Citation Nr: 1324235 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-06 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to August 28, 2008 for residuals of a left shoulder rotator cuff tear with bicipital tendonitis. 2. Entitlement to a rating in excess of 20 percent from February 1, 2009 for residuals of a left shoulder rotator cuff tear with bicipital tendonitis. 3. Entitlement to a rating in excess of 10 percent prior to July 21, 2009 for residuals of a right shoulder rotator cuff tear with osteoarthritis and impingement syndrome. 4. Entitlement to a rating in excess of 30 percent from October 1, 2009 for residuals of a right shoulder rotator cuff tear with osteoarthritis and impingement syndrome. 5. Entitlement to total disability based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1973 to September 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which continued separate 10 percent ratings for each shoulder disorder. In September 2008, the RO denied a claim for a total disability rating based on individual unemployability. In a November 2008 rating decision the RO assigned a temporary 100 percent rating (for convalescence following surgery) for the Veteran's left shoulder effective August 28, 2008, and restored the 10 percent effective December 1, 2008. In a July 2009 rating decision, the RO continued the temporary 100 percent rating for the left shoulder for an additional month and restored the 10 percent rating effective January 1, 2009. In a September 2009 rating decision, the RO assigned a temporary 100 percent rating for the right shoulder effective July 21, 2009 and provided one additional month of the temporary 100 percent rating for the left shoulder. The right shoulder was assigned a 30 percent rating effective October 1, 2009. The left shoulder was assigned a 20 percent evaluation percent effective February 1, 2009. The Veteran appeared and testified at a personal hearing in May 2011 before the undersigned Veterans Law Judge sitting in Waco, Texas. A transcript of the hearing is contained in the record. These matters were before the Board in November 2011, at which time they were remanded for additional development. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected conditions is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is right handed. 2. For the period prior to June 3, 2008, the Veteran's left shoulder disability was not manifested by left arm motion limited to the shoulder level. 3. Beginning June 3, 2008, the Veteran's left shoulder disability was manifested by motion limited to the shoulder level, but not by left arm motion limited to 25 degrees from his side. 4. Beginning February 1, 2009, the Veteran's left shoulder disability was not manifested by left arm motion limited to 25 degrees from his side. 5. For the period prior to June 3, 2008, the Veteran's right shoulder disability was not manifested by right arm motion limited to the shoulder level. 6. Beginning June 3, 2008, the Veteran's right shoulder disability was manifested by motion limited to the shoulder level, but not by motion limited midway between his side and shoulder level. 7. Beginning October 1, 2009, the Veteran's right shoulder disability was not manifested by arm motion limited to 25 degrees from his side. CONCLUSIONS OF LAW 1. For the period prior to June 3, 2008, the criteria for a rating in excess of 10 percent for residuals of a left shoulder rotator cuff tear with bicipital tendonitis were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2012). 2. For the period beginning June 3, 2008, the criteria for a 20 percent rating for residuals of a left shoulder rotator cuff tear with bicipital tendonitis were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 3. For the period beginning February 1, 2009, the criteria for a rating in excess of 20 percent for residuals of a left shoulder rotator cuff tear with bicipital tendonitis were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 4. For the period prior to June 3, 2008, the criteria for a rating in excess of 10 percent for residuals of a right shoulder rotator cuff tear with bicipital tendonitis were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 5. For the period beginning June 3, 2008 the criteria for a 20 percent rating for residuals of a right shoulder rotator cuff tear with osteoarthritis and an impingement syndrome were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 6. For the period beginning October 1, 2009 the criteria for a rating in excess of 30 percent for residuals of a right shoulder rotator cuff tear with osteoarthritis and an impingement syndrome were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. VA's Duties to Notify and Assist In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in January 2008 of the information and evidence needed to substantiate and complete his claims, notice of what part of that evidence was to be provided by him, notice of what part VA would attempt to obtain, and notice how disability ratings and effective dates are assigned. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The VA examination reports of record, including those ordered by the November 2011 remand, contain sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and are adequate for purposes of this appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a May 2011 Travel Board hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his increased rating claim and the Veteran, through his testimony and her representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). B. Disability Ratings Disability ratings are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where an increase in the disability rating is at issue, the present level of a veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Presently, the Veteran's shoulder disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, which addresses limitation of motion of the shoulder. There is no evidence that he has impairment of the scapula or clavicle, and thus Diagnostic Code 5203, which addresses disabilities of the clavicle or scapula, is not applicable. 38 C.F.R. § 4.71a. Pursuant to Diagnostic Code 5201, a 20 percent rating applies for limitation of motion of the arm at shoulder level, or limitation of motion of the non-dominant arm midway between the side and shoulder level. A 30 percent rating applies for limitation of motion of the dominant arm midway between the side and shoulder level or limitation of motion of the non-dominant arm to 25 degrees from the side. A 40 percent rating applies to limitation of motion of the dominant arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The law provides that even if a veteran has limitation of shoulder motion in separate planes (i.e., abduction and flexion), he is limited to only a single disability rating for each shoulder that is disabled. Yonek v. Shinseki, ___ F.3d ___, No. 2012-7120, 2013 WL 3368972 at *2 (Fed. Cir. July 8, 2013). Prior to this decision, the Veteran's right shoulder has been rated at 10 percent for the period prior to July 21, 2009, and 30 percent for the period beginning October 1, 2009. The left shoulder has been rated 10 percent for the period prior to August 28, 2008, and 20 percent beginning February 1, 2009. The Veteran's wife indicated in a July 2007 statement that the appellant's shoulder disorders affected his sleep and his ability to perform work around the house. The Veteran underwent VA examination for his shoulders in February 2008. He indicated that he was right-handed, and that his shoulders were painful, stiff, and weak. He denied episodes of dislocation or subluxation, but reported that the joints locked daily. Although he had flare-ups every two to three weeks they did not impact his range of motion or cause other functional impairments. Physical examination showed that the Veteran had forward flexion of the right shoulder to 170 degrees, with pain at 120 degrees; abduction to 170 degrees, with pain at 120 degrees; and external and internal rotation to 90 degrees, with pain at 90 degrees. He had forward flexion of the left shoulder to 165 degrees, with pain beginning at 100 degrees; abduction to 165 degrees, with pain beginning at 100 degrees; external rotation (per a March 2008 addendum) to 90 degrees; and internal rotation to 90 degrees. There was no additional loss of motion on repetitive use. There was no loss of a bone or part of a bone. The shoulders did not suffer recurrent dislocations, and there was no ankylosis. The examiner diagnosed bilateral shoulder bicipital tendonitis. In April 2008, the Veteran received treatment for bilateral shoulder pain. His pain prevented sleep, and was paired with joint stiffness bilaterally. Upon examination, there were no clicking sensations or catching in the shoulders, and the shoulders were not "out of place." In June 2008, the Veteran sought treatment for sharp left shoulder pain, more pronounced when he lay down. His range of motion was limited due to pain. The Veteran had flexion of the shoulders to 90 degrees bilaterally, and abduction to 90 degrees on the right, and 80 degrees on the left with pain. In August 2008, prior to undergoing rotator cuff surgery for the left shoulder, the Veteran demonstrated left shoulder flexion to 80 degrees, abduction to 70 degrees, and internal and external rotation to 45 degrees. In January 2009, while still in receipt of a temporary total rating, he underwent a reevaluation of the left shoulder. He reported continuing limitations of motion. Left shoulder external and internal rotation were to 90 degrees, flexion was to 160 degrees, and abduction was to 90 degrees with the scapula isolated (and to 140 degrees without scapula isolation 0-140. Right shoulder motion study revealed flexion and abduction to 180 degrees, and internal and external rotation to 90 degrees. At a July 2009 hearing at the RO, the Veteran testified that his motion was very limited, and when he did move his shoulders, they were painful. The right shoulder, which had not yet undergone surgery, was more painful than his left shoulder. In July 2009, he had surgery to repair his right rotator cuff. At a September 2009 VA examination the appellant reported bilateral shoulder pain, weakness, stiffness, tenderness, instability, and lack of endurance. Reportedly pain increased multiple times per day, but could be eased with medication. Flare-ups did not result in an additional limitation of motion or functional impairment. Physical examination revealed forward right shoulder flexion to 60 degrees, and left shoulder flexion to 90 degrees. Abduction on the right was to 70 degrees, and to 90 degrees on the left. He had external shoulder rotation of 40 degrees on the right, and to 60 degrees on the left. Internal shoulder rotation was to 90 degrees bilaterally. There was no change in motion upon repeated and resisted testing of the shoulders, but the Veteran did report pain at the end of the ranges of motion. In October 2009, he underwent a postoperative checkup. He denied any improvement in pain levels from his most recent visit, but his range of motion had increased. His had right shoulder flexion to 85 degrees, abduction to 85 degrees, and external rotation to 30 degrees. In November 2009 the Veteran indicated that both shoulders continued to hurt, that sitting at a computer after a short while caused stiffness and pain, and that driving hurt. His range of motion was limited. Testing of the right shoulder revealed 60 degrees of flexion, 60 degrees of abduction, 45 degrees of external rotation with arm at side, 45 degrees of external rotation with arm abducted, and that he could reach the L5 vertebrae with internal rotation. The left shoulder had 90 degrees of flexion, 70 degrees of abduction, 70 degrees of external rotation with arm at side, 45 degrees of external rotation with arm abducted, and allowed him to reach the L1 vertebrate with internal rotation. In May 2010, the Veteran reported a five day history of right shoulder pain. Reportedly, this pain felt different from that related to his rotator cuff tear. The examiner diagnosed joint stiffness and prescribed medication for spasms. In February 2011, the Veteran underwent a disability examination as part of his claim for Social Security disability benefits. Physical examination showed a "markedly limited" range of motion in the shoulders. The right shoulder showed 60 degrees of flexion and abduction, with pain at the end of the range, and guarding present. External rotation on the right was to 60 degrees, and internal rotation was to 90 degrees. The left shoulder showed forward flexion to 90 degrees, and abduction to 45 degrees, with marked pain and guarding present on each measurement. There was internal rotation to 60 degrees, and external rotation to 45 degrees. Notably, the Veteran had his undershirt cut open in the front and pinned with safety pins to make it easier to get his shirt on and off, and wore button down shirts regularly. At his May 2011 Board hearing, the Veteran reported constant shoulder pain, but he denied flare-ups. He demonstrated during the hearing that he could lift his left shoulder to the midway point between the shoulder level and the side of his body. He testified that he did not work due to his shoulder pain In October 2011, the Veteran reported pain along his upper back and shoulders. Examination revealed a significant muscle spasm. The Veteran underwent VA examination for his shoulders in April 2012. The examiner confirmed that the Veteran is right-handed. He described constant pain in his shoulders, cracking and grinding with movement, limited movement, and difficulty reaching for things higher than shoulder level. He claimed that he was let go from his most recent job as a heavy equipment operator because he could not do anything physical. He denied flare-ups of his shoulder disabilities. On physical examination, the Veteran showed shoulder flexion to 65 degrees bilaterally, with pain beginning at that point. Bilateral shoulder abduction was to 60 degrees, with pain at 60 degrees. Those measurements remained constant following repetitive motion testing, but the examiner noted that the Veteran did have some bilateral functional loss following repetitive motion, including less movement than normal, weakened movement, and pain on movement. Examination demonstrated localized shoulder tenderness/pain bilaterally, as well as guarding of both shoulders. There was no glenohumeral articulation ankylosis. The examiner noted no history of mechanical symptoms (clicking, catching, etc.) of the shoulders, and no history of recurrent dislocation of the shoulders. The Veteran did not have an acromioclavicular joint condition or any other impairment of the clavicle or scapula, but the acromioclavicular joint was tender to palpitation. 1. Left Shoulder, Prior to August 28, 2008 As the Veteran's left shoulder is currently rated 10 percent disabling prior to August 28, 2008, he would have to demonstrate a limitation of shoulder motion to shoulder level or less. Prior to June 3, 2008, the evidence preponderates against finding this degree of limitation. As such, his disability did not warrant a 20 percent rating prior to August 28, 2008. The only evidence of record prior to that time demonstrating his range of motion is from a February 2008 examination. At that time, both abduction and forward flexion of the left shoulder were limited to 100 degrees, after considering when pain began. See Deluca, 8 Vet. App. at 206. Repetitive use did not cause additional loss. Id. In June 2008, examination revealed that shoulder motion had objectively worsened. Abduction was limited to 80 degrees on the left, and flexion was limited to 90 degrees. There were no indications of when pain began for the range of motion. Thus, it is evident that the Veteran's left shoulder warrants a 20 percent rating beginning June 3, 2008. The left arm is his minor extremity, and a 20 percent rating is warranted when motion is limited to the shoulder level, or limited to midway between the side and shoulder level. There is no evidence to suggest, however, that his left shoulder motion was limited to 25 degrees or less from his side at any time prior to his shoulder surgery. 38 C.F.R. § 4.71a, Diagnostic Code 5201. 2. Left Shoulder, Beginning February 1, 2009 The evidence demonstrates that the Veteran's left shoulder disability has not at any time since February 1, 2009 been manifested a limitation of motion to 25 degrees or less from his side. Thus, entitlement to a 30 percent rating is not warranted. Id. In September 2009, he had left forward flexion to 90 degrees, and abduction to 90 degrees, with pain at the end of his range of motion. Two months later, in November 2009, his forward flexion of the shoulder was unchanged, but his abduction was limited to 70 degrees. The Veteran demonstrated the most severe limitation of motion at his February 2011 disability examination, where, although his forward flexion remained at 90 degrees, his left shoulder abduction was limited to 45 degrees - i.e., midway between his side and shoulder level. As of April 2012, he had forward flexion to 45 degrees, and abduction to 60 degrees. The Board acknowledges that the Veteran has consistent painful motion, but at no point does the evidence show that pain limits left shoulder motion to 25 degrees or less in either forward flexion or abduction. The evidence most nearly approximates a showing of limitation of motion between the level of midway from his side and shoulder level, to the shoulder level itself. As such, no more than a 20 percent rating is warranted. Id. 3. Right Shoulder, Prior to July 21, 2009 As the Veteran's right shoulder (his dominant arm) was rated at 10 percent prior to July 21, 2009, he would have to demonstrate limitation of motion to the shoulder level (i.e., 90 degrees), for a 20 percent rating. Id. As with the left shoulder, at the time of the Veteran's increased rating claim, there is no evidence that his shoulder disability warranted a higher rating. The first examination VA provided, occurring in February 2008, showed that the Veteran had forward flexion and abduction to 120 degrees, after considering the onset of pain. See Deluca, 8 Vet. App. at 206. Flare-ups did not decrease motion, and there was no additional loss of motion on repetitive use. Id. In June 2008, the evidence first shows a right shoulder motion limited to the shoulder level. At the time of his June 3, 2009 treatment, both forward flexion and abduction of the right shoulders were limited to 90 degrees, with pain. Thus, the evidence shows that as of June 3, 2009, the appellant met the criteria for a 20 percent rating, in that he had limitation of right shoulder motion to shoulder level. 38 C.F.R. § 4.71a, Diagnostic Code 5201. There is no evidence prior to the Veteran's July 21, 2009 temporary total rating that demonstrates a limitation of right shoulder motion to a point midway between the side and shoulder. Thus, entitlement to a 30 percent rating is not warranted during that timeframe. Id. 4. Right Shoulder, Beginning October 1, 2009 As the Veteran is rated at 30 percent disabled for his right shoulder beginning October 1, 2009, he would have to demonstrate limitation of motion to 25 degrees from his side to warrant a higher, 40 percent rating. Id. The evidence does not demonstrate that the Veteran has ever been limited to that degree. In October 2009, right shoulder flexion and abduction were to 85 degrees. In November 2009, his right shoulder was more limited, with 60 degrees of flexion and abduction. Those measurements were unchanged in February 2011; at the time of the February 2011 disability examination, the examiner noted marked pain and guarding at the end of the Veteran's 60 degrees of flexion and abduction. Most recently, in April 2012, the Veteran had forward right shoulder flexion to 65 degrees, with pain at that point, and abduction to 60 degrees, with pain at 60 degrees. The Veteran has competently and credibly testified concerning his painful motion. Even considering that testimony, however, there is no evidence that the Veteran's range of right shoulder motion is limited to 25 degrees from his side. Id.; see also Deluca, 8 Vet. App. at 206. Therefore, a higher, 40 percent rating for the right shoulder, for the period beginning October 1, 2009, is not warranted. 5. Extraschedular Considerations The Board considered whether the Veteran's shoulder disabilities, at any time during the appellate term presented an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case the evidence does not show any exceptional or unusual factors with regard to the Veteran's shoulder disabilities. In a March 2013 statement, the Veteran argued that the rating schedule did not adequately address his disability, as his shoulder weakness and the resulting inability to do things such as starting a lawnmower, rake leaves, or play sports were not considered. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Were the Veteran's shoulder disorders more disabling, each shoulder could warrant a higher rating under the applicable schedule. Other than his shoulder surgeries, for which the Veteran has been assigned temporary total ratings, there is no suggestion that the Veteran has required periods of hospitalization. The Board acknowledges that the Veteran lost his job as a sanitation truck driver in April 2008 as a result of his shoulder disabilities. Despite that fact, it is evident, as discussed in the remand section below, that the Veteran previously worked in positions for which his shoulder disability would not present a significant challenge. Although the Veteran arguably has difficulty pursuing work that specifically put physical stress on his shoulders, his disability is not demonstrated to have caused significant interference with other forms of employment. Further, to the extent that the Veteran's disabilities have interfered with his employment, the issue of entitlement to a total disability rating based on individual unemployability is being remanded for further development and consideration. Finally, under the DeLuca doctrine weakness is to be considered. As noted above, however, there is no evidence that any weakness in either shoulder so limits the appellant's range of shoulder motion that ratings higher than those assigned are warranted. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. ORDER Entitlement to a rating in excess of 10 percent prior to June 3, 2008 for residuals of a left shoulder rotator cuff tear and bicipital tendonitis is denied. Entitlement to a rating of 20 percent, and no higher, from June 3, 2008 through August 27, 2008, for residuals of a left shoulder rotator cuff tear with bicipital tendonitis, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 20 percent from February 1, 2009 for residuals of a left shoulder rotator cuff tear and bicipital tendonitis is denied. Entitlement to a rating in excess of 10 percent prior to June 3, 2008 for residuals of a right shoulder rotator cuff tear with osteoarthritis and impingement syndrome is denied. Entitlement to a rating of 20 percent, and no higher, from June 3, 2008 through July 20, 2009, for residuals of a right shoulder rotator cuff tear with osteoarthritis and impingement syndrome, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 30 percent from October 1, 2009 for residuals of a right shoulder rotator cuff tear with osteoarthritis and impingement syndrome is denied. REMAND The Veteran seeks entitlement to a total disability evaluation based on individual unemployability due to service connected disorders on the basis of his service connected disabilities. Prior to March 25, 2008, the Veteran was rated at 10 percent disabled for each shoulder, for a total rating of 20 percent; although he had other service connected disabilities at that time, including right foot hallux valgus, bilateral hearing loss, tonsillectomy residuals, and submandibular cyst/lymph node excision residuals, those disabilities were not rated as compensable. The Veteran became service connected for bilateral knee disabilities effective March 25, 2008, each rated at 10 percent disabling. Applying the bilateral factor found at 38 C.F.R. § 4.26, the Veteran's disability rating increased to 40 percent at that time. Beginning June 3, 2008, the Veteran's ratings for each shoulder, as discussed in this decision, increased to 20 percent. Thus, his combined rating increased, including the bilateral factor, to a 50 percent rating. He was in receipt of a temporary total rating for convalescence from August 28, 2008 until January 31, 2009. Beginning February 1, 2009, his pre-temporary total combined rating of 50 percent rating resumed, and was in place until July 21, 2009, at which time he was granted a second temporary total rating for convalescence. As of October 1, 2009, the Veteran's combined rating, including the bilateral factor, increased to a 60 percent degree of disability. The Veteran was granted entitlement to service connection for tinnitus effective March 13, 2012; as of that date, his combined rating increased to 70 percent. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such 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). Thus, it is evident that the Veteran met the schedular criteria for a total disability rating based on individual unemployability as of March 13, 2012, when his combined rating increased to 70 percent; at that time, his shoulders, considered together, had a combined disability rating of 50 percent. Id. It is the established policy of VA, however, 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. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a). 38 C.F.R. § 4.16(b). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Entitlement to a total compensation rating must be based solely on the impact of a Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful work. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The question in a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is whether a veteran is capable of performing the physical and mental acts required by employment and not whether a veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran indicated on his July 2008 formal claim of entitlement to a total disability rating for compensation purposes that he worked from August 1994 to April 2004 as a loan counselor for Sallie Mae. Thereafter, he worked as a bus driver, and as a commercial equipment operator. He asserts that he became too disabled to work as of April 2008. A statement from the City of Killeen, his last employer, indicated that he was let go as a commercial equipment operator in April 2008 because he was physically unable to perform the duties of the position. An April 2012 examiner opined, after a thorough examination, that the shoulder disabilities did not impact the Veteran's ability to work. After considering the service-connected disabilities, including his shoulder disabilities, the examiner opined that the appellant could function in an occupational environment; specifically in a sedentary-type job. The examiner found the Veteran's physical limitations to include no lifting over 20 pounds; no repetitive lifting of items weighing between 10 and 20 pounds; no overhead lifting; no climbing ladders, operating a forklift, or machinery; no repetitive back bending tasks; no prolonged standing or walking (i.e., combined standing or walking limited to 15 minutes combined per hour); and no prolonged keyboard work (i.e., no more than 30 minutes per hour). In September 2012, VA provided the Veteran a new examination to determine his employability. The Veteran reported that he was let go from his position as a heavy equipment operator in April 2008 due to the fact that he was on pain mediation. The examiner opined that the Veteran was employable, in spite of his disabilities, with certain limitations. The Veteran could not lift items weighing more than 15 pounds, or perform repetitive lifting of objects weighing from 5-15 pounds; climb ladders; operate a forklift or other machinery; perform tasks requiring repetitive bending; stand or walk for more than 20 minutes total per hour; perform prolonged keyboard work (more than 30 minutes per hour); or lift items above shoulder level. That examiner specifically excluded consideration of the Veteran's knee disabilities, which were at that time not service-connected. The examiner opined, however, that the non-service-connected knee conditions "may" further affect his ability to stand and walk. The examiner's conditional statement regarding the knees is troubling, as the Veteran is, per the examiner's opinion, limited to 20 minutes of standing/walking per hour, and 30 minutes of keyboard work (i.e., accounting for 50 minutes of each hour). Although the examiner may hold the opinion that the Veteran can remain seated and work on non-keyboard functions for the time not yet accounted for, such a finding by the Board would require speculation. Considering the two opinions addressing employability that are of record, the extent of the impact of the Veteran's service-connected knee disabilities on his total disability picture remains unclear. Hence, there is no adequate opinion addressing whether the combination of all of the Veteran's service-connected disabilities alone prevent him from securing and obtaining substantially gainful employment. To ensure that the record before the examiners and VA is complete, the RO/AMC should obtain ongoing medical records from both VA and non-VA sources, as appropriate. 38 U.S.C.A. § 5103A(c). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all treatment that he has received for his claimed knee and bilateral shoulder disorders. All identified treatment not already of record should be obtained. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Return the claims file to the examiner who performed the September 2012 examination, and request that the examiner provide an addendum opinion. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the appellant's service connected right shoulder, left shoulder, right knee, left knee, hearing loss, tinnitus, and right foot disabilities; residuals of a tonsillectomy; submandibular cyst/lymph node excision residuals; and scars alone preclude all forms of substantially gainful employment that are consistent with his education and occupational experience. The examiner must indicate when the Veteran's service-connected disabilities precluded him from obtaining and maintaining such gainful employment. The appellant's age may not be considered. A complete and well reasoned rationale must be provided for any opinion offered. If any opinion requested cannot be provided without resort to speculation, the examiner must explain why such an opinion would be speculative. Only if the examiner is unable to provide the requested opinion without a new examination should the RO/AMC should schedule such an examination. 3. After the development requested has been completed, the RO/AMC must review the addendum to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 4. If the examiner is of the opinion that the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment during any period of time for which he did not meet the schedular requirements of 38 C.F.R. § 4.16(a), the RO/AMC must refer the matter to the Director of Compensation and Pension for extraschedular consideration. 5. Upon completion of the above requested development and any additional development deemed appropriate, readjudicate the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. All applicable laws, regulations, and theories of entitlement must be considered. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs