Citation Nr: 1611379 Decision Date: 03/21/16 Archive Date: 03/29/16 DOCKET NO. 12-33 384A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for service-connected left shoulder disability, evaluated as 10 percent disabling from June 1, 2010, and as 20 percent disabling from May 27, 2011. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from October 1957 to August 1960 and from September 1960 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2013, a videoconference hearing was held before the undersigned Acting Veterans Law Judge (VLJ). In March 2015, the Board remanded the appeal for additional development. It has since returned to the Board. The matter of entitlement to TDIU will be discussed in further detail below. The issue of service connection for a hernia secondary to medications taken for the left shoulder condition has been raised by the record in a February 2012 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. For the period from June 1, 2010 to May 27, 2011, the disability picture associated with the service-connected left shoulder disability more nearly approximates arm motion limited at shoulder level. 2. For the period from May 27, 2011, the Veteran's service-connected left shoulder disability is not manifested by intermediate ankylosis of the scapulohumeral articulation or arm motion limited to 25 degrees from side. CONCLUSIONS OF LAW 1. For the period from June 1, 2010 to May 27, 2011, the criteria for a 20 percent rating, and no more, for the service-connected left shoulder disability are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5200, 5201, 5203 (2015). 2. For the period from May 27, 2011, the criteria for a rating greater than 20 percent for the service-connected left shoulder disability are not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5200, 5201, 5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. By correspondence dated in June 2011, VA notified the Veteran of the information and evidence needed to substantiate a claim for increase, to include notice of the information he was responsible for providing and of the evidence VA would attempt to obtain. The letter also provided notice as to how VA assigns disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, and identified private records. At the videoconference hearing, the Veteran reported that he was retired and receiving benefits from the Social Security Administration. These benefits appear to be based on retirement age and thus, a remand to obtain these records is not required. The Veteran was provided VA examinations in July 2011 and September 2015. The Board acknowledges the most recent examiner indicated he was unable to say without speculation whether pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time. He indicated that such an opinion was not feasible because he was not able to assess the repeated use over a period of time. Notwithstanding, the examiner did note functional impairment following repetitive use testing. The two examinations conducted during the appeal period are collectively adequate and further examination is not needed. The Veteran provided testimony at a videoconference hearing. The actions of the undersigned supplemented the VCAA and complied with any hearing-related duties. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159 (2015). Analysis In February 1978, the RO granted service connection for a left shoulder disorder, characterized as "cicatrix, [post-operative], anterior left shoulder, well healed" and assigned a noncompensable rating from December 1, 1977. The Veteran filed a claim for increase in May 2011. In November 2011, the RO increased the rating to 10 percent effective June 1, 2010. The Veteran disagreed with the decision and perfected this appeal. In December 2015, the RO increased the rating for left shoulder disability (now characterized as chronic left shoulder strain with degenerative joint disease) to 20 percent effective May 27, 2011, resulting in a staged rating during the appeal period. The RO also assigned a separate 10 percent rating for left shoulder scars. The Veteran did not disagree with the rating assigned for the scarring and that issue is not for consideration. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a Veteran's disability, 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. Where an increase in the disability rating is at issue, the present level of a claimant's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40. The Veteran is right-handed and the left upper extremity is the minor extremity. 38 C.F.R. § 4.69 (2015). The Veteran's left shoulder disability was initially rated as analogous to Diagnostic Code 5203. In March 2013, the representative argued that a 20 percent rating was warranted under Diagnostic Codes 5003(arthritis, which is rated as limitation of motion) -5201 (limitation of arm motion). In the March 2015 remand, the Board indicated that the RO should also consider the applicability of Diagnostic Code 5200. The current 20 percent rating was assigned under Diagnostic Codes 5003-5200. Ankylosis of the scapulohumeral articulation (the scapula and humerus move as one piece) of the minor extremity is rated as follows: favorable, abduction to 60 degrees, can reach mouth and head (20 percent); intermediate between favorable and unfavorable (30 percent); and unfavorable with abduction limited to 25 degrees from the side (40 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5200. Limitation of motion of the minor arm is rated as follows: at shoulder level (20 percent); midway between side and shoulder level (20 percent); and to 25 degrees from the side (40 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5201. Impairment of the clavicle or scapula of the minor extremity is rated as follows: malunion of (10 percent); nonunion of without loose movement (10 percent); nonunion of with loose movement (20 percent); and dislocation of (20 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5203. On June 1, 2010, the Veteran was seen by his private physician. At that time, he reported decreased mobility and pain in his left shoulder. He reported that he had not had a lot of problems with the shoulder until recently and went through a course of physical therapy at VA and admitted that mobility had improved. Assessment included left shoulder arthropathy and the physician indicated he would defer management of the problem to VA. In February 2011, the Veteran reported more pain in the left shoulder and progressive worsening of symptoms. Physical examination showed marked crepitance in the left shoulder in all spheres, most pronounced on internal rotation and abduction. He abducted to approximately 90-100 degrees and was somewhat limited due to discomfort. Assessment was advanced degenerative arthritis of the left shoulder and the physician thought fairly clearly that this was related to his previous injury. On VA examination in July 2011, the Veteran reported a severe shoulder separation in 1973 requiring hardware to repair. He denied recurrent shoulder dislocations. The examiner noted there was crepitus, tenderness, pain at rest, instability, weakness, abnormal motion, and guarding of movement. Range of motion of the left shoulder was forward flexion 0 to 100 degrees; abduction 0 to 110 degrees; internal rotation 0 to 60 degrees; and external rotation 0 to 55 degrees. There was objective evidence of pain with active motion on the left side. There was additional limitation after repetitive motion with left flexion limited to 90 degrees, abduction to 100 degrees, internal rotation to 55 degrees, and external rotation to 50 degrees. There was scapulohumeral ankylosis on the left, which was stable, and he was able to reach his mouth and head. The examiner further noted the Veteran had poor carriage due to limited motion and free swing of the left arm. X-rays showed mild degenerative joint disease involving the AC joint and the glenohumeral joint. Status post-surgical change was also noted. Diagnoses were (1) chronic left shoulder strain; and (2) degenerative joint disease of the left shoulder. The examiner noted the disability would impact occupation due to problems with lifting and carrying, difficulty reaching, weakness or fatigue, decreased strength and pain. Effects on the usual daily activities were also noted. In his February 2012 notice of disagreement, the Veteran reported that his left arm sticks out and he looks robotic. At the June 2013 videoconference hearing, he testified that he has pain in his shoulder and it does not swing naturally. It is really tender, with limited motion, and he cannot do any heavy lifting. The Veteran most recently underwent a VA examination in September 2015. He did not report any flare-ups, but did report functional impairment due to decreased ability to perform heavy lifting. Range of motion of the left shoulder was abnormal with flexion from 0 to 90 degrees; abduction 0 to 100 degrees; external rotation 0 to 55 degrees; and internal rotation 0 to 60 degrees. There was pain with all ranges of motion. There was no objective evidence of localized tenderness or pain on palpation. There was objective evidence of crepitus. Range of motion following repetitive use testing was left flexion to 85 degrees; abduction to 95 degrees; external rotation to 50 degrees; and internal rotation to 55 degrees. The examiner stated the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Muscle strength of the left shoulder was 4/5 in flexion and abduction. There was no muscle atrophy. No ankylosis was noted. Review of private medical records shows complaints of increased left shoulder problems in June 2010. The physical examination in February 2011 showed abduction limited to approximately 90 to 100 degrees. Resolving reasonable doubt in the Veteran's favor, the disability picture more nearly approximates arm motion limited at shoulder level and a 20 percent rating is warranted from June 1, 2010. In determining whether the criteria are met for a rating greater than 20 percent at any time during the appeal period, the Board will consider applicable diagnostic codes. The most recent examination did not show ankylosis of the scapulohumeral articulation and the previous examination showed that any ankylosis was favorable. There is simply no evidence of intermediate ankylosis between favorable and unfavorable and a 30 percent rating is not warranted under Diagnostic Code 5200. Examinations of record do not show arm motion limited to 25 degrees from the side and a 30 percent rating is not warranted under Diagnostic Code 5201. In making this determination, the Board has considered the Veteran's reports of pain and other limitations, but does not find adequate pathology to support a higher rating based on functional impairment, to include pain on motion or other factors. There is no evidence of impairment of the humerus and Diagnostic Code 5202 is not for consideration. The Veteran is currently receiving a 20 percent rating and that is the maximum schedular rating available under Diagnostic Code 5203. Finally, the Board has considered whether the Veteran may be entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321 (2015). On review, the referenced diagnostic code contemplates the symptoms related to his left shoulder disability, to include limitation of motion. The Veteran's complaints that his arm sticks out and does not swing naturally are factors considered in determining functional impairment due to pain and other factors. A higher schedular rating is available for greater levels of disability. As the rating criteria are considered adequate, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual condition fails to capture all the service-connected disabilities experienced. In addition to the left shoulder disability, the Veteran is service-connected for left shoulder scarring and a heart disability. The only issue currently for appellate consideration is the evaluation for the orthopedic manifestations of the service-connected left shoulder disability and that is the only disability that the Board has considered in the extraschedular analysis with respect to considering the collective impact of the disabilities. See id. The Board further observes that the Veteran is currently receiving a 100 percent schedular rating for his service-connected disabilities. ORDER For the period from June 1, 2010 to May 27, 2011, a 20 percent rating for service-connected left shoulder disability is granted, subject to the laws and regulations governing the award of monetary benefits. For the period from May 27, 2011, a rating greater than 20 percent for service-connected left shoulder disability is denied. REMAND The Veteran is seeking an increased rating for his left shoulder disability and at the hearing, testified that he retired from his job quicker than he wanted to because of his left shoulder. He further stated that he had to drive his vehicle with his left arm and it just got to be too painful, along with his other disabilities, including his heart. A claim of entitlement to TDIU is "part of," and not separate from, a claim of entitlement to an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board observes that the Veteran was awarded a temporary 100 percent rating from April 5, 2011 to September 1, 2011; and a 100 percent schedular rating from September 23, 2013. It is not, however, categorically true that the assignment of a total schedular rating renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). Under these circumstances, the Board finds a remand is needed to adjudicate entitlement to TDIU as part of the current appeal. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Develop the pending TDIU claim, to include sending appropriate VCAA notice and otherwise developing the claim as indicated. If the appellant does not desire consideration of this issue, he should so indicate in writing. 2. Thereafter, adjudicate the issue of entitlement to TDIU. If the benefit sought on appeal is denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs