Citation Nr: 1625818 Decision Date: 06/28/16 Archive Date: 07/11/16 DOCKET NO. 13-36 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for a left shoulder disability. 2. Entitlement to an evaluation in excess of 30 percent for a right shoulder disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Tittsworth, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from February 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and Nashville, Tennessee, denying an increased evaluation for a bilateral shoulder disability and entitlement to a TDIU. The appeal has been certified to the Board by the RO in Nashville, Tennessee. The Veteran testified before the undersigned at a travel board hearing in February 2016. A transcript of the hearing is of record. The Veteran's claims file has been converted from a paper file to an electronic file managed in the Veterans Benefits Management System (VBMS). There are also records in Virtual VA. The issue of entitlement to an increased evaluation for left and right shoulder disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left and right shoulder disabilities manifested in frequent episodes of dislocation of the scapulohumeral joint with guarding of movement only at the shoulder level throughout the appeal period. 2. Prior to February 23, 2016, the Veteran's left and right shoulder disabilities were manifest by limitation of motion midway between the shoulder and the side 3. From February 23, 2016, the Veteran's left and right shoulder disabilities manifest in limitation of motion of the arm to 25 degrees from the side. 4. The Veteran has not been able to secure or maintain gainful employment due to his left and right shoulders disabilities throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for a separate evaluation of 20 percent for left shoulder scapulohumeral joint dislocation are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2015). 2. The criteria for a separate evaluation of 20 percent for right shoulder scapulohumeral joint dislocation are met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5202. 3. For the period prior to February 23, 2016, the criteria for a rating in excess of 20 percent for a left shoulder disability based on limitation of motion are not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 4. From February 23, 2016, the criteria for a 30 percent evaluation for a left shoulder disability based on limitation of motion are met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 5. For the period prior to February 23, 2016, the criteria for a rating greater than 30 percent for a right shoulder disability based on limitation of motion are not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 6. From February 23, 2016, the criteria for a 40 percent evaluation for a right shoulder disability based on limitation of motion are met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 7. The criteria for a total disability evaluation based upon individual unemployability have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. The Veteran has been provided notice of information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain VA fulfilled its duty to assist the Veteran in obtaining all identified and available evidence needed to substantiate a claim. The Veteran was provided with a VA examination of the shoulders in September 2013. The examination is adequate because it included a review of the Veteran's pertinent medical history and provides a discussion of symptomatology relevant to the issues on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Neither the Veteran nor his representative has alleged any VA examination is inadequate, or that additional examinations are warranted. There is no evidence that additional records have yet to be requested, or that additional medical inquiry is required. Accordingly, the Board finds that the duty to assist has been satisfied. (CONTINUED ON NEXT PAGE) Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by comparing a Veteran's symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left and right shoulders disabilities (which include bilateral shoulder impingement syndrome and AC joint arthrosis) are currently evaluated at 20 and 30 percent disabling, respectively, under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201 due to limitation of motion of both arms midway between the side and shoulder level. Due to evidence of recurrent dislocation of the scapulohumeral joint, the Board will also consider application of DC 5202. Ratings for disabilities of the shoulder vary with the extent of disability and with which arm is affected. A distinction is made between major (dominant) and minor sides, or "handedness." 38 C.F.R. § 4.69. The record reflects that the Veteran is right-handed; thus, his right shoulder is considered the major upper extremity. Pursuant to DC 5201, limitation of the major or minor arm at the shoulder level warrants a 20 rating; limitation of the major arm to midway between the side and shoulder level warrants a 30 percent rating, limitation of the minor arm to midway between the side and shoulder level warrants a 20 percent rating; limitation of motion of the major arm to 25 degrees from the side warrants a 40 percent rating, and limitation of motion of the minor arm to 25 degrees from the side warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5201. Normal range of motion of the shoulder is flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, and internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71a , Plate I. The criteria of DC 5202 provides for a 20 percent rating for infrequent recurrent dislocation at the scapulohumeral joint with guarding of movement only at shoulder level involving the major or minor arm. A 20 percent rating is also warranted for malunion of the humerus with moderate deformity of the major or minor arm. Id. A 20 percent rating is warranted for frequent episodes of recurrent dislocations of the minor arm and guarding of all movements. Id. A higher 30 percent rating is warranted for frequent episodes of recurrent dislocations of the major arm and guarding of all movements. Id. A higher 40 percent rating is warranted for a minor arm with evidence of fibrous union, and a 50 percent rating for evidence of a fibrous union of the major arm. Id. Turning to the evidence, the record reveals the Veteran has received pain management for his bilateral shoulder disabilities throughout the appeal period. He experiences bilateral shoulder pain and recurrent dislocations of his shoulders with instability, pain, and limited range of motion. His treatment includes injections, physical therapy, and various medications including methadone, morphine, Percocet, hydrocodone, and tramadol. See, e.g., September 2011 and January 2015 VA pain management clinic notes. In September 2013, the Veteran was seen for a surgical consult. A VA orthopedic surgeon recorded a history of recurrent instability of both shoulders. He diagnosed longstanding massive bilateral rotator cuff tears with atrophy. He indicated the Veteran was not a good candidate for surgery despite the very little function in both shoulders. He indicated the Veteran cannot get a job due to the limited function of his arms, as well as due to being on pain medication. The Veteran was provided with a VA examination in September 2013. The examiner diagnosed impingement syndrome and AC joint arthritis. The Veteran reported having chronic bilateral shoulder pain. He reported having flare-ups of pain which he described as "a constant pain." Range of motion testing revealed that right shoulder flexion was to 45 degrees with objective evidence of painful motion at 45 degrees; right shoulder abduction was to 55 degrees with objective evidence of painful motion at 55 degrees; left shoulder flexion was to 45 degrees, objective evidence of painful motion at 45 degrees; and left shoulder abduction was to 50 degrees with objective evidence of painful motion at 50 degrees. Left shoulder internal rotation was to 90 degree with pain and external rotation was to 15 degrees with pain, and right shoulder external rotation was to 40 degrees with pain and internal rotation was to 90 degrees with pain. The Veteran was able to perform repetitive-use testing with 3 repetitions, and there was no additional limitation of shoulder motion following the repetitive-use testing. Examination showed he had functional loss and/or functional impairment of the shoulders, including less movement than normal and pain on movement. There was localized tenderness or pain on palpation of both shoulders with guarding. Muscle strength of the shoulders on abduction and forward flexion revealed the Veteran was capable of active movement against gravity. There was a history of mechanical symptoms including frequent episodes of dislocation of the scapulohumeral joint, bilaterally, with guarding of movement only at shoulder level. Left AC joint arthrosis was noted, though there was no tenderness on palpation of the AC joint. It was noted the Veteran did not have joint replacement or arthroscopic surgery. The examiner indicated the Veteran's shoulders/arms impaired his ability to lift or reach overhead. Following the September 2013 VA examination, the record reveals the Veteran continues to receive regular pain management for bilateral shoulder pain, including the use of various opioid medication. During the February 23, 2016 hearing, the Veteran demonstrated that the motion of arms, when measured from either side, is now limited to 25 degrees. See Hearing Transcript P. 9. As noted above, the Veteran's left and right shoulder disabilities are currently evaluated under 38 C.F.R. § 4.71a, DC 5201, pertaining to limitation of motion of the arm. Based on the evidence, an increased evaluation due to limitation of motion is not warranted prior to February 23, 2016 because the objective evidence of record demonstrates the Veteran's arm motions were not limited to 25 degrees from either side prior to this time. The treatment records do not contain specific range of motion testing, and the findings of the September 2013 VA examination specifically revealed arm motions in excess of 25 degrees from either side. Thus, prior to February 23, 2016, the evidence does not support limitation of motion greater than midway between the shoulder and the side for this period, and an increased rating is not warranted. However, beginning February 23, 2016, the Veteran is entitled to a higher evaluation for both the left and right shoulder because the objective evidence during his hearing revealing the motion of his arms is now limited to 25 degrees from either side. Based on this finding, the Veteran is entitled to evaluations of 40 percent and 30 percent for the right and left shoulders, respectively, under DC 5201 as of this date. The evidence demonstrates the Veteran is also entitled to a separate evaluation throughout the entire appeal period for recurrent dislocation of the scapulohumeral joint. 38 C.F.R. § 4.71a, DC 5202. The Veteran's treatment records reveal bilateral shoulder instability and recurrent dislocations dating back to at least 2011, before the current appeal period. Moreover, the September 2013 VA examiner recorded a history of recurrent dislocation of the scapulohumeral joint, bilaterally, with guarding of movement only at the shoulder level. Based on these findings, the Veteran is entitled to a separate evaluation of 20 percent for each arm. At this time, the Veteran is not entitled to an evaluation in excess of 20 percent for either shoulder due to impairment of the humerus because there is no competent evidence of record he has guarding of all arm movements, fibrous union, nonunion, or loss of head of the humerus. Id. The Board has considered the alternative diagnostic codes 5200 and 5203. However, there is no competent evidence of clavicle or scapula impairment, such as dislocation, nonunion, or malunion of the clavicle or scapula, or ankylosis. Here, the Board has assigned the highest rating possible for limitation of motion of the Veteran's right and left shoulder for the period beginning on February 23, 2016. The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Thus, additional compensation for functional loss is not appropriate after this date. As for the period prior to February 23, 2016, the Board notes that the Veteran's problems with pain, excess movement, and flare-ups are adequately compensated by the ratings for limitation of motion and the separate rating for dislocation with guarding at the shoulder level. To assign another rating for these symptoms would constitute prohibited pyramiding. 38 C.F.R. § 4.14 (2015). In sum, the Veteran is entitled to a separate evaluation of 20 percent for both the left and right shoulder due to recurrent dislocation of the scapulohumeral joint with guarding of movement at the shoulder level throughout the appeal period under Diagnostic Code 5202. Additionally, from February 23, 2016, he is also entitled to an increase from 20 percent to 30 percent disabling for the left shoulder, and an increase from 30 percent to 40 percent disabling for the right shoulder, due to limitation of motion of his arms. This being the highest rating possible for limitation of motion of the major and minor shoulders. 38 C.F.R. 4.71a, DC 5201. 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 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. Yancy v. McDonald, 27 Vet.App. 484 (2016). Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) on a collective basis is not warranted in this case. On an individual basis, the discussion above reflects that the symptoms related to the Veteran's shoulder disabilities are contemplated by the applicable rating criteria. The effects of the Veteran's disability, including pain and reduced motion and mobility have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and extraschedular rating is not warranted. 38 C.F.R. §3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). TDIU Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities requires the presence of impairment so severe that the average person would not be able to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology or both upper extremities will be considered as one disability. See 38 C.F.R. § 4.16(a)(2). Given the Board's findings above, the Veteran's combined rating for his left and right shoulder disabilities and his service-connected depression is 80 percent, throughout the entire appeal period. Thus, the Veteran is eligible to receive TDIU benefits on a schedular basis throughout the appeal period. See 38 C.F.R. § 4.16(a). The remaining inquiry is whether sufficient evidence exists that the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. As noted above, a VA orthopedic surgeon indicated in September 2013 that the Veteran is not able to work as a result of weakness in his arms, and side effects of his medications. At his hearing, the Veteran testified that he takes various medications such as OxyContin, methadone, and morphine. See Hearing Transcript P 8. These medications are reflected in the several pain management notes of record. The Veteran testified he applied for several positions in his field of work since he stopped working in 2010, but was specifically told he cannot work because of his medications. Id. at 10-11. The Veteran has only worked in construction, granite, and cement work his entire life, and he has no college education. He is not proficient with computers and has no experience with sedentary employment. Id. at 3, 12. The September 2013 VA examiner indicates the Veteran is limited in his ability to lift objects or work overhead, thus precluding any type of physical labor. Based on this evidence, the Board finds it is at least as likely as not the Veteran's shoulder disabilities prevent him from obtaining and maintain substantially gainful employment. The Board finds the Veteran is physically limited to, at best, sedentary employment. However, it is at least as likely as not the Veteran is not able to obtain sedentary employment due to his lack of formal education as well as the side-effects of his medications. Resolving all reasonable doubt in his favor, the Board finds the Veteran is entitled to a TDIU. ORDER A separate evaluation of 20 percent for left shoulder scapulohumeral joint dislocation is granted for the entirety of the appeal period. A separate evaluation of 20 percent for right shoulder scapulohumeral joint dislocation is granted for the entirety of the appeal period. For the period prior to February 23, 2016, a rating greater than 20 percent for a left shoulder disability due to limitation of motion is denied. For the period beginning on February 23, 2016, an evaluation of 30 percent for a left shoulder disability due to limitation of motion is granted. For the period prior to February 23, 2016, a rating greater than 30 percent for a right shoulder disability due to limitation of motion is denied. For the period beginning on February 23, 2016, an evaluation of 40 percent for a right shoulder disability due to limitation of motion is granted. Entitlement to a total disability evaluation based upon individual unemployability is granted for the entirety of the appeal period. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs