Citation Nr: 18143800 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-26 593 DATE: October 22, 2018 ORDER Entitlement to a rating in excess of 20 percent prior to August 28, 2014, for chronic separation of the acromion at the right shoulder status post-surgery (right shoulder condition) is denied. Entitlement to a rating in excess of 20 percent from November 1, 2014, and thereafter for right shoulder condition is denied. Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the time-period prior to August 28, 2014, the Veteran’s right shoulder condition was manifested by complaints of pain, with some limitation of motion; however, ankylosis of the scapulohumeral articulation, limitation of motion to shoulder level, and a malunion or recurrent dislocation of the humerus was not shown. 2. For the time-period from November 1, 2014, and thereafter, the Veteran’s right shoulder condition is manifested by complaints of pain, with some limitation of motion; however, ankylosis of the scapulohumeral articulation, limitation of motion to shoulder level, or a malunion or recurrent dislocation of the humerus is not shown. 3. The Veteran’s service connected disabilities do not render him unemployable. CONCLUSIONS OF LAW 1. For the time-period prior to August 28, 2014, the criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes (DCs) 5201, 5203 (2017). 2. For the time-period from November 1, 2014 and thereafter, the criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, DCs 5201, 5203 (2017). 3. The criteria for entitlement to TDIU have not been met at any time since the claim has been filed. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from September 1965 to August 1969. In May 2018, the Veteran and his spouse testified at a Board hearing. The transcript is of record. In the case of Rice v. Shinseki, 22 Vet. App. 447, 455 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. I. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran contends he is entitled to a rating in excess of 20 percent for his right shoulder condition. At the hearing, the Veteran testified that he has pain that interferes with his sleep and his ability to raise his arm. The Board notes that, from August 28, 2014, to November 1, 2014, the Veteran was rated at 100 percent for convalescence, and that period will not be discussed. Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 to 5203. The Veteran’s right shoulder condition is currently rated at 20 percent disabling under DC 5203, which is the highest rating warranted, due to dislocation of the clavicle or scapula. Therefore, a higher rating under DC 5203 is not warranted. The Board has considered other applicable diagnostic codes and for the reasons discussed below, the Veteran is not entitled to a higher rating for his right shoulder condition. In March 2014, the Veteran attended a VA examination of the right shoulder. His range of motion (ROM) testing revealed no limitations and the Veteran reported no flare-ups. Further examination revealed normal strength, no tenderness or pain on palpation and no guarding or ankylosis. The examiner concluded that the Veteran’s right shoulder condition did not impact his ability to work. The Veteran attended another VA examination in December 2014 and again reported no flare-ups. Degenerative arthritis was noted in the right shoulder. ROM testing revealed flexion limited to 110 degrees, abduction to 100 degrees, and internal rotation to 45 degrees. The Veteran did not have any limitations with external rotation. Repetitive use testing was not able to be conducted due to the Veteran experiencing soreness from his physical therapy appointment. Further examination revealed normal muscle strength and no muscle atrophy, no ankylosis, or shoulder instability or dislocation, and no impairment of the humerus. Again, the examiner found that the Veteran’s right shoulder condition did not impact his ability to work. In November 2016, the Veteran underwent another VA examination and reported flare-ups and functional impairment limiting repetitious and overhead lifting. ROM testing for the right shoulder revealed flexion limited to 140 degrees, abduction limited to 130 degrees, internal rotation to 60 degrees and no limitations on external rotation. Repetitive use did not result in additional loss of ROM; however, pain caused additional functional loss resulting in flexion up to 125 degrees, abduction to 120 degrees, external rotation to 85 degrees, and internal rotation to 55 degrees. Additionally, the examiner reported that flare-ups result in additional loss of ROM with flexion to 120 degrees, abduction to 115 degrees, external rotation to 80 degrees, and internal rotation to 50 degrees. Further examination revealed a reduction in muscle strength but no muscle atrophy or ankylosis. Shoulder instability or dislocation as well as mechanical symptoms were indicated but no history of recurrent dislocation of the glenohumeral joint or impairment of the humerus was found. The examiner concluded that the Veteran’s right shoulder condition impacted his ability to lift weight or work with his arms overhead. In January 2017, the Veteran submitted a disability benefits questionnaire (DBQ) from his treating physician, Dr. R.F., who noted that the Veteran is doing well and no longer has issues with his shoulder. The Veteran reported no flare-ups or functional loss. The DBQ did not provide ROM measurements but noted that there is no pain on ROM movements. The medical examination found no muscle atrophy, no evidence of crepitus, and no functional impact on occupational tasks. In May 2018, the Veteran provided another DBQ by Dr. R.F. and this time the Veteran reported flare-ups and functional loss, which he described as weakness. ROM testing revealed flexion limited to 176 degrees, abduction to 145 degrees, and external rotation 75 degrees. Repetitive use testing resulted in additional limitation of flexion to 145 degrees, abduction to 90 degrees, and external rotation to 70 degrees. Further limitations were reported due to fatigue and lack of endurance with contributing factors of less movement than normal, weakened movement, excess fatigability, pain on movement and atrophy of disuse. Physical examination noted reduced muscle strength recorded as four out of five and muscle atrophy but no loss of head, nonunion or fibrous union of the humerus or marked deformity was found. Review of the medical records reveal that the Veteran was limited to forward flexion of 140 degrees in November 2014. In January 2015 The Veteran had improvement in ROM and in November 2016 he doing better and no longer having issues with his shoulder. However, in February 2017, the Veteran reported pain while sleeping and his ROM testing revealed passive forward flexion limited to 145 degrees with pain. Based on the medical and lay evidence of record, the Board finds a higher rating for right shoulder condition is not warranted either prior to August 28, 2014 or after November 1, 2014. The Board considered whether a higher rating is warranted under DC 5201, which requires arm limitation of motion at shoulder level for a compensable rating. However, throughout the entire period on appeal, neither VA examinations nor private treatment records demonstrate the limitation of motion required for an increased rating, as the record reflects that, at most, the Veteran’s flexion of his shoulder was limited to 110 degrees in December 2014. The Board has also considered DC 5200 and 5202. However, the medical evidence does not establish the presence of ankylosis or an impairment of the humerus at any time during the appeal period; therefore, a higher rating under DC 5200 or 5202 is not warranted. Therefore, a rating in excess of 20 percent is not warranted for the entire period on appeal for right shoulder condition. II. TDIU TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability or as a result of two or more disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16 (a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran alleges that his service connected disability of the right shoulder condition prevents him from securing and following a substantially gainful occupation. However, the Veteran does not meet the threshold requirements for entitlement to TDIU on a schedular basis. The Veteran is service connected for the right shoulder condition at 20 percent disabling and tinnitus at 10 percent disabling for a total combined disability rating of 30 percent. As the Veteran does not have a single disability rated at 60 percent or one 40 percent disability during the appellate period, the Veteran is not entitled to a TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). If the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a) are not met, but evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Therefore, the Board must specifically adjudicate whether to remand a case for referral to the Director of the Compensation Service for consideration of an extraschedular TDIU. Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In order to prevail on an extraschedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds that a referral for consideration of the TDIU claim for extra-schedular consideration is not warranted for the following reasons. As discussed in detail above, the Veteran attended VA examinations in March 2014 and December 2014, both VA examiners concluded that the Veteran’s right shoulder condition did not impact his ability to work. There is no other evidence of any symptoms associated with the right shoulder disability which is unusual. Just prior to the Veteran’s surgery in August 2014, Dr. R.F. provided a statement noting complaints of pain and discomfort and difficulty with reaching and overhead activity; however, treatment records after surgery indicate excellent progress and improved range of motion. In November 2016, the Veteran reported to Dr. R.F. that he was doing much better and no longer having issues with his shoulder; yet at the VA examination that same month the Veteran reported limitations with repetitious and overhead lifting and the VA examiner found the Veteran’s right shoulder condition limits his ability to lift weight or work with his arms overhead. A few months later, in January 2017, Dr. R.F. provided a DBQ reporting that the Veteran’s right shoulder condition does not impact his ability to perform any type of occupational task. However, in 2018 by Dr. R.F. reported that the Veteran’s right shoulder condition impacted his ability to lift, push, pull and reach overhead. The Board acknowledges that the Veteran’s service-connected right shoulder condition impacts his ability to engage in certain employment; however, the evidence does not support a finding that his right shoulder condition prevents him from obtaining or sustaining any kind of employment. Throughout most of the appeal period, the Veteran’s right shoulder condition did not result in any functional impairment that affected his ability to work. The record does indicate that the Veteran has some restrictions in his ability to lift, push, pull, and reach overhead; however, the Veteran’s limitations, do not rise to the level of precluding any form of substantially gainful employment. Therefore, as the evidence does not indicate that the Veteran has been rendered unemployable by reason of his service-connected disabilities at any time during the pendency of the appeal, the Board is not required to submit his claim to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel