Citation Nr: 1319020 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-01 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for a recurrent right shoulder dislocation with postoperative residuals of a capsulorrhaphy and degenerative changes, currently evaluated as 40 percent disabling. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, denying the Veteran's claim for a TDIU. The Board remanded that matter to the RO via the VA's Appeals Management Center (AMC) in June 2010 for additional evidentiary and procedural development and following the AMC's completion of the actions sought that matter has been returned to the Board for further review. In addition, the record reflects that the Veteran in April 2010 initiated a claim for increase for his service-connected right shoulder disorder and that claim was denied by RO action in July 2010. A timely appeal was then initiated and later perfected, leading to its certification for appellate review. The foregoing actions place that claim for increase within the Board's appellate jurisdiction for review at this time. Notice is taken that the Veteran has not requested a hearing before the RO or the Board as to either issue on appeal. While this case remained in remand status, the Veteran did seek an RO hearing as to an unrelated matter involving an overpayment of his VA compensation, but since that matter is not within the Board's jurisdiction, it is not herein further addressed. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right shoulder disability was assigned the maximum schedular evaluation of 40 percent under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5201. 2. There is no showing of ankylosis, loss of head of the humerus, nonunion of the humerus, or fibrous union of the humerus as to warrant the assignment of a schedular evaluation in excess of 40 percent under any alternate DC during the period in question. 3. The schedular criteria are adequate for the evaluation of the Veteran's right shoulder disability and the schedular rating assigned therefor adequately compensates him for the level of right shoulder impairment shown, including that attributable to pain and functional loss. 4. The Veteran's right shoulder disability is his only service-connected disorder; he completed one year of grade school and his past work experience has been as a mechanic, factory worker, and part-time lawn cutter. 5. The Veteran's only service-connected disability does not preclude him from engaging and retaining substantially gainful employment, consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 40 percent for a recurrent right shoulder dislocation (dominant arm) with postoperative residuals of a capsulorrhaphy and degenerative changes, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5010-5201 (2012). 2. The criteria for the assignment of a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Remand Compliance As indicated above, this matter was previously remanded by the Board in June 2010 in order to accomplish certain development, including obtaining VA treatment records, requesting additional information from the Veteran as to treatment providers, and affording him a VA medical examination. On remand, the records in question were obtained and associated with the Veteran's VA claims folder. He was asked to provide further information regarding medical providers, which he did and upon which VA acted and obtained additional, pertinent treatment records. As well, on remand multiple attempts to afford the Veteran a VA examination were made both during the period in which he was incarcerated and thereafter, but in each instance, he either failed to report or called and cancelled his examination appointment. Inasmuch as all of the actions sought by the Board through its prior development request as to the matters herein addressed on their merits now appear to have been completed as directed, and neither the Veteran nor his representative contends otherwise, no further action are found to be necessary. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The notification obligation in this case was accomplished by way of April 2008 and April 2010 letters from the RO to the Veteran, addressing the TDIU and right shoulder claims advanced. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini, supra. Here, full VCAA notice as to the TDIU claim occurred in April 2008 and with respect to the claim for increase for right shoulder disablement in April 2010, prior to the RO's initial adjudicatory action as to each matter, in accord with Pelegrini. In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The record includes the Veteran's service treatment records, in addition to a various medical examination reports compiled during postservice years. Also, the Veteran has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claims herein addressed on their merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that VA has attempted to afford the Veteran multiple VA medical examinations as to the matters herein on appeal. Those examinations were scheduled to occur in September 2010, August 2012, and January 2013, but the Veteran failed to report or, alternatively, called and cancelled his examination appointment. Following the 2012 scheduling attempt, he did submit a statement as to why he failed to report, citing periods of homelessness, unavailability of transportation, and the distance to the examining site. He did not, however, express any willingness on his part to appear if a further examination were scheduled. There are indications that one or two of those examinations attempted were scheduled at a point in time that the Veteran was incarcerated, but that the most recently attempted examination was scheduled to occur when that was not the case. Thus, despite the VA's best efforts to fully develop all pertinent issues, the Veteran has not cooperated and the end result is that the issues on appeal must be adjudicated on the basis of the evidence of record. See also 38 C.F.R. § 3.655(b) (2012); see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence). On that basis, further development action relative to the disabilities in question is not required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. Legal Authority Governing Claims for Increase Disability ratings are intended to compensate impairment in earnings capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes (DCs) identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). In Hart v. Mansfield, 21 Vet. App. 505 (2007), it was held that "staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." In this instance, service connection for a recurrent dislocation of the right shoulder was established by rating action in August 1971 and that is the Veteran's sole service-connected disability. At that time, a 10 percent evaluation was assigned under DC 5203. That rating was increased to 30 percent under DC 5203-5201 by rating action in July 1999 and to 40 percent, effective from June 2007, under DC 5010-5021 by rating action entered in October 2007. An appeal of the October 2007 decision was initiated, but not then perfected within the time limits prescribed by law, thereby rendering that action final as to the evidence then considered. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2012). Received by VA in November 2007 was the Veteran's TDIU claim and in April 2010 his claim for increase for right shoulder disablement was received by VA. On the basis of the foregoing, the issues presented are whether the Veteran is entitled to an increased rating for his service-connected right shoulder disorder and a TDIU based on these claims alone. Analysis Right Shoulder Posttraumatic arthritis is ratable as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis is rated in accordance with 38 C.F.R. § 4.71a, DC 5003, which provides that when arthritis is established by X-ray findings it will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. If limitation of motion of the specific joint involved is not compensable under the appropriate DCs, a 10 percent rating is for application for each such major joint affected by limitation of motion. Under DC 5200, ratings from 30 to 50 percent are assignable for the dominant upper extremity affected by ankylosis of the scapulohumeral joint. 38 C.F.R. § 4.71a, DC 5200. Under DC 5201, a 20 percent evaluation is assigned for limitation of major or minor arm motion at the shoulder level. When there is limitation of motion midway between the side and shoulder level, a 30 percent rating is warranted for limitation of motion of the major arm. The next higher evaluation for major arm limitation of motion, the maximum 40 percent rating, is assigned for limitation of motion of the arm to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. Under DC 5202, for impairment of the humerus in the major arm, a 20 percent rating is assignable when there is malunion, with moderate deformity and where there is marked deformity of the arm, a 30 percent rating is for assignment. Also under DC 5202, for recurrent dislocation of the major arm at the scapulohumeral joint, a 30 percent rating is assignable with infrequent episodes, and guarding of movement only at shoulder level and also, where there are frequent episodes and guarding of all arm movements. Fibrous union of the humerus warrants a 50 percent rating; nonunion (false flail joint) warrants a 60 percent rating; and loss of the head of the humerus (flail shoulder) warrants a 80 percent rating. 38 C.F.R. § 4.71a, DC 5202. Under 38 C.F.R. § 4.71a, DC 5203, for impairment of the clavicle or scapula in the major or minor arm manifested by dislocation, a 20 percent rating is warranted. For nonunion with loose movement, a 10 percent rating is assignable when involving the major arm. Id. For nonunion without loose movement, and for malunion, a 10 percent rating is assignable. Id. When assigning a disability rating for a musculoskeletal disorder it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Under 38 C.F.R. §§ 4.40, 4.45, 4.59, the rating for an orthopedic disorder must reflect functional limitation which is due to pain, as supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Consideration of pain and functional loss is required only with respect to those DCs where the basis for rating is limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Moreover, the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca cannot support a higher rating in this case because the Court has held that there is no basis for a rating higher than the maximum schedular rating for additional limitation of motion due to pain or functional loss under those provisions. See VAOPGCPREC 36-97, 63 Fed. Reg. 31262 (1998); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Here, the Veteran alleges that he is entitled to an increased rating on the basis of constant pain, flare-ups of symptoms with recurrent dislocations, and an inability to raise his right arm above his head. Pertinent medical evidence includes the report of magnetic resonance imaging in March 2010 showing advanced arthritis of the shoulder joint, a partial thickness rotator cuff tear, subarticular cysts of the humeral head, and impingement of the suprasupinatus tendon from acromioclavicular joint osteophytes. Clinical examination at that time revealed clicking and popping with all motion, with active and passive elevation to 90 degrees. Markedly restricted internal and external rotation was in evidence. A cortisone injection into the right shoulder joint was accomplished and, in the opinion of his private examining physician nothing short of a humeral head replacement or total shoulder replacement would be of any significant benefit. The Veteran is, however, already in receipt of the highest available schedular evaluation under DC 5010-5201 on the basis of limitation of motion of his dominant arm. Alternate DCs provide for ratings in excess of 40 percent, but the evidence on file in connection with the claim for increase filed in April 2010 fails to demonstrate the existence of ankylosis or the type of humeral impairment that would warrant a rating in excess of 40 percent under DC 5200 or 5202. The Veteran does not identify by his own lay statements that ankylosis, loss of head of the humerus, nonunion of the humerus, or fibrous union of the humerus is present, such as would warrant the assignment of a rating beyond 40 percent. Moreover, no basis for the assignment of any separate rating for right shoulder disablement is found and the Board specifically notes that any scarring from a prior capsulorrhaphy is not shown by credible and competent evidence to be compensable. See 38 C.F.R. § 4.118 , as in effect prior to and on and after October 23, 2008. A determination of whether the claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is required, and this is a three-step inquiry. First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. To do this, the Board or the RO must determine if the criteria found in the rating schedule reasonably describes the claimant's disability level and symptomatology. If this is the case, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. If the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step--to determine whether, to accord justice, an extraschedular rating must be assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this instance, the Veteran's service-connected right shoulder disorder is fully accounted for under DC 5010-5201, to include his complaints of pain, dislocations, flare-ups, and limitation of motion. There is no indication that there are present signs or symptoms beyond the scope of the applicable rating criteria. There is otherwise no indication in the record that the pertinent DC fails to describe adequately or compensate for the current disability level of the disorder in question, and, as such, the question of extraschedular consideration need not proceed further, as there exists no basis for the assignment of an extraschedular rating. As a preponderance of the evidence is against the Veteran's claim, his claim for a rating in excess of 40 percent for a right shoulder disorder must be denied without application of the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b); see Fenderson, supra; see also, Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); 1990); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term, unemployability, is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word substantially suggests an intent to impart flexibility into a determination of the veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Service connection has been established for a single disability, that of recurrent dislocation of the right shoulder, for which a 40 percent rating has been in effect since June 2007. On that basis, the schedular requirements of 38 C.F.R. § 4.16(a) are not met and the question thus presented by this appeal is whether the Veteran in connection with his TDIU claim of November 2007 is shown to have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disability, warranting an extraschedular evaluation of total disablement under 38 C.F.R. § 4.16(b). Information now of record is to the effect that the Veteran has a first grade education and prior work experience as a mechanic, factory worker, and part-time grass cutter. In his most recent formal TDIU application, the Veteran reported having last worked on a full-time basis in December 1996, although he indicated that he continued to work part-time mowing lawns during the summer. The record further indicates that the Veteran was found to be entitled to disability benefits from the Social Security Administration (SSA) from September 2007 on the basis of a spine disorder, arthritis affecting multiple areas including the right shoulder, and a right shoulder disability. A VA examination involving the Veteran's right shoulder was undertaken, albeit without the benefit of the Veteran's VA claims folder, in July 2007 in connection with a prior claim for an increased rating. At that time, the Veteran reported being unable to lift anything overhead and having difficulties dressing, particularly with shoes and socks, and with the opening of jars and bottles. Clinical findings yielded diagnoses of a right posterior shoulder separation and degenerative arthritis of the right shoulder. No opinion as to employability or notation of work-related limitations was furnished. Various attempts to re-examine the Veteran in connection with the TDIU claim herein at issue were unsuccessful due to the Veteran's unavailability based on his incarceration or because he failed to report on/at the scheduled date and time. The fact that the Veteran's service-connected disability has been evaluated as 40 percent disabling throughout the period from June 2007 signifies recognition by VA that there is present resulting disability and a corresponding industrial impairment. See 38 C.F.R. § 4.1 (2012). Such rating, however, is not dispositive of the question of whether his service-connected disability precludes the Veteran from securing and following a substantially gainful occupation during the period in question. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). The Veteran alleges that he is unemployable solely on the basis of his service-connected right shoulder disorder, noting in particular that his right shoulder goes into spasm when he attempts to work. Those allegations are unsupported by any other lay or medical evidence relating to the appeal period herein at issue. Certainly, the Veteran is competent to describe what he observes in terms of the symptoms and manifestations of his right shoulder disorder and the resulting limitations and while his statements are not incredible, no lay evidence is presented from any other individual, nor is there any medical evidence, denoting unemployability due exclusively to his right shoulder disablement. The SSA determined that the Veteran was totally disabled as of 2007 on the basis of various disorders, inclusive of right shoulder disability but also nonservice-connected back and arthritic disorders of joints other than the right shoulder, and, as such, the SSA's determination is not persuasive as to the Veteran's TDIU entitlement. No medical professional provides any finding or opinion indicating that the Veteran's right shoulder disorder renders him unemployable. On balance, the evidence contraindicating entitlement outweighs the evidence supporting entitlement, and to that end, denial of the Veteran's TDIU claim is required. 38 U.S.C.A. § 5107; see, Ortiz, Gilbert, supra. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 40 percent for a recurrent right shoulder dislocation with postoperative residuals of a capsulorrhaphy and degenerative changes is denied. A TDIU is denied. ____________________________________________ ROBERT. E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs