Citation Nr: 1324569	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  10-02 466	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an increased rating for a left shoulder disability, currently evaluated as 20 percent disabling.

2.  Entitlement to an increased rating for a right shoulder disability, rated as 20 percent disabling prior to January 13, 2009, and as 30 percent disabling since September 1, 2009.  

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services




WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

R. Erdheim, Counsel


INTRODUCTION

The Veteran had active military service from July 1984 to July 1988.

This matter comes before the Board of Veterans' Appeals (Board) from November 2007 (bilateral shoulder disability) and September 2010 (TDIU) rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Decatur, Georgia.  The Veteran was granted a temporary total disability rating based upon convalescence for right shoulder surgery from January 13, 2009, to September 1, 2009.  The Board remanded the claims in February 2013.


FINDINGS OF FACT

1.  Prior to January 13, 2009, the Veteran's right shoulder disability was manifested by pain, stiffness, infrequent episodes of dislocation, and limitation of motion of the arm to above midway between the side and shoulder level. 

2.  From September 1, 2009, to January 13, 2010, the Veteran was within one year of receiving a prosthetic replacement of the right shoulder joint.

3.  Since January 13, 2010, the Veteran's right shoulder disability has been manifested by a right shoulder prosthesis with chronic residuals consisting of severe, painful motion and weakness.

4.  Throughout the pendency of the appeal, the Veteran's left shoulder disability has been manifested by pain, stiffness, dislocations and limitation of motion of the arm to above 25 degrees from the side.  

5.  Since the Veteran's January 13, 2009, right shoulder hemiarthroplasty, he has been unable to secure gainful employment. 


CONCLUSIONS OF LAW

1.  For the period prior to January 13, 2009, the criteria for a higher 20 percent for a right shoulder disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5201, 5202, 5203 (2012).

2.  For the period from September 1, 2009, to January 13, 2010, the criteria for a higher 100 percent for a right shoulder disability, status post hemiarthroplasty, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5051 (2012).

3.  Since January 13, 2010, the criteria for a higher 60 percent for a right shoulder disability, status post hemiarthroplasty, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5051 (2012).

4.  Throughout the pendency of the appeal, the criteria for a higher 20 percent for a left shoulder disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5201, 5202, 5203 (2012).

5.  The criteria for a TDIU have been met.  38 U.S.C.A. §§ 1155 , 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. 

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. 

In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA.  With regard to the claims for increased rating, a March 2007 letter, sent prior to the initial unfavorable AOJ decision issued in November 2007, advised the Veteran of the evidence and information necessary to substantiate his claims as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, he was informed of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.

Relevant to the duty to assist, the Veteran's service treatment records and VA, private, and Social Security Administration records have been obtained and considered.  The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal.  The Board has also reviewed the Veteran's paperless Virtual VA claims file. 

The Veteran was provided with VA examinations in October 2007, November 2009, April 2010, and March 2013.  In reviewing the examinations, the Board finds that they, as a whole, adequately addressed the criteria necessary to adjudicate the claims.  The Board notes that the Veteran's claims were remanded in February 2013 in order to afford him with a new VA examination and obtain records from the Social Security Administration.  As such directives have been substantially complied with, as discussed in the preceding paragraphs, no further action is necessary in this regard. 

The Veteran was also provided with a hearing related to his present claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, the VLJ explained the issues on appeal, and elicited testimony to substantiate the increased rating and TDIU claims.  The Veteran volunteered his treatment history and current, thus fully describing the nature and severity of his shoulder disabilities and ability to work.  Accordingly, the Veteran is not shown to be prejudiced.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. 

II.  Analysis

Increased Rating

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that 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.  38 C.F.R. § 4.40 (2012). 

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups.  However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion.  38 C.F.R. §§ 4.14, 4.40, 4.45 (2012); Johnson  v. Brown, 9 Vet. App. 7 (1996). 

The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just.  38 C.F.R. § 4.6 (2012).  It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2012). 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2012). 

With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations.  For the purpose of rating disability from arthritis, the knee, shoulder, and ankle are considered major joints.  38 C.F.R. § 4.45 (2012).

Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint.  When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010.  The criteria for the evaluation of traumatic arthritis direct that the evaluation be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, DC 5003, 5010 (2012).  When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating.  The above ratings are to be combined, not added under DC 5003.  38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1 (2012). 

The Veteran's right and left shoulder disabilities are rated under Diagnostic Codes 5399-5201.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2012). DC 5399 refers to an unlisted disability in the rating schedule pertaining to muscle disabilities.  Diagnostic Code 5201 pertains to limitation of motion of the shoulder.  The rating criteria provide different ratings for the minor arm and the major arm.  The Veteran has indicated (in various treatment records and on VA examination) that he is right-handed; therefore, the Board will apply the ratings and criteria for the major arm and minor arm accordingly.  38 C.F.R. § 4.69 (2012). 

In considering the applicability of other diagnostic codes, the Board finds that DC 5202, which pertains to recurrent dislocations of the scapulohumeral joint, applies.  However, the Veteran has not been shown to have ankylosis of scapulohumeral articulation.  Specifically, VA examinations and the treatment records do not show the presence of ankylosis.  Accordingly, the criteria pertaining to ankylosis is not applicable.  38 C.F.R. § 4.71a, Diagnostic Codes 5200 (2012). 

Under Diagnostic Code 5201, for the major arm, a 20 percent rating is warranted for limitation of arm motion to shoulder level; a 30 percent rating is warranted for limitation of arm motion to midway between the side and shoulder level; and a maximum 40 percent rating is warranted for limitation of arm motion to 25 degrees from the side.  For the minor arm, a 20 percent rating is warranted for limitation of arm motion to shoulder level; a 20 percent rating is warranted for limitation of arm motion to midway between the side and shoulder level; and a maximum 30 percent rating is warranted for limitation of arm motion to 25 degrees from the side.  38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). 

Under Diagnostic Code 5202, for the major arm, a 20 percent rating is warranted for other impairment of the humerus, recurrent dislocation of at scapulohumeral joint, with infrequent episodes of dislocation and guarding of movement only at shoulder level.  A 30 percent rating is assigned for recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements.  A 50 percent rating is warranted for fibrous union of the humerus.  A 60 percent rating is warranted for nonunion (false flail joint) of the humerus.  An 80 percent rating is warranted for loss of the head of the humerus (flail shoulder).  For the minor arm, a 20 percent rating is warranted for other impairment of the humerus, recurrent dislocation of at scapulohumeral joint, with infrequent episodes of dislocation and guarding of movement only at shoulder level.  A 20 percent rating is assigned for recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements.  A 40 percent rating is warranted for fibrous union of the humerus.  A 50 percent rating is warranted for nonunion (false flail joint) of the humerus.  An 70 percent rating is warranted for loss of the head of the humerus (flail shoulder).  38 C.F.R. Part 4, Diagnostic Code 5202 (2012).  This diagnostic code also contemplated malunion of the humerus, however, such a condition has not been evidenced in this case and thus a higher rating is not warranted under those codes.

Under Diagnostic Code 5203, for the major and minor arm, malunion of the clavicle or scapula warrants a 10 percent rating, nonunion of the clavicle or scapula without loose movement warrants a 10 percent rating, with loose movement a 20 percent rating, and where there is dislocation of the clavicle or scapula, a 20 percent rating is warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5203 (2012). 

Finally, under Diagnostic Code 5051, prosthetic replacement of the major shoulder joint warrants a 100 percent rating for one year following implantation of the prosthesis.  A 60 percent rating is warranted with chronic residuals consisting of severe, painful motion or weakness in the affected extremity.  With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5200 and 5203, with the provision that the minimum rating to be assigned is 30 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5051 (2012).

Normal forward flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees.  38 C.F.R. § 4.71a, Plate I (2012).  Forward flexion and abduction to 90 degrees amounts to shoulder level. 
Turning to the evidence of record, VA treatment records reflect that in December 2006, there was mild pain on abduction and external rotation of both shoulders.  In March 2006, the Veteran reported having daily moderate shoulder pain.  He was status post bilateral shoulder surgery in 1986.  On physical examination, there was a painful arc throughout abduction.  Lateral abduction was to 90 degrees, complete abduction was to 130 degrees.  He was able to finger touch each shoulder with the opposite hand.  He was only able to touch his lumbar region with each hand and no higher.  Rotation was mildly painful but was able to be performed.  There was mild muscle wasting on the left.  There was obvious weakness in the shoulders.  He was to start physical and occupational therapy.  In February 2007, a CTscan had shown calcifications in both shoulder joints consistent with osteochondral calcified loose bodies.  He denied shoulder dislocations.  In the past few years, he had decreased range of motion of the shoulder with diffuse aches and pains.  There was diffuse bilateral shoulder pain with very mild peri-shoulder muscle atrophy.  His abduction was to about 80 degrees bilaterally, flexion was to about 80 degrees bilaterally, and extension was to about 30 degrees bilaterally.  He could clap at the top of the head and in the back of the hips but with some difficulty.  

On October 2007 VA examination, the Veteran reported constant stiffness and aching pain in his shoulders.  He took pain medication twice per day which made him sleepy.  He denied any other symptoms.  He had an increase in pain with overhead reaching and sleeping on his shoulders.  He was able to drive.  He was able to complete activities of daily living.  He worked as a custodian for the VA and he denied any effect on his ability to perform his job duties.  Physical examination revealed no apparent deformities on inspection.  There was no tenderness to palpation or crepitation.  There was no obvious joint instability.  For the right shoulder, range of motion showed forward flexion to 180 degrees, with pain at endpoint, abduction to 157 out of 180 with pain at endpoint, internal rotation to 78 out of 90 degrees with pain from 70 to 78 degrees, and external rotation was 90 out of 90 degrees with pain on endpoint.  Repetitive testing did not increase the pain, weakness, instability, or incoordination.  There was 5/5 muscle strength.  There was no muscle spasms.  For the left shoulder, range of motion showed forward flexion to 180 degrees, with pain at endpoint, abduction to 164 out of 180 with pain from 158 to 164 degrees, internal rotation to 84 out of 90 degrees with pain at endpoint, and external rotation was 86 out of 90 degrees with pain on endpoint.  Repetitive testing did not increase the pain, weakness, instability, or incoordination.  There was 5/5 muscle strength.  There was no muscle spasms.  

VA treatment records reflect that in July 2008, the Veteran reported losing strength in the shoulders which was worse when mopping, sweeping, or when completing work.  He denied numbness or paresthesias.  Range of motion on the right was within functional limits, on the left, he had 90 degrees of abduction and flexion, and extension to 30 degrees.  Motor strength was 5/5, with giveaway weakness noted in the shoulders.  Sensation was intact.  

In January 2009, the Veteran underwent a right shoulder replacement.  On follow-up two weeks later, his right shoulder was stable.  In July 2009, the Veteran still had decreased range of motion in the right upper extremity, with active motion 40 degrees and than 70 degrees after the session.  His muscle strength increased from 2/5 to 3/5.

On November 2009 VA examination, the Veteran reported moderate to severe shoulder pain, with weakness and stiffness.  He denied swelling, heat, or redness.  He reported instability and giving way.  His shoulder had "locked" in place in the past.  He reported fatigability and lack of endurance with repetitive motion activities.  He would have flare-ups mostly in the right arm that lasted one to two hours until the pain medication would wear off.  He reported additional limitation of motion when raising his arm over shoulder level.  He reported shoulder dislocations in the past but none for a while.  He denied limitations in his ability to tend to daily activities.  He had pain when turning the steering wheel but could drive.  He could not complete repetitive motion activities.  He was currently on disability and could not go back to work as a housekeeping aid.  On physical examination, there was an 11 centimeter hypopigmented scar that was one centimeter wide on the right shoulder.  It was nontender and nonadherent to underlying tissue.  There was no instability, inflammation, or keloid formation.  There was no induration or inflexibility of the skin.  Peripheral pulses were 2+ in bother upper extremities.  There was no muscle atrophy.  Muscle strength as 5/5, bilaterally.  The right shoulder showed tenderness at the joint.  Range of motion showed forward flexion to 80 degrees with pain throughout and abduction to 45 degrees with pain throughout.  Due to pain and the Veteran's inability to move through the range of motion, internal and external rotation were not records.  However, the measurements were approximately 20 degrees of internal rotation and 0 degrees of external rotation.  He had intense pain past those degrees.  Repetitive motion did cause intense additional pain, but there was no change in range of motion.  There was weakness, instability, or incoordination.  There were no muscle spasms.  The left shoulder showed tenderness at the joint.  Range of motion testing showed forward flexion to 90 degrees with pain throughout, abduction to 75 degrees with pain throughout, external rotation to 75 degrees with pain throughout, and internal rotation to 45 degrees, with pain throughout.  Repetitive motion testing caused intense additional pain but did not change range of motion or cause fatigability.  There was weakness, instability, or incoordination.  There were no muscle spasms.  

In November 2009, the Veteran was assessed to determine whether he could continue in his employment as a housekeeping aid.  He was found to be unemployable in that position.  He reported that he at first was able to complete all of the job duties, but then started having trouble with shoulder pain in 2008 and would go home sore in the evening.  He had returned to work in September 2009 because he ran out of leave.  Physical examination showed obvious deformities of the shoulders.  There were healed surgical scars on both shoulders.  There was no muscle wasting.  Range of motion of the left and right arms was very limited.  He could not perform range of motion due to pain and limited mobility.  Muscles strength was 4/5 in the upper extremities.  

On April 2010 VA examination, the Veteran reported daily shoulder pain brought on by any activity, including raising his arms, lifting anything, or picking anything up.  He could not drive a car far and had trouble sleeping due to pain.  He denied any subluxations or dislocations.  Physical examination revealed that the right shoulder had a four centimeter scar, a six centimeter scar, and a seven centimeter scar.  There was noticeable atrophy of the muscles of the right shoulder.  He had one eight centimeter scar on the left shoulder.  There was tenderness to palpation of the shoulders joints.  Range of motion testing of the right shoulder showed forward flexion to 65 degrees, extension to 20 degrees, abduction to 30 degrees, internal rotation to 15 degrees, and external rotation to 50 degrees.  Range of motion testing of the left shoulder showed flexion to 85 degrees, extension to 10 degrees, abduction to 80 degrees, internal rotation to 25 degrees, and external rotation to 80 degrees.  After three repetitions of each shoulder, there was noticeable increase in pain until he was able to get to the original degrees of motion, with no obvious fatigability, lack of endurance or incoordination.  There was no instability of the shoulders.  In an addendum opinion, the examiner stated that in light of the fact that the Veteran had left his job in housekeeping because he was unfit for duty and his reports that he could not sleep on his shoulders and his trouble lifting his arms, the Veteran was employable but only in very sedentary type of work such as desk work.  He was not employable for physical work or physical labor as he could not complete repetitive tasks.  

A September 2010 private functional assessment stated that the Veteran had been out of work for 20 months.  When completing testing while standing, completing such tasks as assembly/disassembly and keyboard functions, he fatigued after 16 minutes, complaining of bilateral shoulder pain, overall tiredness, and low back pain.  He also demonstrated a shakiness/tremor that progressively increased in the upper extremities.  It was recommended that he seek evaluation for his tremor.  

On a May 2011 disability evaluation, it was noted that the Veteran had a history of recurrent dislocations of both shoulders for many years.  He felt that his right shoulder stiffness was worse since his surgery.  He had similar symptoms in his left shoulder.  Examination of both shoulders showed marked stiffness and limitation of abduction and rotation of both shoulders.  Flexion was normal.  There were no sensory or motor defects.  Abduction of the right shoulder was to 80 degrees on active testing and to 90 degrees on passive testing, abduction of the left shoulder was to 90 degrees on both active and passive testing.  Forward flexion was normal.  

At his November 2012 hearing before the Board, the Veteran stated that he had no strength in his shoulders and could not lift anything due to pain and weakness.  He could not push anything.  His left arm was worse than his right because he was using it more since his right shoulder surgery.  He could lift his arms not quite half way up from his sides.   He stated that his shoulder dislocated once or twice per month.  

On March 2013 VA examination, the Veteran reported that his left shoulder would give out and that his right shoulder was worse since he had surgery.  Range of motion of the right shoulder showed flexion to 90 degrees with pain at the endpoint and abduction to 90 degrees with pain at the endpoint.  Range of motion of the left shoulder showed flexion to 90 degrees, with pain at the endpoint, and abduction to 90 degrees with pain at the endpoint.  On repetitive testing, there was no change in the ranges of motion.  There was evidence of functional loss in that the Veteran had less movement than normal, bilaterally, weakness on the right side, excess fatigability bilaterally, incoordination, bilaterally, pain on movement, bilaterally, and atrophy of disuse on the right side.  There was localized tenderness of the shoulders.  There was guarding, bilaterally.  Muscle strength was 4/5 on the right and 5/5 on the left side.  Hawkins' Impingement Test was positive on the left side.  There was a history of recurrent dislocations on the left that were infrequent.  Due to his total shoulder replacement on the right, he had chronic residuals consisting of severe painful motion and weakness.  His scars were not considered to be painful or unstable.  There Veteran's shoulder disabilities were concluded to not impact his ability to work.  

With regard to the right shoulder, the Board finds that because the Veteran has undergone a total shoulder replacement, he is entitled to evaluation under DC 5051, pertaining to shoulder replacement, prosthesis.  Under that code, he is entitled to a 100 percent rating for one year following the surgery, and thus is entitled to extend his current 100 percent rating, which he received for convalescence following surgery, from September 1, 2009, to January 13, 2010.  Since then, he meets the criteria for a 60 percent rating, as the 2013 VA examiner found that his right shoulder disability was manifested by chronic residuals consisting of pain and weakness.  There is no higher rating applicable to this period of time.  

For the period prior to January 13, 2009, however, the Board finds that a rating higher than 20 percent is not warranted for the right shoulder disability.  Because, prior to that date, although the Veteran did experience pain and weakness of the right shoulder and on repetitive testing, on October 2007 VA examination he was able to flex his arm to 180 degrees, full flexion.  Such was also shown in March 2006, when he was able to raise his arm to shoulder level.  Although there was indication in 2007, just prior to the VA examination, that he was limited to 80 degrees flexion, such was not the case on VA examination.  The Board finds that the VA examination is more probative evidence because it involved precise measurement with the use of a goniometer and it is unclear how the February 2007 measurement was taken.  The finding on VA examination is also consistent with the other evidence of record indicating greater flexion of the shoulder joint.  Therefore, a higher rating based upon limitation of motion is not warranted.  Nor is a higher rating warranted based upon dislocations, as the Veteran denied dislocations or anything more than infrequent dislocations of the shoulder.  Thus, a rating higher than 20 percent is not warranted.  

With regard to the left shoulder, the same is true.  The Board recognizes that the Veteran suffers from pain, stiffness, dislocations, and limitation of motion of the left shoulder, however, the rating schedule does not provide for a higher rating.  The totality of the evidence demonstrates that the Veteran was able to consistently raise his left arm more than 25 degrees from the side, the requirement for a higher rating for the minor extremity.  The 2013 VA examiner found only infrequent dislocations of the left shoulder, and such comports with the record, including the Veteran's self-report.  There are no other rating codes under the criteria pertaining to the shoulder and arm that would warrant a higher rating for the left shoulder.

Although there were times throughout the pendency of the appeal when the Veteran could not complete range of motion exercises, the Board does not find that those instances are reflective of the Veteran's overall disability picture or meet the requirements for staged ratings because they are inconsistent and when he was able to complete testing, his range of motion was much less severe.   

The Board notes that higher ratings are not applicable under DC 5003 and DC 5010 because the Veteran is already in receipt of a 20 percent rating for the left shoulder and higher for the right shoulder, and those ratings are predicated on limitation of motion.  38 C.F.R. § 4.71a , DCs 5003, 5010 (2012).
The Board further finds that higher or separate ratings are not warranted for any muscle symptoms or disabilities.  In that regard, on all VA examinations, the Veteran was found to have normal muscle strength.  To the extent that there have been showings of muscle wasting, such has not been described as impacting the motion of the shoulders.  No such wasting or disability was found by any of the VA examiners.  The extent to which the Veteran suffers from muscular residuals related to the 2009 right shoulder replacement, such symptoms are contemplated in the 60 percent rating which takes into account severe weakness.  

Lastly, the Board finds that separate compensable ratings for scars are not warranted because, although the Veteran has been shown to have three scars on the right shoulder and one on the left shoulder, none have been described as painful, deep, nonlinear, or unstable.  38 C.F.R. § 7800-7804 (2012). 

The Board is required to consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of motion.  38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Board finds that the effect of pain and weakness on the basis of limitation of motion has been considered because although VA examinations and treatment records have shown that the Veteran experiences pain on motion and flare-ups on activity, there is no evidence to suggest that the functional loss is the equivalent to the next higher rating for either the right or left shoulder.  Although there were times throughout the pendency of the appeal when the Veteran could not complete range of motion exercises, the Board does not find that those instances are reflective of the Veteran's overall disability picture or meet the requirements for staged ratings because they are inconsistent and when he was able to complete testing, his range of motion was much less severe.  Evidence of pain is an important factor for consideration.  However, the United States Court of Appeals for Veterans Claims (Court) has held that "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011).  In this case, the Board has considered the Veteran's complaints of pain, as well as all evidence of record related to limitation of motion, weakened motion, excess motion, incoordination, fatigability, and pain on motion, in determining that the preponderance of the evidence is against the Veteran's claim of entitlement to higher ratings based upon additional pain or weakness on repetitive testing.

III.  Other Considerations

An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321  are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or 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."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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.  Id.  

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected right and left shoulder disabilities with the established criteria found in the rating schedule.  As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are rated.  There are no additional symptoms that are not addressed by the rating schedule.  The Veteran's symptoms are manifested by pain, weakness, stiffness, dislocations, and limited range of motion.  The rating criteria takes into account pain, weakness and stiffness because those symptoms limit the Veteran's ability to flex, abduct, rotate, or extend his should joint.  Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disabilities.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Moreover, to the extent that the Veteran's right and left shoulder disabilities may interfere with his employability, such interference is addressed by the schedular rating criteria.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 

The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

TDIU

Total disability will be considered to exist 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 (2012).  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341 (2012).  In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability.  38 C.F.R. § 4.15 (2012). 

By this decision, the Board is granting an increased rating for the right shoulder disability since January 13, 2009.  Thus, the Veteran now meets the scheduler criteria for consideration of entitlement to a TDIU since that time, with a combined disability rating of 70 percent before application of the bilateral factor.  Because his ratings are for two opposite extremities, they can be counted as one disability for the purposes of reaching one 60 percent disabling rating.  38 C.F.R. § 4.16(a) (2012).  The remaining question before the Board, then, is whether he is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities.

In this case, the Board finds that the Veteran meets the criteria for a TDIU because since his January 2009 right shoulder surgery, which is the beginning of when he contends he was no longer employable, he has been unable to resume work in his trained employment, that of housekeeping aid.  The record reflects that prior to gaining that position, he worked in physical labor.  The April 2010 VA examiner stated that he was unable to complete any physical labor due to his shoulder disabilities.  He then worked as a housekeeping aid for 5 years at the VA, a position that the record reflects he received training in and was able to fulfill until his right shoulder surgery.  Following surgery, his employer determined that he was no longer capable of completing the tasks of the position and his employment was terminated.  Thus, despite that the 2013 VA examiner stated that he was employable, the probative evidence supports a finding that he is unemployable when taking into consideration his education, skill level, and previous work experience.  The 2013 VA examiner did not provide any rationale for the opinion reached, thus the Board discounts that opinion.  The remainder of the evidence instead demonstrates that he can no longer complete any physical activities, such as lifting and reaching overhead, and such severe limitation on activity precluded his ability to maintain employment as a housekeeping aid.  Accordingly, in light of the positive evidence of record, including previous opinion provided on VA examination that the Veteran was unable to complete any tasks but light sedentary work for which he is not trained, the Board finds that a TDIU is warranted. 


ORDER

Prior to January 13, 2009, a rating in excess of 20 percent for a right shoulder disability is denied. 

From September 1, 2009, to January 13, 2010, an increased 100 percent rating for a right shoulder disability is granted.

Since January 13, 2010, an increased 60 percent rating for a right shoulder disability is granted.

A rating in excess of 20 percent for a left shoulder disability is denied.

A TDIU is granted.


____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs