Citation Nr: 1751523 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 09-12 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for tendonitis, left shoulder, status post left shoulder arthroscopy, with rotator cuff repair (also claimed as adhesive capsulitis; hereafter a "left shoulder disability"). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel INTRODUCTION The Veteran had active service from August 1987 to August 2007. This matter comes before the Board of Veteran's Appeals (Board) on appeal from the November 2008 rating decision of the Department of Veterans Affairs Regional Office (RO) in North Little Rock, Arkansas, denying the claims currently on appeal. The Veteran was afforded a hearing before the undersigned Veterans Law Judge at the RO in North Little Rock, Arkansas in December 2009. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The Veteran submitted additional evidence to the Board and waived RO consideration of the evidence. See December 2009 Statement in Support of Claim. In October 2011, the Board remanded the claims on appeal to the RO for additional development. A July 2017 rating decision increased the disability rating for the left shoulder to 20 percent effective September 1, 2007. A July 2017 supplemental statement of the case (SSOC) continued denial of the claims. The matter has now returned for further adjudication. FINDINGS OF FACT 1. Throughout the entire period on appeal, the service-connected left shoulder disability was manifested by complaints of pain but the Veteran was able to move his arm more than 45 degrees in abduction (limitation of motion was not limited to midway between the side and shoulder). 2. The Veteran's neurological symptoms are not related to his left shoulder disability. 3. The Veteran's service-connected disorders in the aggregate do not preclude obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for tendonitis, left shoulder, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.C. §§ 4.7, 4.71a, Diagnostic Code 5201 (2017). 2. The criteria for TDIU have not been met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) and (b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2016); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1) (2017). The appeal arises from a disagreement with the initially assigned disability rating after service connection was granted. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated. VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service, VA, and private treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He also was provided with VA examinations in connection with his claim for a higher initial rating. The Board finds that there has been substantial compliance with the October 2011 Board remand directives and, therefore, no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Left Shoulder Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2017). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Thus, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3 (2017). The Veteran's left shoulder disability is currently rated as 20 percent under DC 5201, regarding limitation of motion of arm. See 38 C.F.R. § 4.71a, DC 5201. In particular, limitation of motion of the arm is to be rated under DC 5201. See 38 C.F.R. § 4.71a, DC 5201. Normal ranges of upper extremity motion are defined by VA regulations as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; internal and external rotation to 90 degrees; and finally, lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71a, Plate I (2017). Pursuant to DC 5201, limitation of motion of the major extremity at shoulder level warrants a 20 percent disability rating for both major and minor sides. Id., DC 5201. A 30 percent disability rating is warranted for limitation of the motion of the major extremity midway between the side and shoulder level on the major side, while such impairment of the minor side warrants a 20 percent disability rating. Id. A maximum schedular 40 percent disability rating is warranted for limitation of motion of the arm to 25 degrees from the side on the major side, which such impairment on the minor side warrants a 30 percent disability rating. Id. The Veteran contends that he is entitled to a higher disability evaluation for his left shoulder disability. Following a review of the record, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to an increased disability rating in excess of 20 percent for his left shoulder disability. With respect to medical evidence, the Board has reviewed the Veteran's VA examinations, VA treatment records, and private treatment records. The Veteran's August 2008 private treatment records show he exhibited full range of motion of the left shoulder with the exception of limitation of motion of abduction to 90 degrees with the inability to place his hand behind his back. See August 2008 Private Medical Records. The private treatment records are based upon physical examinations, radiological findings, continuous treatment of the Veteran, and the Veteran's prior medical history obtained by a medical professional. The Veteran reported that pain in his left shoulder limited his sleep, ability to drive, and perform overhead tasks. See October 2008 VA Treatment Records. However, the Veteran was able to fix a room after taking a hydrocodone. Id. His treatment records showed no shoulder weakness, but restricted range of motion and moderate pain on internal/external rotation. Id. The left shoulder showed no additional weakness, fatigability, discoordination, or functional impairment following repetitive stress testing. Id. In November 2008, the VA examiner found the Veteran's left shoulder range of motion showed posterior flexion was 20 degrees, forward flexion 100 degrees, abduction 100 degrees, external rotation 80 degrees and internal rotation 90 degrees. See November 2008 VA Examination. The Veteran exhibited pain at the extreme range of motions in all directions for the left shoulder. Id. The examiner found weakness of the left shoulder during flare-ups without additional loss of motion. Id. The Veteran is functionally limited with overhead and lifting activities. Id. In the November 2008 VA examination, the Veteran reported he experienced flare-ups with overhead lifting and range of motion activities. Id. The November 2008 examiner's opinion is based on review of the claims folder, an examination of the Veteran's left shoulder, and includes the Veteran's lay statements. VA treatment records show the Veteran had 60 degrees of flexion of the shoulders with resisted further flexion. See October 2009 VA Treatment Records. The Veteran exhibited slight discomfort on the left with limited internal and external rotation. Id. The Veteran was able to abduct out to about 80 degrees and unable to go further due to pain. Id. The Veteran flexed to about 80-90 degrees on the left. Id. The Veteran reported his auxiliary muscles compensated for the pain in his shoulder. See Transcript of December 2009 Videoconference Hearing at 7. If the Veteran reached for something, his left shoulder stings and goes numb. Id. The Veteran's April 2011 treatment records show left shoulder with pain on active motion. However, they do not show pain on passive testing. See April 2011 VA treatment record. In May 2011, the Veteran continued to show pain free flexion of 70 degrees, abduction to about 60 degrees, and internal rotation to about 20 degrees. See May 2011 VA Treatment Records. The Veteran's private treatment records in February 2012 show the Veteran had 100 degrees active and 160 degrees passive forward elevation of the left shoulder; 45 degrees active external rotation and internal rotation up to the sacrum. The neurovascular examination was normal. See February 2012 Private Medical Records. The VA examiner in October 2015 reported the Veteran's left shoulder flexion to 150 degrees, abduction to 90 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. See October 2015 VA Examination. The examiner found pain upon examination which caused functional loss for flexion and abduction ranges of motion. Id. The Veteran reported daily pain, flare-ups of the shoulder, and increased pain with overhead work. Id. He also reported functional loss and functional impairment of the joint. Id. The VA examiner in May 2017 reported the Veteran's left shoulder flexion and abduction to 180 degrees and external and internal rotations to 90 degrees, in the normal range of motion on active and passive motion. See May 2017 VA Examination. The examiner noted no pain on exam or with weight bearing or non weight-bearing. Id. The left shoulder did not have any additional loss of function or range of motion after three repetitions. Id. The right shoulder was examined as well. Both the October 2015 and May 2017 VA examinations were conducted by medical professionals who examined the Veteran and reviewed the Veteran's claims file, including VA treatment records. When considering the pertinent evidence of record, as described above, the Board finds that the level of impairment that is demonstrated in this case does not reflect that motion of the Veteran's left arm is limited to midway between the side and shoulder level, or 45 degrees, to warrant a 30 percent evaluation under DC 5201. Range of motion testing revealed, at worst, 60 degrees flexion, 60 degrees abduction, internal rotation to 20 degrees and external rotation to 45 degrees. The Veteran's most recent VA examination showed normal range of motion with no additional loss of range of motion upon repetitive testing, however, the Veteran did complain of pain and flare-ups. In this regard, the medical and lay evidence overwhelming shows that the Veteran's flare-ups and increased pain is primarily triggered when he attempts to use his arm for over head activity. Thus, the functional loss associated with his left shoulder is primarily motion beyond 90 degrees which is consistent with the currently assigned 20 percent rating. The Board notes that functional loss of the musculoskeletal system may be due to pain, supported by adequate pathology and evidence by visible behavior of the claimant undertaking the motion. See DeLuca at 202 (1995); 38 C.F.R. § 4.40. However, pain alone does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's complaint of left shoulder pain did not result in functional loss sufficient to produce a higher rating. Thus, even considering the Veteran's subjective complaints of pain, the medical evidence of record does not support any additional limitation of motion in response to repetitive motion that would support an evaluation in excess of the 20 percent assigned for all periods on appeal. Finally, the Board has considered whether there may be any other relevant Diagnostic Code that would allow for a higher or separate disability rating throughout the appeal period. However, there is no evidence of ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle and scapula, and as such a higher or separate disability rating is not available. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. Specifically, the May 2017 VA examiner noted that there was no ankylosis of the left shoulder. See May 2017 VA Examination. Additionally, the examiner noted there was no shoulder instability, dislocation, or labral pathology suspected. Id. The Veteran also did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus, or malunion of the humerus with moderate or marked deformity, or malunion or nonunion of the clavicle or scapula. Therefore, an increased or separate disability rating is not warranted under DCs 5200, 5202, 5203. Additionally, the Board notes that the Veteran states his pain is worse and continues to experience numbness in his pinkie and forearm. See May 2011 VA Treatment Record. However, there is no persuasive evidence the Veteran's neurological symptoms are related to his left shoulder disability. Specifically, the VA examiner opined that the Veteran's neurological impairment is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected tendonitis, left shoulder, status post shoulder arthroscopy, with rotator cuff repair. See May 2017 Disability Benefits Questionnaire. The examiner also opined that the neurological symptoms were not at least as likely as not aggravated beyond a natural progression by the repair of the rotator cuff. Id. Therefore, the Veteran is not entitled to a separate disability rating for any neurological manifestations of his disability. The Veteran is competent to report on symptoms and credible in his belief that he is entitled to a higher rating. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the shoulder impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Additionally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the weight of the credible evidence demonstrates that the Veteran's left shoulder disability did not warrant a rating in excess of 20 percent under the relevant diagnostic codes for the periods under consideration. As the preponderance of the evidence is against the claim for an increased rating, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. TDIU A total disability 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 service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where 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. § 4.16 (a). Since September 1, 2007, the Veteran has been in receipt of a 50 percent rating for major depression (also claimed as mood disorder); a 20 percent rating for tendonitis, left shoulder, status post left shoulder arthroscopy, with rotator cuff repair (also claimed as adhesive capsulitis); a 10 percent rating for tinnitus; and noncompensable ratings for herpes simplex keratitis, hypertension, and residual left shoulder surgical scarring associated with tendonitis, left shoulder, status post left shoulder arthroscopy, with rotator cuff repair. His combined evaluation for compensation is 60 percent. 38 C.F.R. § 4.25 (2017). The Veteran does not qualify for TDIU under 38 C.F.R. § 4.16 (a). The Veteran does not have a single-service connected disability that is rated at 60 percent or more. He also does not have two or more service-connected disabilities that bring the combined rating to 70 percent or more, although he does have one disability that is ratable at 40 percent or more. Thus, the Veteran does not qualify for TDIU on a schedular basis. Where the percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19 (2017). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (b), 4.19. The evidence of record reflects that the Veteran's last full time employment was in August 2007. He worked as a Navy Corpsman from January 1986 to August 2007. See March 2007 SSA Medical Treatment Records. His highest level of education was 4 years of high school. See Veteran's Application for Increased Compensation Based upon Unemployability. He also received training in preventative medicine and combat training. See Veteran's Application for Increased Compensation Based upon Unemployability. The Veteran stated that he cannot work and his hand goes numb due to his left shoulder disability. See Transcript of December 2009 Videoconference Hearing at 5. Additionally, an October 2015 VA examiner found that the Veteran's diagnosis impacts his ability to perform occupational tasks that included overhead work with his left upper extremity. See October 2015 VA Examination. However, the VA examiner stated that since the Veteran was previously a corpsman and has over 160 hours of college credit, retraining for different occupations is viable. Id. Moreover, a May 2017 VA examiner noted the Veteran reported depressive symptoms of moderate severity, but the VA examiner opined these symptoms have not dramatically impaired his occupational functioning. See May 2017 VA Examination. The VA examiner maintained that the Veteran would likely be able to perform job tasks satisfactorily under normal working conditions, but might experience anxiety working under stressful conditions. Id. The VA examiner recognized that the Veteran served as a medical corpsman in the US Navy for 21 years, and that he had a high school education. Id. The VA examiner indicated that the Veteran would likely be able to work in some capacity in the medical or public healthcare fields. Id. An examiner also found the Veteran's current left shoulder disability does not impact his ability to perform any type of occupational task and the Veteran would have no limitations on type of employment because he had full range of motion with no pain. Id. After having reviewed the record and weighing the evidence both in support of and against the claim, the Board finds that the evidence of record does not persuasively show that the Veteran is unemployable due to service connected disabilities. Again, the fact that the Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. The Veteran's high combined disability rating is recognition that his service connected disabilities interfere with his ability to perform the physical and mental acts required by employment. His disabilities, however, do not render him incapable of substantially gainful employment. Thus, referral for extraschedular consideration of unemployability is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 20 percent for tendonitis, left shoulder, status post left shoulder arthroscopy, with rotator cuff repair is denied. Entitlement to a total disability rating based on individual unemployability is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs