Citation Nr: 1806259 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 08-23 066A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for a left shoulder disability, status-post rotator cuff repair. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD I. M. Hitchcock, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1985 to November 1989. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Columbia, South Carolina that denied entitlement to a disability rating in excess of 10 percent for the Veteran's left shoulder disability. Jurisdiction was subsequently transferred to the RO in Montgomery, Alabama. A May 2011 rating decision granted entitlement to a higher, 20 percent rating, effective April 7, 2011. A June 2012 Board decision granted the 20 percent rating dating back for the entire period on appeal, and then remanded the issue of entitlement to a rating in excess of 20 percent, including so that a new VA examination could be obtained to address any neurological impairment associated with the Veteran's left shoulder disability. This matter is returned to the Board for further review. With regard to the issue of entitlement to a TDIU, the Board notes by way of background that during the pendency of the Veteran's left shoulder rating claim, on appeal herein, the issue of entitlement to a TDIU was separately adjudicated and denied by way of an unappealed August 2010, rating decision which became final. The RO again denied TDIU in a May 2013 rating decision and the Veteran asserted in August 2013 that he was entitled to TDIU. In June 2014, the Board once again remanded the matter to obtain updated VA examinations for the Veteran's left shoulder claim and TDIU. This development has been completed. In the interim, the Board received judicial guidance on the requirement for increased ratings examinations for musculoskeletal disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016). After this guidance, the Veteran attended a VA examination in August 2017 and this examination substantially complied with Correia by including joint testing for pain on both active and passive motion, and in weight-bearing and range of motion measurements (ROM) of the opposite undamaged joint (in this case, the right shoulder). While this decision addresses other matters, in January 2018, the Veteran, through his representative, also contended that his service-connected migraine disorder should be afforded extraschedular consideration. However, the Veteran has not filed a formal claim for such consideration, and it is therefore not before the Board. The issue of entitlement to an extraschedular TDIU 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 service-connected left shoulder disability, status-post rotator cuff repair, has manifested in, at worst, flexion from 0 to 95 degrees; abduction from 0 to 80 degrees; and internal and external rotation both from 0 to 50 degrees; and functional limitations, including painful range of motion. 2. Throughout the course of the appeal, the Veteran's service-connected disabilities, in combination or alone, have not combined to reach 70 percent disability, the level required for consideration of schedular TDIU. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for left shoulder disability, status-post rotator cuff repair, manifested by limitation of motion or function of the arm to shoulder level, have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.45, 4.59, 4.71a, DC 5003 and 5201 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veteran, through his representative, asserted that the VA medical opinions dated August 2017 is inadequate because the opinion does not specifically address the Veteran's employability. However, the Board finds that the examination is adequate because the opinions contain discussions on the resulting functional limitations of the Veteran's service-connected disabilities. Neither the Veteran nor his representative has referred to any other deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claims. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Left-Shoulder rating in excess of 20 percent The Veteran seeks a disability rating in excess of 20 percent for the service-connected left shoulder disability, status-post rotator cuff repair. He complains of pain upon movement that affects his ability to perform daily tasks such as driving, bathing, and yard work. The Veteran asserts that the pain also affects his ability to sleep and has caused him to become depressed. The Veteran's sister submitted two statements, one in February 2007 and the other in May 2012. These statements mirror the Veteran's complaints of pain and depression. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. When assigning disability ratings based on limitation of motion or function, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in the reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Based on the manifestations of the disability, as discussed below, the Board finds that Diagnostic Code (DC) 5201 is the most appropriate code in this case. DC 5201 assigns a 30 percent evaluation, the highest available schedular evaluation, for limitation of motion of the minor (non-dominant) arm to 25 degrees to the side. A 20 percent evaluation is assigned for limitation of motion of the arm midway between side and shoulder level or if motion is limited to shoulder level. A 20 percent rating is also assigned for limitation at shoulder level. Normal range of motion for the shoulder is from 0 to 180 degrees on forward flexion and abduction, and from 0 to 90 degrees on internal and external rotation. See 38 C.F.R. § 4.71a , Plate I (2011). There are other DCs that involve the evaluation of the upper extremities. DC 5200 involves ankylosis of the scapulohumeral articulation (the scapula and humerus move as one piece). Impairment of the humerus is covered by DC 5202. Ratings for impairment of the clavicle and scapula are covered under DC 5203. DC 5003, degenerative arthritis, requires rating according to the limitation of motion of the affected joints, if such would result in a compensable disability rating. 38 C.F.R. § 4.71a. Traumatic arthritis, under DC 5010, is to be rated on limitation of motion of the affected parts, as degenerative arthritis. The pertinent medical evidence of record in this case consists primarily of VA examinations, conducted in March 2007, February 2009, April 2011, July 2012, December 2012, March 2013, and August 2017. Additionally, there are numerous VA outpatient treatment reports showing ongoing complaints and treatment for left shoulder pain. At all of the VA examinations, the examiners noted the Veteran's past history with regard to the left shoulder, and in particular, that he injured his left shoulder during service. This injury led to numerous shoulder dislocations, which ultimately required surgery for repair in 1986. Since that time, the Veteran has reported continuing pain and limitation of function. The Veteran reported at all VA examinations and in several lay statements that he experienced great fatigue in the left shoulder with exertion. The Veteran also noted an inability to lift overhead and swim and difficulty with yard work and bathing. On examination in March 2007, the Veteran had a 7 cm well-healed non-tender scar anteriorly on his left shoulder. The Veteran winced in pain with all movements of his shoulder, when not at the limit of the range of motion. After repetitive motion he had increased and inconsistent range of motion. After repeated testing, flexion was 0 to 165 degrees, external rotation was 0 to 90 degrees, internal rotation was 0 to 65 degrees, and abduction was 0 to 185 degrees. X-rays revealed mild degenerative changes at the acromioclavicular (AC) joint of the left shoulder. On examination in February 2009, the examiner noted that the Veteran had tenderness and guarding with all movements. According to the examiner, there was objective evidence of pain with active motion on the left side. Flexion was 0 to 100 degrees; left abduction was 0 to 120 degrees; left internal rotation was 0 to 70 degrees; left internal rotation was 0 to 70 degrees. With regard to additional limitation with repetitive motion, the examiner also noted that there was objective evidence of pain following repetitive motion. There was no additional limitation of motion on repetition. The Veteran reported flare-ups of joint disease that were moderate to severe, occurring 1 to 2 times per week and lasting 3 to 4 hours at a time. He indicated that the extent of limitation of motion or other functional impairment on flare-ups was 55 to 65 percent. There was no ankylosis according to the examiner. X-ray studies were compared with films from 2007 and did not show much change. The examiner noted that the Veteran was currently employed full-time and had lost 2 weeks of work within the last year due to his migraines. With regard to functional limitation, the Veteran had problems with lifting and carrying, and pain. This had a moderate effect with regard to chores and a mild effect with regard to exercise, sports, and driving. It had no effect on shopping, traveling, feeding, bathing, dressing, toileting or grooming. An April 2011 VA examination of the left shoulder, the Veteran also reported no strength and recurrent dislocations. He took Tramadol and ibuprofen for pain. The examiner noted guarding of movements at the shoulder level. The examiner also noted objective evidence of pain with active motion on the left with flexion from 0 to 100 degrees; left abduction from 0 to 100 degrees; left internal and external rotation from 0 to 50 degrees. There was no additional pain or limitation of motion on repetitive use. There was no ankylosis demonstrated. The examiner reviewed a January 2010 MRI which showed 1) degenerative changes of the AC joint which were associated with considerably increased edema, a finding which would represent a grade 1 separation in the setting of acute trauma; 2) partial tear of the critical zone of the supraspinatus tendon; and, 3) mild glenohumeral joint degenerative cartilage loss. X-ray findings of April 2011 were similar to prior findings on x-ray. The examiner noted that the Veteran was self-employed as an auto mechanic but had lost 8 weeks of work in the last 12 months due to left shoulder pain and bad migraines. The examiner noted a diagnosis of mild left shoulder AC joint degenerative joint disease, status post-surgery with residual mild rotator cuff tendonitis. The Veteran reported problems in terms of his occupation with regard to lifting, carrying and reaching, due to pain. The Veteran had moderate functional limitation with regard to sports, and some mild trouble with chores, exercising and bathing, as he was unable to reach behind his back. A July 2012 VA examination noted flexion was 0 to 90 degrees and abduction was 0 to 80 degrees. The Veteran could not do repetitive use testing. Weakened movement, guarding, and 4/5 strength was noted in the left shoulder. At a December 2012 VA examination, flexion was 0 to 120 degrees and abduction was 0 to 125 degrees. With repetitive range of motion testing flexion and abduction remained as 0 degrees to 120 and 0 to 125 degrees, respectively. Weakened movement, as well as pain with movement, were noted. Infrequent episodes of dislocations were noted, but the date of these episodes were not specified. At a March 2013 VA examination, flexion was 0 to 125 degrees and abduction was 0 to 110 degrees. With repetitive testing flexion was 0 to 120 degrees and abduction was 0 to 125 degrees. The Veteran was noted to have weakened strength and pain with movement, as well as guarding of the shoulder. No anklyosis was noted. The Veteran tested positive for current rotator cuff and AC joint conditions. The examiner noted a history of recurrent dislocations, however these relate back to problems in the 1980's and 1990s. The VA examiner reviewed a December 2012 MRI that noted: "1) Increased signal intensity within the distal supraspinatus extending into the infraspinatus tendon along the articular surface with a small amount of associated fluid, possibly secondary to prior intervention/scar or recurrent/residual tear; 2) Hill-Sachs deformity and attenuation of the anterior/inferior glenoid labrum, consistent with prior shoulder dislocation; 3) Small superior/posterior labral tear; 4) Tenosynovitis of the biceps tendon; and 5) Prior intervention of the subscapularis, with no evidence of recurrent tendon tear. Cuff tendinosis, AC joint degenerative change, and cuff encroachment." Overall, the examiner found that the Veteran should do no heavy lifting or overhead work. The last VA examination was in August 2017. The examiner noted flexion from 0 to 140 degrees, abduction from 0 to 140 degrees, external rotation from 0 degrees to 80 and internal rotation from 0 to 75 degrees. The Veteran reported pain and fatigue with rotation and abduction and lifting or carrying. There was mild tenderness with palpation over the anterior, lateral, and posterior shoulder. His strength was normal, with no anklyosis, no rotator cuff conditions, no instability, and no other conditions involving the AC joint or humerus. There was no additional range of motion loss noted with repetitive testing. In a February 2017 MRI, findings were similar to the prior December 2012 MRI, with mild degenerative joint disease noted. Overall, these range of motion testing do not rise to the next higher level of limitation of motion under DC 5201. However, the issue of whether the Veteran is entitled to a higher evaluation based on neurological symptoms as being associated with the service-connected left shoulder injury with degenerative changes was raised by the record, see e.g., the February 2009 and April 2011 VA examination reports (Veteran reported numbness and tingling in the left upper extremity). The Veteran specifically had a nerve VA examination in July 2012. He reported mild constant pain, parethesis, and numbness. His strength was normal, except 4/5 left grip and decreased left hand light touch on his fourth and fifth digits. No formal electrodiagnostic testing was performed, but no functional limitations were identified. At a March 2013 VA examination, no anklyosis was noted. The Veteran tested positive for current rotator cuff and AC joint conditions. The examiner noted a history of recurrent dislocations, however these related back to problems in the 1980's and 1990s. In August 2017, positive neurological findings were identified. Further, a note in August 2015 indicates that his shoulder pain (and foot and hand pain), is likely secondary to his poorly controlled diabetes mellitus. Therefore, no other upper extremity conditions have been confirmed by the record (under DC's 5200, 5202, 5203, 5003, or 5010). The only confirmed disability has been limitation of motion of the left shoulder, DC 5201, which has generally been limited to shoulder level during the entire appeal period. When considering his claimed fatigue with repetitive use, his claimed weakness, and increased pain with additional motion, as noted by the VA examiners, a 20 percent rating is appropriate, but no higher. III. TDIU A TDIU rating may be warranted when a Veteran demonstrates the inability to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 C.F.R. § 4.16(a). Minimum disability rating percentages must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability rendering a combined rating of 70 percent or more. Id. When a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating may never nevertheless be warranted where the veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Should the Board discern a plausible basis for an extraschedular TDIU, it must refer the matter to the Director of Compensation Service for an initial decision before the Board may decide the issue. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The question of unemployability or the Veteran's ability or inability to engage in substantial gainful activity, must be examined in a practical manner. The crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board shall consider the nature of the employment and the reason for any termination. 38 C.F.R. § 4.16 (a). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341 , 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record must reflect some factor that takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). Here, the Veteran does not meet the minimum disability rating percentage threshold for consideration of schedular TDIU. 38 C.F.R. § 4.16 (a). The Veteran is currently service connected for migraine headaches (50 percent from November 1, 2007), left shoulder repair with degenerative arthritis (20 percent from April 21, 2004), and scar, status post left shoulder repair (0 percent from April 30, 2012). The Veteran's combined evaluation is 60 percent from November 1, 2007. Thus, the Veteran does not have one disability rated at least 60 percent, nor does he have at least one disability rated at least 40 percent with an additional disability that creates a combined evaluation of at least 70 percent. Nevertheless, the issue of entitlement to an extraschedular TDIU rating will be addressed in the remand portion of this decision. ORDER Entitlement to a rating in excess of 20 percent for left shoulder disability, status-post rotator cuff repair, has not been met or approximated. The criteria for a TDIU have not been met. REMAND Although the Board regrets the additional delay, a remand is necessary to refer for extraschedular consideration, the Veteran's TDIU claim for the rating period on appeal. As discussed above, the Veteran did not meet the minimum schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) also provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extraschedular rating of unemployability. In this case, there is a question of the Veteran's ability to secure and follow substantially gainful employment. The most recent opinion from a VA examination in August 2017 finds that given the Veteran's migraines, he would not be able to do work that requires exposure to loud and distracting noise, bright artificial light, or a strict work schedule. Further given the Veteran's left shoulder disability, he would not be able to lift over 25 pounds and sedentary work may be appropriate. The file also contains two opinions from K.S., VRC, a vocational counselor that has worked with the Veteran, dated October 2010 and November 2011. The opinions are nearly identical. K.S. gave the opinion that the Veteran has no previously learned civilian employment skills or any other transferable skills that he can use for employment purposes, due to his past work experiences: his skills are appropriate to manual labor only and he is not retrainable. Further, despite the Veteran's apparent motivation, the Veteran has a combination of symptoms that impact his ability to work: he "must lie down in a low light area frequently to control migraine symptoms and lacks the exertional ability to perform light/sedentary work on an otherwise consistent basis. His migraines occur twice a week. He cannot meet the various standing, sitting, and walking requirements of competitive work, due to his postural limitations and uncontrollable migraines. He is unable to perform desk work or seated work in our opinion." In combination, there is a question about the Veteran's employability. The Veteran's shoulder limitations impact his ability to lift, carry, and use his arm on a sustained basis. Such a limitation, limits his ability to perform occupations at higher exertional levels. Further, the Veteran's migraines limit his ability to be around bright lights, including computer screens, to be around noises, fumes, and to sustain a workday or workweek, to include his ability to concentrate. K.S. gave the opinion that his migraines also impact his ability to sit, stand, and walk for the time needed in a workday in a competitive job. In addition, the Veteran's work history has generated few skills that would transfer to other occupations. Overall, the Veteran may be able to perform some work considering a disability to the exclusion of his other service-connected disabilities; however. when all service-connected disabilities are considered together, the Veteran's vocational profile appears to be limited, such that a referral is warranted. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to provide a full statement regarding the severity and functional impact of his service-connected disabilities, as well as to provide information on his employment history and specific information regarding his educational background, for the appeal period. Any additional development regarding this claim for an extraschedular TDIU should be completed. 2. Thereafter, refer the Veteran's claim to the Director, Compensation and Pension Service, for consideration of an extra-schedular TDIU award for the appeal period. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112. _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b). Department of Veterans Affairs