerus at the scapulohumeral joint and guarding of movement only at the shoulder level of the major or minor arm, or frequent episodes of recurrent dislocations of the humerus at the scapulohumeral joint and guarding of all arm movements of the minor arm.  A 30 percent rating is assigned if there is malunion of the humerus with marked deformity of the major shoulder, or frequent episodes of recurrent dislocations of the humerus at the scapulohumeral joint and guarding of all arm movements of the major arm.  A 40 percent rating is assigned if there is fibrous union of the humerus of the minor arm.  A 50 percent rating is assigned for fibrous union of the humerus of the major arm or nonunion of humerus (false flail joint) of the minor arm.  A 60 percent rating is assigned for nonunion of humerus the major shoulder.  Loss of the head of the humerus (flail shoulder) is rated as 70 percent for the minor arm and 80 percent for the major arm.  38 C.F.R. § 4.71a, DC 5202.

DC 5203 provides a 10 percent rating for malunion of the clavicle or scapula of the major or minor arm, or nonunion of the clavicle or scapula without loose movement of the major or minor arm.  A higher 20 percent rating is warranted if there is nonunion of the clavicle or scapula with loose movement of the major or minor arm, or dislocation of the clavicle or scapula of the major or minor arm.  38 C.F.R. § 4.71a, DC 5203.

A.  Entitlement to a Rating Higher than 20 Percent prior to January 16, 2010

As already alluded to, the AMC increased the rating for the Veteran's left shoulder disability from 20 to 30 percent as of his January 16, 2010 VA compensation examination, on the premise that that was the first instance when it was shown he was entitled to this higher rating.  So the rating for this disability already has been "staged" to compensate him for this increased level of disability based on the results of that VA compensation examination.  However, the Board finds he was entitled to a higher rating even before that VA compensation examination on January 16, 2010, and, indeed, even to a rating higher than 30 percent.

The Veteran failed to appear for a prior VA compensation examination in June 2004, which was to have been performed by QTC Services.  So the Board does not have the benefit of any information or evidence that would have been obtained from that earlier evaluation.  There is other evidence in the file, however, which the Board also may consider in determining whether a higher rating was warranted prior to January 16, 2010.  This other evidence especially includes a January 2005 private treatment record from Dr. J.Y, and the Veteran's VA outpatient treatment records from April 2003 to February 2008.  He also testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board in September 2009 and provided several lay statements from friends in support of his claim for a rating higher than 20 percent during this immediately preceding period.


Dr. J.Y.'s January 2005 record concerns a left shoulder examination.  He did not find evidence of any neurological impairments, including numbness and tingling, but there was generalized atrophy of the left shoulder muscles, with palpation and tenderness from the front to the back and crepitus with rotation of this shoulder.  He also noted decreased range of motion with flexion and extension to just 30 degrees, internal rotation to just 10 degrees, external rotation to just 30 degrees, and abduction to just 15 degrees.  The Veteran reported pain on motion as an 8/10 for all of these measurements.  And Dr. J.Y. confirmed the Veteran had significant residual pain and limitation of movement with frequent crippling flares.

Because his abduction was to only 15 degrees, especially when considering the effect of his pain, the Veteran was entitled to a higher 40 percent rating for his left shoulder disability under DC 5201 even as of that January 2005 examination by Dr. J.Y. since the abduction was to less than 25 degrees from the Veteran's side.

The VA treatment records from April 2003 to February 2008 show the Veteran's continued complaints of and treatment for his left shoulder disability.  A March 2005 orthopedic consultation, so just two months after the January 2005 examination by Dr. J.Y., noted abduction initially to 45 degrees then to 110 degrees.  X-rays in January 2008 revealed a metallic screw through the glenoid, but no other abnormalities.

The Veteran had noticeably greater abduction (to 45 degrees) during that March 2005 orthopedic consultation than he did when examined by Dr. J.Y. just two months earlier, in January 2005, when his abduction was to only 15 degrees.  But even using the 45-degree measurement, rather than the 110-degree measurement, since the Veteran's pain apparently reduced his abduction to this extent, still would entitle him to a higher 30 percent rating under DC 5201, albeit not an even higher 40 percent rating, rather than just a 20 percent rating.  And since the results of Dr. J.Y.'s evaluation demonstrated the Veteran had even less abduction (just to 15 degrees rather than to 45 degrees as shown by the results of that March 2005 orthopedic consultation), the Board must resolve this doubt 

in the Veteran's favor and conclude his abduction is the lesser of the two and limited to just 15 degrees, in turn entitling him to the even higher 40 percent rating under DC 5201.  See 38 C.F.R. §§ 4.3, 4.7.

In making this determination, the Board also has considered the Veteran's lay statements and those from a friend and licensed vocational nurse (LVN).  These statements support his claim that his disability had increased in severity, even before the January 16, 2010 VA compensation examination, by discussing their observations of his rather constant pain and sometimes need for their help with routine chores and such.  He also testified during his September 2009 Travel Board hearing that he takes medication - including especially for his pain, and that he often has had to adjust the way he does his job, such as to reach or take items off shelves, and that he most definitely cannot lift his left arm above his head.  He is certainly competent to make these allegations.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Barr v. Nicholson, 21 Vet. App. 303 (2007).  And the objective medical findings mentioned support his claim of greater disability in this shoulder in these particular respects than is contemplated by his existing rating.  So his and the other's lay testimony concerning this is not just competent, but also credible, so ultimately probative.  See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Therefore, the Veteran is entitled to the higher 40 percent rating under DC 5201, as of the January 2005 evaluation by Dr. J.Y., because the abduction of the Veteran's left shoulder during that evaluation was limited to just 15 degrees when considering the effect of his pain.  See DeLuca, 8 Vet. App. at 206.  See also Harper v. Brown, 10 Vet. App. 125, 126 (1997) (discussing the three possible effective dates that may be assigned for a higher rating depending on the facts of the case:  (1) if the increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if the increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if the increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).  In this particular instance, the increase was shown in January 2005, so after the filing of the claim in April 2004, in turn meaning the increase is effective as of the date of entitlement - i.e., as of that January 2005 evaluation by Dr. J.Y.

40 percent is the highest possible rating under DC 5201.  And the even higher 50 percent rating under DC 5202 is unavailable because this even higher rating requires other impairment of the humerus - namely, fibrous union.  Moreover, this higher 40 percent rating the Veteran is receiving as a result of this decision exceeds any of the ratings available under DC 5203, even aside from the fact that it also is not shown this other DC warrants application since the Veteran does not have the type of impairment of his clavicle or scapula contemplated by this other DC.

B.  Since January 16, 2010

The Veteran has had a 30 percent rating for his left shoulder disability since January 16, 2010, the day of his VA compensation examination.  The only other relevant medical evidence in the file from this immediately succeeding period is his VA treatment records dated from January to June 2010. 

The January 2010 VA examination report notes the Veteran complained of a baseline pain of 4/10, but that flares (increases) to 8/10 with activity and includes occasional clicking and popping sensations (i.e., crepitus).  The examiner observed there was no evidence of swelling, heat, redness, and instability.  Forward flexion, abduction and internal rotation were all to just 30 degrees, and external rotation was even worse, indeed nonexistent, 0 degrees.  The examiner also confirmed there was pain throughout the range-of-motion testing.  He also noted a scar from the Veteran's prior surgery on his left anterior shoulder, but indicated this scar was superficial and did not cause any associated dysfunction, so asymptomatic.

This VA examiner surmised that the Veteran suffers from residual pain and limitation on range of motion.  This impacts his job function since he uses his arm primarily in his job of an ultrasonographer.  As to whether there is additional functional limitation on the joint, this VA examiner said he could not comment on this without resorting to mere speculation.

An examiner's statement, which recites the inability to come to an opinion (such as without having to resort to mere speculation), provides neither positive nor negative support for the claim.  The remainder of the report, however, must be considered as evidence.  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  The Federal Circuit Court has additionally held in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), that a determination requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began (or, here, whether there is additional functional limitation on the joint, such as on account of the Veteran's pain); therefore, classifying a medical opinion as "non-evidence" is "troubling."

The Court similarly has admonished the Board for relying on a medical opinion that was unable to comment, without resorting to speculation, as reason or justification for denying a claim.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data.

The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative").

The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.

Here, even acknowledging this VA examiner's inability to comment on whether there is additional functional limitation on the joint - such as on account of the type of factors discussed in DeLuca, this seems highly likely since the Veteran's abduction was to just 30 degrees, regardless, so sufficiently restricted to meet the requirements of DC 5201 for the higher 30 percent rating.  Therefore, when one also considers any potential additional effect due to his persistent pain, it also seems highly likely that his abduction is even greater limited, to at least 25 degrees from his side, so as to in turn warrant assigning the even higher 40 percent rating under DC 5201.  So he has continued to be entitled to this higher rating even since his January 16, 2010 VA compensation examination.  And, again, this is the highest possible rating under DC 5201.

DC 5202 does not apply, for the reasons and bases already discussed, and this higher 40 percent rating already exceeds all ratings available under DC 5203, even if it applied, which it also does not.

The Veteran's VA outpatient treatment records from January to June 2010 do not contain any objective clinical findings suggesting he is entitled to a rating higher than 40 percent for his left shoulder disability.  These records document his continued complaints of pain and discomfort in this shoulder and the treatment prescribed for the consequent disability, but do not mention or include the results of any range-of-motion testing of this shoulder or any discussion of the type of functional or other impairment contemplated by any other potentially applicable diagnostic code, such as DC 5202, so are not reason to assign an even higher rating under any other code.


Because the surgical scar is, for all intents and purposes, asymptomatic and does not cause any associated impairment or limitation, the Veteran is not entitled to additional compensation (i.e., a separate rating) for this scar under 38 C.F.R. § 4.118, DCs 7804 and 7805.

Since, however, he now has the highest possible rating under DC 5201 for his underlying left shoulder disability, the Board must additionally consider whether he is entitled to even greater compensation on an extra-schedular basis.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).

Extra-Schedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant referring this case for extra-schedular consideration.  38 C.F.R. § 3.321(b)(1) (2010).  The Board finds no evidence that the Veteran's left shoulder disability markedly interferes with his ability to work, meaning above and beyond that contemplated by his now even higher 40 percent schedular rating.  See 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  This is especially true when, as here, the schedular rating assigned is already in the upper end of the spectrum of possible schedular ratings.  See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired).

Although there are suggestions the Veteran has to make certain modifications to the manner and approach he takes to do his job, such as when reaching for objects on shelves, etc., there is no indication, for example, this has prevented him from doing his job or resulted in a demotion, less than satisfactory performance appraisal, denial of promotion, or anything of those sorts.  Also keep in mind the issue of his claimed unemployability will be addressed when adjudicating his TDIU claim on remand.


The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1).

Here, though, under this approach prescribed by VA, if the criteria reasonably describe the Veteran's disability level and symptomatology, then his disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  The Veteran's primarily complaints are of chronic pain in his left shoulder and resultant limitation of motion, both of which are contemplated by the schedular rating criteria and, thus, encompassed by his now higher 40 percent rating under DC 5201.

Furthermore, there is no evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations, or even any hospitalizations, suggesting he is not adequately compensated for this disability by the regular rating schedule.  He admittedly has had surgery on his left shoulder, but his evaluation and treatment for his disability has been primarily, if not entirely, on an outpatient basis, not as an inpatient, much less frequent inpatient.  See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

A higher 40 percent rating is granted for the left shoulder disability, both prior to January 16, 2010 (specifically, as of the January 6, 2005 evaluation by Dr. J.Y.) and since January 16, 2010 also, subject to the statutes and regulations governing the payment of VA compensation.


REMAND

In January 2011, the Veteran submitted a statement along with his January 2005 treatment record from Dr. J.Y. indicating the Veteran is unable to function and also unreliable due to his disabilities, and therefore cannot work at all.  So he has raised the additional issue of whether he is entitled to a TDIU.  See again Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).

As it stands, even after receiving a higher 40 percent rating for his left shoulder disability in this decision, he can only receive a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b), rather than schedular basis under 38 C.F.R. § 4.16(a), since this disability, which is his only service-connected disability, is not rated as at least 60-percent disabling.  But there remains this possibility, nonetheless.

In Mayhue v. Shinseki, No. 09-0014 (U.S. Vet. App. Jan. 18, 2011), the Court determined the Board had failed to apply 38 C.F.R. § 3.156(b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his posttraumatic stress disorder (PTSD).  The Court, citing Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), reasoned that a request for a TDIU is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability.  Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying initial claim.


The RO has not had an opportunity to initially consider this additional, derivative TDIU claim, much less denied it.  So it would be potentially prejudicial to the Veteran for the Board to consider this derivative claim before the RO, especially since a medical opinion is needed to determine whether the Veteran is, in fact, unemployable if only his service- connected left shoulder disability is considered.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Accordingly, this derivative TDIU claim is REMANDED for the following additional development and consideration:

1.  Send the Veteran a VCAA notice letter apprising him of the type of evidence and information needed to substantiate his derivative claim for a TDIU, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence.

2.  Have the Veteran examined to determine the effects of his service-connected left shoulder disability on his ability to obtain and maintain substantially gainful employment consistent with his prior work experience, level of education and training, etc.

The Veteran is hereby advised that his failure to report for this scheduled examination, without good cause, may have detrimental consequences on this pending claim for a TDIU.  See 38 C.F.R. § 3.655.

3.  Then adjudicate this derivative TDIU claim in light of all additional evidence.  Should this claim not be granted to his satisfaction, send him and his representative another SSOC, but concerning this derivative claim, and give them time to respond to it before returning the file to the Board for further appellate consideration of this derivative claim.

The Veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs