Citation Nr: 1341111 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 09-43 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for left shoulder tendinitis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from January 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claims on appeal were previously remanded by the Board in March 2013 for additional development. A portion of the Veteran's records are contained in the Virtual VA system. Any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's left shoulder tendonitis is not manifested by motion limited to 25 degrees from the side, fibrous union of the humerus, or ankylosis of the scapulohumeral articulation. 2. The Veteran's service-connected disabilities do not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left shoulder tendonitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5201 (2013). 2. The criteria for the assignment of a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(a)(3), 4.16(b), 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a January 2008 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's VA records, private treatment records, and Social Security Administration (SSA) records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; record the relevant findings for rating the Veteran's left shoulder disability; and provide an opinion regarding the impact of his service-connected disabilities on his employability. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). II. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered when determining the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided in DeLuca must be followed in adjudicating claims, such as this case, where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment). The Veteran is currently assigned a 20 percent rating under Diagnostic Code 5024-5201. 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. The evidence reflects that the Veteran's left shoulder is his non-dominant extremity, and therefore it is rated as a "minor" extremity under the rating schedule. Shoulder disabilities are rated under Diagnostic Codes 5200 through 5203. 38 C.F.R. § 4.71a. In this case, a rating in excess of 20 percent is not warranted. Diagnostic Code 5200 addresses ankylosis of the scapulohumeral articulation. In a June 2008 statement, the Veteran indicated that his shoulder was "frozen". However, the other evidence in this case reflects no findings of ankylosis. VA examinations from April 2008, December 2010 and September 2013 specifically noted that no ankylosis was present. Therefore, a rating under Diagnostic Code 5200 is not warranted. Diagnostic Code 5201 addresses limitation of motion of the arm. A higher 30 percent rating is warranted when motion is limited to 25 degrees from the side. However, an April 2008 VA examination noted flexion of 60 degrees and abduction of 45 degrees. Although pain was noted during testing, there was no additional limitation of motion following repetitive testing. Private records from May 2008 noted flexion of 90 degrees. Abduction was "more limited," but a specific measurement was not given. In a January 2009 statement, the Veteran reported that he was unable to lift his arm more than 45 degrees without severe pain. A December 2010 VA examination noted flexion of 100 degrees and abduction of 50 degrees. Notably, repetitive testing could not be completed due to pain. However, a September 2013 VA examination revealed flexion of 65 degrees and abduction of 60 degrees, even when accounting for painful motion and repetitive testing. These findings are not consistent with a higher 30 percent rating. Ratings in excess of 20 percent are also available under Diagnostic Code 5202, which governs impairment of the humerus. Those ratings require fibrous union, nonunion, or loss of the head of the humerus. However, no such findings have been documented during the Veteran's VA examinations or otherwise demonstrated during the appeal period. Finally, the Veteran's condition has also been rated under Diagnostic Code 5024 (tenosynovitis), which indicates the condition can also be rated as degenerative arthritis under Diagnostic Code 5003. However, the rating criteria under Diagnostic Code 5003 do not allow for a rating higher than the assigned 20 percent. In adjudicating a claim the Board must assess the competence and credibility of the Veteran and other witnesses. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran and his wife are competent to give evidence about what they observe or experience; for example, they are competent to report that he experiences certain symptoms such as pain and limited motion. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran and his wife to be credible in their reports of the symptoms he experiences. However, as with the medical evidence of record, these accounts of his symptomatology describe ratings consistent with the assigned ratings. The Veteran reported that he could not lift his arm above 45 degrees, and he and his wife reported that he experienced recurring dislocations of the shoulder. However, these findings are expressly contemplated within the assigned 20 percent rating. In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected condition in considering if the Veteran is entitled to an extraschedular rating. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left shoulder disability with the established criteria found in the rating schedule for those disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Veteran's limited motion and subjective reports of recurrent dislocations are specifically contemplated by the rating schedule. Higher ratings are also available for additional impairment and manifestations that are not demonstrated by the evidence. There is no indication that the Veteran's condition results in any symptoms that fall so far outside the rating schedule as to render it inadequate. Even if the Board were to find that step one of Thun had been satisfied, extraschedular referral would still not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc). The Veteran's left shoulder disability does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1). The Veteran has not been hospitalized for this condition. As to employment, the Veteran has not been employed during the appeal period and has a separate TDIU claim to be adjudicated below. However, the record does not otherwise reflect that his left shoulder disability results in any occupational impairment above and beyond that which is already contemplated in the assigned 20 percent rating. Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. III. TDIU A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more or (2) two or more disabilities where there is (a) at least one disability is ratable at 40 percent or more and (b) sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology or from a single accident are considered one disability. Id. In addition, disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, are considered one disability under this section. Id. In this case, the Veteran had a 100 percent rating from October 15, 2008 through November 30, 2009 for his right knee disability. Therefore, the assignment of a TDIU is not applicable to this period. A 30 percent total rating was in effect prior to October 15, 2008, and a 70 percent rating is in effect from December 1, 2009. The Veteran is service-connected for left shoulder and right knee conditions. 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). So even if the Veteran does not meet the threshold minimum percentage standards in § 4.16(a), extra-schedular consideration is to be given. Id.; see also 38 C.F.R. § 3.321(b)(1). For a veteran to prevail on a total rating claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran reported working as a diesel mechanic for approximately 10 years. In a December 2008 statement, he reported that he had worked on heavy equipment, such as cars, tractors, and bulldozers, for his entire life. He submitted a log which shows that he worked over 70 hours a week until the middle of October 2005, when he stopped work and received worker's compensation. A May 2008 letter from the Veteran's private physician suggested that the worker's compensation injury was related to the left shoulder. The Veteran has not offered any specific information regarding his educational background. An April 2008 VA examination noted "significant" effects on the Veteran's usual occupation from his service-connected knee and shoulder conditions, including decreased mobility, problems with lifting and carrying, and pain. A December 2009 VA examination also noted weakness, lack of stamina, and decreased lower extremity strength. A December 2010 examination noted decreased manual dexterity and decreased upper extremity strength. In a December 2008 statement, the Veteran reported that he could no longer do his job as a diesel mechanic due to an inability to lift anything or stand up very long. VA examinations from September 2013 noted that the Veteran's right knee would impact his ability to stand for long periods or walk distances. His left shoulder condition would impact lifting and reaching. However, neither condition would significantly impact his ability to perform sedentary occupations, such as bookkeeping, office clerical work, or teaching. The examiner further stated that he had complete use of his right upper extremity for any seated activities and was able to follow complex instructions. His limitations were walking for no more than 15 minutes, standing for no more than 10 minutes, or sitting for no more than 30 minutes. He would require a break or change in position after 20 to 30 minutes of activity. A follow-up clarification stated that the Veteran's service-connected disabilities had a negative impact on his ability to perform ambulatory and significant upper extremity activities, but did not have a significant impact on sedentary activities. It was more than likely that his disabilities, together, did not prevent sedentary or office employment either before or after October 15, 2008. A TDIU is not warranted during the period on appeal. The evidence in this case reflects significant physical impairment resulting from the Veteran's service-connected left shoulder and right knee disabilities, and it is clear that this impairment would prevent him from working in his previous capacity as a diesel mechanic. However, neither the Veteran's statements nor the findings from the various VA examinations indicate that he would be precluded from sedentary occupations, and the September 2013 VA opinion and clarification stated that the Veteran was capable of sedentary or office employment with some accommodations. While there is little evidence regarding the Veteran's educational background, the VA examiner also stated that the Veteran was capable of following complex instructions. As noted above, the question is whether the Veteran is capable of performing the physical and mental acts required for employment. The overall weight of the evidence indicates that the Veteran is capable of sedentary employment. Although his disabilities result in significant physical limitations, these are already considered under his assigned ratings. In particular, the 70 percent combined rating in effect from December 1, 2009 contemplates a substantial level of occupational impairment. What has not been demonstrated is that the Veteran's service-connected disabilities, alone, preclude him from finding and maintaining substantially gainful employment. Therefore, a TDIU is not warranted. ORDER A rating in excess of 20 percent for left shoulder tendonitis is denied. A TDIU is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs