Citation Nr: 1609302 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 08-29 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent prior to January 20, 2012, and in excess of 30 percent from January 20, 2012, for status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints. 2. Entitlement to a separate disability rating prior to September 26, 2015, and a separate rating in excess of 30 percent effective from September 26, 2015, for impairment of the humerus, right shoulder. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU rating). REPRESENTATION Appellant represented by: Veterans of Foreign Wars ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from July 1985 to March 1992, and from October 2003 to August 2004, as well as subsequent periods of service with the Michigan Army National Guard (ANG) until 2008. This matter come before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for a right shoulder disability, and assigned a temporary total rating, effective July 17, 2007, and a noncompensable (0 percent) rating, effective September 1, 2007. In September 2008, the RO granted a 20 percent rating for the service-connected right shoulder disability, effective September 1, 2007. By October 2013 rating decision, the RO granted a 30 percent rating for status-post repeated rotator cuff tear secondary to a tear with calcific tendonitis with osteoarthritic changes of the acromioclavicular and glenohumeral joints (previously rated as a right shoulder disorder) (major dominant), effective January 20, 2012. The Veteran continued his appeal for a higher rating. In October 2014, the Board issued a decision denying a rating in excess of 20 percent from September 1, 2007, to January 19, 2012, and denying a rating greater than 30 percent rating, effective from January 20, 2012, for the service-connected right shoulder disability. In October 2014, the Board also remanded the issues of entitlement to an extraschedular evaluation for the service-connected right shoulder disability and entitlement to a TDIU rating. The Veteran appealed the Board's denial of a higher rating for the service-connected right shoulder disability to the United States Court of Appeals for Veterans Claims (Court). In June 2015, the Court granted the joint motion for remand (JMR), vacating, in part, the October 2014 Board decision, and remanding the case to the Board for action consistent with the JMR. In August 2015, the Board remanded the issue of entitlement to an initial rating in excess of 20 percent prior to January 20, 2012, and a rating in excess of 30 percent effective from January 20, 2012, for the service-connected right shoulder disability (described as status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints); and also remanded the issue of entitlement to a TDIU rating. By October 2015 rating decision, the RO assigned a separate 30 percent rating, for the Veteran's right shoulder disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5202, for impairment of the humerus, right shoulder, effective from September 26, 2015. FINDINGS OF FACT 1. Prior to January 20, 2012, the Veteran's status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints, was manifested by complaints of pain, as well as objective findings of weakness, tenderness, and limitation of motion, with pain, that is compatible with no more than limitation of motion of the dominant arm to midway between the side and shoulder level; motion limited to 25 degrees from the side was not demonstrated. 2. Effective from January 20, 2012, the Veteran's status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints, was manifested by complaints of pain, as well as objective findings of weakness, tenderness, atrophy, and limitation of motion, with pain tenderness; however, there has been no showing of motion limited to 25 degrees from the side even when considering functional impairment on use. 3. Prior to September 26, 2015, the Veteran's right shoulder did not exhibit impairment of the humerus, to include malunion, deformity, or recurrent dislocation; thus, to assign a separate rating prior to this period would constitute pyramiding. 4. Effective from September 26, 2015, the Veteran's right shoulder impairment of the humerus was manifested by no more than recurrent dislocation with frequent episodes, however, there was no showing of nonfibrous union, nonunion, or loss of head (flail shoulder). 5. The preponderance of the competent medical evidence of record suggests that the nature and severity of the Veteran's service-connected disabilities prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to January 20, 2012, the criteria for a 30 percent rating for status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints, but no higher, have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, DC 5201 (2015). 2. Effective from January 20, 2012, the criteria for a rating in excess of 30 percent for status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, DC 5201 (2015). 3. The criteria for a separate disability rating, prior to September 26, 2015, for impairment of the humerus, right shoulder, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.14, 4.71a, DC 5202 (2015). 4. The criteria for a rating in excess of 30 percent, effective from September 26, 2015, for impairment of the humerus, right shoulder, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, DC 5202 (2015). 5. Resolving all reasonable doubt in the Veteran's favor, the criteria for the assignment of a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(3), 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). For the issues decided in the instant document, VA provided adequate notice in a letter sent to the Veteran in July 2007. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. VA has obtained all identified and available service and post-service treatment records. Further, the July 2008, September 2013, and September 2015 VA examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and neither he nor his representative has identified any other evidence which would need to be obtained for a fair disposition of this appeal. No further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) II. Factual Background In June 2007, the Veteran underwent arthroscopy of the right shoulder, subacromial decompression of the right shoulder, removal of multiple loose bodies and open rotator cuff repair. Private physical therapy records, dated in 2007, reveal that range of motion testing in September 2007 and October 2007 included flexion limited to 180 degrees, abduction limited to 170/180 degrees, internal rotation limited to 55 degrees/to the belt line, external rotation limited to 70 degrees, and extension limited to 40 degrees. An October 2007 report reflects the Veteran was four months status-post repair of a rotator cuff tear. He was observed to be doing well post-operatively and had minimal complaints of pain. He had forward flexion to 150 degrees and abduction to 150 degrees. He had minimal complaints of pain, but experienced weakness. In November 2007, he was observed to still have difficulty with overhead reaching. Shoulder flexion was limited to 180 degrees, abduction was limited to 180 degrees, internal rotation was limited to the belt line, external rotation was limited to 70 degrees, and extension was limited to 40 degrees. SSA records reflect findings of severe right shoulder dysfunction and right shoulder motions weak in all planes. There was also limitation to occasional right overhead reaching. The Veteran actively abducted his right shoulder to 110 degrees, adducted to 30 degrees, forward flexed to 120 degrees, and internally and externally rotated to 40 to 45 degrees. Pain limited all of these ranges of motion. A July 2008 Physical Evaluation Board proceeding revealed that the Veteran dislocated his right shoulder in 1994 in a sports injury that required an open procedure leading to a complete functional recovery. He enlisted in the ANG in 2002 without a waiver. In May 2006, he slipped in the shower on a training, exercise, and reinjured the shoulder, and imaging showed a rotator cuff injury. It was noted that he was status-post two arthroscopic repairs in June 2006 and December 2006, and an open surgery in June 2007. He complained of persistent pain and stiffness, which prevented effective duty as a military policeman. Although range of motion was measured in the 120 degree to 140 degree range in April, May, and June 2008, the Veteran testified and demonstrated that his functional limitation due to pain had since declined and was no higher than shoulder level with additional significant limitation of internal rotation. On a VA examination in July 2008, the Veteran complained of a chronic and constant pain in the right shoulder with any type of movement, any type of cold or damp weather, and any attempt to raise anything above his shoulder level. He reported having difficulty with toileting after bowel movements, with lifting even a milk bottle out of the refrigerator, and with performing any type of sporting activity because of his chronic and persistent pain. His right shoulder disability also limited his ability to perform any housework or yard work because of pain in restricted range of motion. It was noted that he was right hand dominant. He denied experiencing any instability in his shoulder, but reported a history of flare-ups with reduced motion. He recently had undergone orthopedic treatment during which he was informed that he might have further surgical repair and was possibly a candidate for shoulder replacement surgery because of his pain and restricted motion. He reported he was unable to continue his employment as a truck driver because of weakness and limitation of the right shoulder. He denied using a brace. Further, in July 2008, on objective examination, the Veteran appeared to be in moderate distress secondary to pain, and was holding his shoulder close to the chest wall. There was significant subacromial tenderness noted, as well as multiple surgical scars; however no atrophy was noted. The examiner indicated that there was significant decreased range of motion with pain at any attempted movement, and that movement was significantly restricted and resisted because of pain, which began with immediate movement at any shoulder direction. Limitation of motion test results included abduction limited to 80 degrees; flexion limited to 68 degrees; extension limited to 20 degrees; external rotation limited to 40 degrees; and internal rotation limited to 90 degrees. All movements were painful and resisted because of the significant pain, and repetitive movement testing was not performed because of the Veteran's significant pain. There was a positive impingement sign and a positive drop sign noted in the right shoulder. Deep tendon reflexes appeared to be normal and symmetric. Additional loss of motion during flare-ups could not be determined since the Veteran did not have a flare-up at the time of the examination. An x-ray study showed post-surgical changes in the area of the bicipital groove. The diagnosis was recurrent right rotator cuff tear with multiple surgeries for repair, and moderate to severe symptoms, with significant limitation of motion and limitation of use. The examiner opined that there was moderate impairment of daily occupational activities due to the right shoulder disability. In a letter dated in August 2008, the Veteran's employer reported that he worked from February 2001 up to May 2006, and that during that time the Veteran moved up the ranks to lead drive. The employer stated that the Veteran was an exemplary employee and that there was "no doubt that [the Veteran] would still be employed with us if he had not injured himself during military training". On a VA examination in May 2009, it was noted that the Veteran was unemployed, and had been unemployed since the accident in May 2006, secondary to both his right shoulder and his low back. The Veteran exhibited the following right shoulder range of motion measurements: flexion to 68 degrees, extension to 20 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. Pain was noted with motion testing and upon palpation. A January 2011 private vocational rehabilitation treatment record revealed that the Veteran's ability to use his right shoulder/arm was severely impaired. He had lost range of motion, including the ability to lift his arm above shoulder level, and experienced chronic pain for which he took prescription narcotic medications. VA treatment records dated in August 2011, showed that the Veteran sought a right shoulder replacement due to severe pain. X-ray studies revealed the glenohumeral joint space was preserved unchanged, and small cystic changes in the humeral head. A concurrent MRI revealed the presence of linear and round abnormal signal intensity areas along the greater tuberosity and lateral aspect of the head of the humerus consistent with postsurgical change. There were also changes consistent with chronic tear with the degenerative tendonitis. It was noted that flexion was limited to 75 degrees, abduction was limited to 75 degrees, internal rotation was not possible due to pain, and external rotation was limited to 40 degrees. On a VA examination in September 2013, it was noted that the Veteran had a history of surgical shoulder repair in June 2006, December 2006, and June 2007. The Veteran denied experiencing any flare-ups that impacted his right shoulder and arm; however, he complained of right shoulder pain that lasted for hours at a time, during which he was unable to use his right arm. Range of motion testing revealed flexion limited to 90 degrees; abduction limited to 90 degrees; internal rotation limited to 90 degrees; and external rotation limited to 40 degrees, with pain on motion. The Veteran was able to perform repetitive-use testing with three repetitions, with additional limitation in motion and functional loss/impairment due to pain and weakness. The examiner observed that the Veteran's flexion and abduction were decreased by 50 percent as part of the repetitive testing, from 90 degrees to 45 degrees. No ankyloses of the glenohumeral articulation was noted. Hawkins' impingement test was positive, as were the empty-can, external rotation infraspinatus strength, crank apprehension and relocation, cross-body adduction, and lift-off subscapularis tests. A history of infrequent, recurrent dislocation of the joint was noted. The Veteran did not have an acromioclavicular joint condition or any other impairment of the clavicle or scapula. The Veteran did not undergo a total joint replacement in the right shoulder. The examiner noted that the Veteran's right shoulder disability impacted his ability to maintain employment, in part due to his inability to lift more than 3 pounds a couple of times a day. In May 2015, the VA Director of Compensation Service issued an advisory opinion, noting that a review of the file had been completed. The VA Director noted that in the October 2014 remand, the Board directed that the right shoulder condition be considered for extraschedular consideration as well as TDIU. The VA Director found that the medical evidence of record did not show any evidence to support an increased evaluation for the right shoulder on a schedular or extra-schedular basis, and that none of the available evidence supported the Veteran's contention that any of his service-connected disabilities or a combination of the effects of the service-connected disabilities prevents employment. The VA director concluded that the totality of the evidence did not show that the Veteran's right shoulder warranted an increased evaluation nor had the service-connected conditions been shown to render him unable to perform gainful employment. The VA director also concluded that entitlement to an extra-schedular TDIU and increase for the right shoulder were not warranted. On a VA DBQ (disability benefits questionnaire) examination dated in September 2015, range of right shoulder motion revealed flexion limited to 80 degrees, abduction limited to 80 degrees, external rotation limited to 50 degrees, and internal rotation was limited to 30 degrees. Pain was noted with motion testing and upon palpation. Limitation of motion and pain were noted to contribute to his functional loss. It was noted that the Veteran was able to perform repetitive use testing, and that there was additional functional loss or range of motion after three repetitions, including pain, fatigue, and weakness. Range of motion, after three repetitions, was limited on flexion to 50 degrees, on abduction to 50 degrees, on external rotation to 30 degrees, and on internal rotation to 0 degrees. It was noted that the Veteran was being examined immediately after repetitive use over time, and that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. With regard to additional contributing factors of disability, it was noted that the Veteran experienced less movement than normal; weakened movement; and atrophy of disuse. There was reduction in muscle strength in the right shoulder, noted as 3/5 on forward flexion and abduction, and muscle atrophy was noted in the right upper extremity. It was noted that an x-ray report showed arthritis in the right shoulder. The examiner opined that the Veteran's right shoulder condition impacted his ability to perform any type of occupational task, noting that the Veteran cannot use the right arm for any activity secondary to dislocation. On a November 2015 VA DBQ examination, the Veteran's diagnoses included bilateral heel spurs, comfortable by using orthotics, no limited activity; multiple right shoulder conditions (noted in the shoulder DBQ); bronchial asthma by Veteran's history, clinically mild bronchitis, PFTs normal in 2010; migraine headaches, stable, relief with cold compresses and occasional need for Excedrin; degenerative disease of the lumbosacral spine, status post laminectomy, no radiculopathy or neuropathy. The examiner opined that the above medical conditions were "at least as likely as not to impact [the] Veteran's ability to obtain and maintain substantially gainful sedentary employment as per the limitations noted on the DBQ examination. III. Higher Disability Ratings The Veteran seeks higher ratings for his service-connected right shoulder disability, which includes status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints, rated as 20 percent disabling prior to January 20, 2012, and 30 percent disabling from January 20, 2012; as well as impairment of the humerus, which has been assigned a separate 30 percent rating, effective from September 26, 2015. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints, has been rated as 20 percent disabling prior to January 20, 2012, and 30 percent disabling from January 20, 2012, under Diagnostic Code (DC) 5201. DC 5201 provides that limitation of motion of the major arm at shoulder level warrants a 20 percent disability rating. Limitation of motion of the major arm midway between the side and shoulder level warrants a 30 percent disability rating. Limitation of motion of the major arm to 25 degrees from the side warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a, DC 5201. Normal ranges of upper extremity motion are defined as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. The Veteran has also been granted, pursuant to DC 5202, a separate 30 percent rating for impairment of the humerus, effective from September 26, 2015. Under 38 C.F.R. § 4.71a, DC 5202, other impairment of the humerus warrants a 20 percent evaluation for malunion with moderate deformity, whether it is the major or minor extremity. When there is malunion with marked deformity, a 30 percent evaluation is warranted, whether it is the major or minor extremity. When there is recurrent dislocation with infrequent episodes, and guarding of movement only at shoulder level, a 20 percent evaluation is warranted whether it is the major or minor extremity. When there is recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements, a 30 percent evaluation is warranted for the major joint. When there is nonfibrous union, a 50 percent evaluation is warranted for the major joint. When there is nonunion (false flail joint), a 60 percent evaluation is warranted for the major joint. When there is loss of head (flail shoulder), an 80 percent evaluation is warranted for the major joint. 1. Prior to January 20, 2012 In order for a rating in excess of 20 percent to be assigned prior to January 20, 2012, the competent evidence of record would need to show or approximate right shoulder range of motion limited to between the side and shoulder level. Review of the competent evidence prior to January 20, 2012, has shown that the Veteran's right shoulder disability, while exhibiting varying levels of pain and limitation of motion, throughout the appeal period, has shown no ankylosis, or limitation to 25 degrees from the side. However, the Veteran has experienced functional impairment including ongoing pain that restricts his arm movements, tenderness, and pain on motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995). Thus, giving the Veteran the benefit of the doubt, the Board finds that his limitation of motion, together with pain, tenderness, and weakness, on functional use, more nearly approximates right arm motion limited to midway between the side and shoulder level, thereby warranting entitlement to a 30 percent rating under DC 5201. 38 C.F.R. §§ 4.40, 4.45. An even higher rating for pain would not be warranted because prior to January 20, 2012, there was no additional uncompensated functional loss or limitation of right arm motion that can provide a basis for an even higher rating based on pain, nor was there any showing of ankylosis (DC 5200); or nonfibrous union (DC 5202). DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In view of the foregoing, the Board concludes that prior to January 20, 2012, the evidence as a whole, with application of the benefit-of-the-doubt rule, supports an increase to a 30 percent rating, but no higher, for the service-connected status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). 2. Effective from January 20, 2012 The Board finds that from January 20, 2012, the competent evidence of record shows that the Veteran's status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints was manifested by at most flexion and abduction limited to 80 degrees. Moreover, during the pertinent time period, his right shoulder disability was not been productive of motion limited to 25 degrees from the side even when considering functional impairment on use; or, ankylosis of scapulohumeral articulation; or, fibrous union of the humerus; or, impairment of the clavicle or scapula. Additionally, even considering the Veteran's complaints of pain, and objective evidence of limitation of motion due to pain, weakness, tenderness, and atrophy, and corresponding functional impairment, his right shoulder disability has been appropriately rated at 30 percent. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, supra. At no point during the applicable period has the Veteran's range of right shoulder motion been limited to 25 degrees from side or approximated such impairment, nor does the record contain evidence of ankyloses; fibrous union, nonunion, or loss of head of the humerus; or impairment of the clavicle or scapula, which could entitle the Veteran to a higher disability rating. Neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher rating. In view of the foregoing, the Board concludes that the preponderance of the evidence is against a rating in excess of 30 percent, from January 20, 2012, for the service-connected status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Separate Rating for Impairment of Humerus In the aforementioned JMR, the parties agreed a remand was necessary for the Board to provide an adequate discussion of whether a separate evaluation is in order for a history of recurrent right shoulder dislocations associated with the Veteran's right shoulder disability under 38 C.F.R. § 4.71a, DC 5202. In August 2015, the Board remanded this matter. Thereafter, by October 2015 rating decision, the RO granted service connection and assigned a separate 30 percent rating, pursuant to 38 C.F.R. § 4.71a, DC 5202, for impairment of the humerus, right shoulder, effective from September 26, 2015, essentially based on the medical opinion (provided on the VA DBQ examination) that the Veteran cannot use the right arm for any activity secondary to dislocation. Based on review of the record, for the period prior to September 26, 2015, the Board finds that a separate rating is not warranted for a recurrent right shoulder dislocations, as such were not shown by the competent evidence of record - to include the medical treatment records and VA examinations. While the competent medical evidence of record prior to September 26, 2015, showed that the Veteran's right shoulder motion was limited by pain, there was no report or finding of any current dislocations. One examination report noted a history of dislocations, but did not report any current problem with recurrent dislocations. While the Veteran's shoulder presented complaints of guarding his movement due to pain prior to September 26, 2015, part of the criteria under DC 5202, this limitation of motion has been compensated by way of his 30 percent rating for limitation of motion of the shoulder under DC 5201, and this rating encompasses painful motion. Thus, to assign a separate rating prior to September 26, 2015 would compensate the Veteran twice for the same symptomatology - guarding of movement or painful limitation of motion. In that regard, the evaluation of the same " disability " or the same " manifestations " under various diagnoses - a practice known as "pyramiding - is not allowed. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Accordingly, absent evidence of recurrent dislocations, a separate rating under DC 5202 for the period prior to September 26, 2015, is not warranted. With regard to whether a separate rating in excess of 30 percent is warranted, effective from September 26, 2015, for impairment of the humerus, the Board notes that the competent evidence of record would need to show or approximate nonfibrous union, nonunion (false flail joint), or loss of head (flail shoulder). Review of the record, however, shows no such findings. Accordingly, the preponderance of the competent evidence is against the grant of a rating in excess of 30 percent, effective from September 26, 2015, for impairment of the humerus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 4. Extraschedular Rating The Board notes that the Veteran has specifically requested that extraschedular consideration be given to his service-connected right shoulder disability. Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In the present case, the Veteran has multiple service-connected disabilities, thus, Johnson is applicable. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Further, the Board may not assign an extraschedular rating in the first instance, and, accordingly, in October 2014, the Board remanded the matter for the RO to refer the issue of entitlement to an increased rating for the service-connected right shoulder disability to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture with respect to this disability requires the assignment of an extraschedular rating. Accordingly, in May 2015, the VA Director of Compensation Service found that the medical evidence of record did not show any evidence to support an increased evaluation for the right shoulder an extra-schedular basis, and that none of the available evidence supports the Veteran's contention that any of his service connected disabilities or a combination of the effects of the service-connected disabilities prevents employment. The Board also concludes that the Veteran's service-connected right shoulder disability , as discussed above, is manifested by symptomatology contemplated by the rating criteria which have been applied in this case. The Veteran has not reported any symptoms outside of those contemplated by the rating schedule. No other factors have been reported that are outside the rating schedule. Accordingly, in view of the foregoing, assignment of an extraschedular rating for the Veteran's service-connected right shoulder disability or based on the combined effect of his multiple service-connected disabilities is not warranted. IV. Entitlement to a TDIU Rating A TDIU rating 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Review of the record shows that the Veteran in this case does not meet the schedular requirements of 38 C.F.R. § 4.16(a). In that regard, the record reflects that the Veteran has been service connected for migraine headaches, rated as 30 percent disabling, effective from November 4, 2009; status-post repeated rotator cuff tear secondary to a tear with calcific tendonitis with osteoarthritic changes of the acromioclavicular joint and glenohumeral joint, rated as 30 percent disabling, effective from January 20, 2012; impairment of the humerus, right shoulder, rated as 30 percent disabling, effective from September 26, 2015; degenerative disc disease, lumbar spine, rated as 20 percent disabling, effective from March 31, 2009; bronchial asthma, rated as 10 percent disabling, effective from December 15, 2005; tinnitus, rated as 10 percent disabling, effective from June 1, 2007; status post injury to right thumb, rated as 10 percent disabling, effective from January 20, 2012; as well as bilateral heel spurs, bilateral hearing loss, and painful scarring of shoulder, all of which are rated as 0 percent disabling. The combined rating (exclusive of the grant herein) was 50 percent, effective from March 31, 2009; 60 percent, effective from November 4, 2009; 70 percent, effective from January 20, 2012; and 80 percent, effective from September 26, 2015. Review of the record shows that in May 2015, the VA Director of Compensation Service issued an advisory opinion that none of the available evidence supported the Veteran's contention that any of his service connected disabilities or a combination of the effects of the service-connected disabilities prevents employment. The VA director concluded that the totality of the evidence did not show that his service-connected conditions rendered him unable to perform gainful employment. The VA director concluded that entitlement to an extra-schedular TDIU was not warranted. Also of record, VA examiners have opined (in September 2015) that the Veteran's right shoulder condition impacted his ability to perform any type of occupational task, noting that he cannot use the right arm for any activity secondary to dislocation, and (in November 2015) that the Veteran's service-connected medical conditions were at least as likely as not to impact his ability to obtain and maintain substantially gainful sedentary employment. After having carefully reviewed the record, the Board finds that there is competent evidence weighing both in support of and against the claim. Thus, the evidence is in equipoise with respect to whether the Veteran's service-connected disabilities alone preclude him from obtaining and retaining substantially gainful employment, and in resolving all doubt in the Veteran's behalf, entitlement to a TDIU has been established and his appeal is granted. 38 C.F.R. § 4.16. (CONTINUED ON NEXT PAGE) ORDER A 30 percent rating, but no higher, prior to January 20, 2012, for status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints, is granted, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 30 percent, from January 20, 2012, for status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints, is denied. A separate disability rating, prior to September 26, 2015, for impairment of the humerus, right shoulder, is denied. A rating in excess of 30 percent, effective from September 26, 2015, for impairment of the humerus, right shoulder, is denied. Entitlement to a TDIU rating is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs