Citation Nr: 18154437 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 10-06 814 DATE: November 29, 2018 ORDER Entitlement to a disability rating in excess of 30 percent prior to April 30, 2018, and in excess of 40 percent thereafter, for a left shoulder disability, is denied. Entitlement to an increased rating in excess of 20 percent prior to April 30, 2018, and in excess of 30 percent thereafter, for a right shoulder disability, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. For the rating period from January 6, 2009 to April 30, 2018, the right and left shoulder disabilities had been manifested by symptoms of pain, weakness, fatigue, incoordination, and guarding, with episodes of locking that are productive of, at worst, limitation of left shoulder flexion to 60 degrees and abduction to 45 degrees; and limitation of right shoulder flexion to 50 degrees and abduction to 40 degrees. 2. For the rating period from April 30, 2018, the right and left shoulder disabilities have been assigned the maximum ratings at 30 percent disabling and 40 percent disabling, respectively. No higher rating is available under any other Diagnostic Code for either shoulder. 3. The percentage criteria for TDIU were met as of December 14, 2007. 4. As the Veteran has been granted a total 100 percent rating for his service-connected disabilities from October 9, 2008, the issue of TDIU entitlement starting from October 9, 2008 is moot. 5. The evidence of record between December 14, 2007 to October 9, 2008 does not demonstrate that the Veteran’s service-connected disabilities alone rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent prior to April 30, 2018, and in excess of 40 percent thereafter, for a left shoulder disability, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5201 (2017). 2. The criteria for entitlement to an increased rating in excess of 20 percent prior to April 30, 2018, and in excess of 30 percent thereafter, for a right shoulder disability, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5201 (2017). 3. The criteria for entitlement to TDIU between December 14, 2007 and October 9, 2008 have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1965 to December 1968, and from March 1971 to March 1987. The issues are on appeal from a March 2009 rating decision. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R § 4.7. Reasonable doubt regarding the degree of disability will be resolve in the veteran’s favor. 38 C.F.R. § 4.3. When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); see DeLuca v. Brown, 8 Vet. App. 202 (1995). 1. Left shoulder and right shoulder disabilities The Veteran is assigned a 30 percent disability rating for his left shoulder and a 20 percent disability rating for his right shoulder for the appeals period from January 6, 2009 to April 30, 2018, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. Diagnostic Code 5201 sets forth the criteria for rating limitation of motion of the arm and Diagnostic Code 5010 sets forth the criteria for rating arthritis due to trauma. Diagnostic Code 5010 provides that traumatic arthritis will be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis will be rated based on limitation of motion of affected parts. Under Diagnostic Code 5201, the rating criteria is based on range of motion of the major (dominant) and minor (non-dominant) arm. VA examiners have noted that the Veteran is left-hand dominant. Therefore, his left shoulder is considered the major extremity and the right shoulder is considered the minor extremity. See 38 C.F.R. § 4.71a, Code 5201. Diagnostic Code 5201 provides that limitation of motion of the arm at shoulder level warrant a 20 percent rating. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity and 20 percent rating for the minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. Id. Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). A Veteran is only entitled to a single disability rating under Diagnostic Code 5201 as that diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). In January 2009, the Veteran was afforded a VA examination. He reported left and right shoulder pain, stiffness, decreased speed of joint motion, several locking episodes per week, effusions, and severe flare-ups that occurred weekly and lasted for one to two days. He denied left or right shoulder deformity, giving way, incoordination, and episodes of dislocation or subluxation. The Veteran stated that his major functional impact was pain. On physical examination, his left shoulder range of motion showed limitation of flexion to 60 degrees and abduction to 45 degrees, with objective evidence of pain with active motion and repetitive motion. His right shoulder range of motion showed limitation of flexion to 50 degrees and abduction to 40 degrees. No ankylosis was found in either shoulder. Functionally, the left shoulder pain resulted in decreased manual dexterity, problems with lifting and carrying, and difficulty reaching. The examiner found that the left shoulder disability resulted in mild to moderate effects on daily chores; severe effect on exercise; and prevention of playing sports. Upon x-ray review, the Veteran’s left shoulder was found to be within normal limits, including the space between the humeral head and the acromion. A private treatment record from April 2009 showed the Veteran’s left shoulder had limited range of motion at 15 degrees, to flexion and abduction between side and shoulder with loss of repetitive use. The physician found that there was ankylosis with incoordination, giving way, stiffness, and locking. The right shoulder exhibited limited range of motion at 20 degrees, to flexion and abduction, between the side and shoulder with loss of repetitive use. The Veteran was also afforded another VA examination in October 2012. On physical examination, his left shoulder range of motion showed limitation of flexion to 105 degrees, with objective evidence of pain beginning at 90 degrees, and abduction to 90 degrees, with objective evidence of pain beginning at 85 degrees. His right shoulder range of motion showed limitation of flexion at 100 degrees with objective evidence of pain beginning at 90 degrees, and abduction to 95 degrees, with objective evidence of pain beginning at 90 degrees. The Veteran was found to have additional limitation in his range of motion after repetitive-use testing; as well as functional loss manifested by less movement than normal; weakened movement; excess fatigability; and pain on movement. Guarding was noted. No ankylosis was found. The Veteran denied episodes of subluxation, incoordination, deformity; and no AC joint condition or impairment of the clavicle or scapula were found. The examiner found that the left and right shoulder disabilities affected function due to a reduced ability to lift and carry more than 50 pounds repetitively, or working with his arms above shoulder level for a prolonged period of time. In March 2015, the Veteran was afforded another VA examination. The Veteran affirmed flare-ups related to his normal daily required activities, and increased shoulder pain with forward flexion and abduction movements. On physical examination, his left shoulder range of motion demonstrated limitation of flexion to 90 degrees and abduction to 80 degrees, to include as due to pain. The right shoulder range of motion showed limitation of flexion to 90 degrees and abduction to 80 degrees, to include as due to pain. He could not perform repetitive range of motion movements in either shoulder due to increased shoulder pain. Ankylosis, instability, AC joint conditions, and conditions of the humerus were not found. X-rays showed moderate osteoarthritic changes of the glenohumeral joint. The decreased range of motion contributed to functional loss as the Veteran had difficulty with normal daily activities requiring overhead extensions. His shoulder pain impacted his ability to lift any objects greater than approximately 10 pounds. The examiner opined that she could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or with flare-ups because the examiner could not predict these sorts of changes due to various environmental influences. In October 2016, the Veteran was afforded another VA examination. The Veteran reported flare-ups that resulted in severe pain and reduced endurance. He also reported functional impairment manifested by pain, loss of range of motion, and loss of endurance due to his shoulder disability. Upon range of motion testing, his left shoulder’s limitation of flexion was measured to 80 degrees and abduction to 45 degrees, resulting in loss of reach and lift. His right shoulder’s limitation of flexion was measured to 89 degrees and abduction to 45 degrees, also resulting in functional loss. Pain and functional loss were noted for each shoulder. After repetitive use testing, no additional functional loss or range of motion was found. No ankylosis was found. Shoulder instability, dislocation, or conditions of the humerus were not found. The clavicle or scapula condition was found to effect range of motion of the glenohumeral joint, and tenderness on palpation of the AC joint was found. The examiner stated that she could not opine on whether pain weakness, fatigability, or incoordination significantly limited functional ability with limited use over a period of time or with flare-ups without mere speculation as the examination was the only time she had examined the Veteran, and a flare-up was not observed. The examiner opined that the Veteran’s left and right shoulder disabilities affected his ability to perform occupational tasks as it affected all movement of his upper extremity; he could not lift, reach, bear weight; and it affected activities of daily living such as dressing, bathing, and toileting. VA treatment records from December 2017 showed the Veteran’s complaints of right shoulder aches and pain when lifting his arm. He stated that the right shoulder pain interfered with his sleep and physical activity. In a January 2018 VA treatment note, the Veteran’s right shoulder range of motion was measured and showed limitation of forward flexion to 90 degrees and abduction to 90 degrees. Passive range of motion showed limitation of forward flexion to 100 degrees and abduction to 110 degrees. The Board has reviewed the evidence of record, lay and medical, and finds that for the entire rating period from January 6, 2009 until April 30, 2018, the evidence did not meet or more nearly approximate the criteria for a higher rating than 20 percent for the right shoulder disability and a higher rating than 30 percent for the left shoulder disability. The Veteran’s left and right shoulder disabilities had been manifested by symptoms of pain, weakness, fatigue, incoordination, and guarding, with episodes of locking that are productive of, at worst, limitation of left shoulder flexion to 60 degrees and abduction to 45 degrees; and limitation of right shoulder flexion to 60 degrees and abduction to 45 degrees. At no point during the entire appeals period did the Veteran exhibit limitation of motion to 25 degrees from the side, warranting the increased rating of a 30 percent or 40 percent disability for the right and left shoulder, respectively. The Board acknowledges the private examination from April 2009 stating that the Veteran had limited range of motion in his left shoulder at 15 degrees, to flexion and abduction between side and shoulder with loss of repetitive use and the right shoulder exhibited limited range of motion at 20 degrees for flexion and abduction, between the side and shoulder with loss of repetitive use. However, the remaining contemporaneous evidence, including the Veteran’s numerous VA examinations from January 2009, October 2012, March 2015, and October 2016; as well as the remaining VA and private treatment records, indicated that the Veteran’s left shoulder had limitation of motion to midway between side and shoulder level. Therefore, the Board finds that April 2009 record has less probative value than other contemporaneous evidence as it is inconsistent with the remainder of the Veteran’s medical records. The Board has considered additional limitation of function due to pain during flare-ups and after repeated use over time. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca, 8 Vet. App. at 206-07. In this regard, the Board notes that the Veteran, in describing the symptoms of his flare-ups, reported symptoms of not being able to lift and carry items that weighed, at worst, 10 pounds; nor was he able to work with his arms above shoulder level for a prolonged period of time. The Board does not find that this would be equivalent to a range of motion limited to 25 degrees of flexion or abduction for either shoulder. Regarding pain after repeated use over time, the Board notes that the Veteran’s repetitive use testing did indicate a reduction in range of motion after repetitive use during the October 2012 VA examination; and in March 2015, he was unable to perform repetitive range of motion movements due to increased shoulder pain. However, even when considering weakness and pain after repeated use, the Veteran still had range of motion greater than 25 degrees in his left shoulder. The Board has also considered other Diagnostic Codes which may be assigned for disabilities to the shoulder based on ankylosis of the shoulder joint or an anatomical deformity such as an impairment of the humerus, clavicle or scapula. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. On review, the evidence has not demonstrated, and neither the Veteran nor his representative have contended, that any of the evidence of record supports a rating under Diagnostic Codes 5200 and 5202. There have been no reports of ankylosis in the Veteran’s left shoulder, with the exception of the private treatment note from April 2009 that was found less probative, as discussed above, and there is no evidence of a disability to the humerus. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202. As such, the Board finds no basis to grant a rating based on one of these other Diagnostic Codes. The Board notes that in October 2016, the Veteran’s clavicle or scapula condition was found to effect range of motion of the glenohumeral joint, and tenderness on palpation of the AC joint was found. However, to assign a separate, additional rating under Diagnostic Code 5203 would constitute pyramiding. That is, the impairment of function to the left and right shoulders under Diagnostic Codes 5201 and 5203 are overlapping. The manifestations of left and right shoulder disabilities are not shown to be separate and distinct in this case. Evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. Thus, a separate, additional 20 percent evaluation for the left and right shoulders are not warranted under Diagnostic Code 5203. Further, while separate disability ratings are not warranted under Diagnostic Codes 5201 and 5203, as this would violate VA’s regulation against pyramiding, the Board has considered both applicable Diagnostic Codes to determine which rating would provide him with a higher rating. As the Veteran is already in receipt of a 20 percent and 30 percent rating for the period prior to April 30, 2018 for the right and left shoulders, respectively, a rating for impairment of the clavicle or scapula would not be appropriate as the maximum rating is 20 percent and would result in no rating change or a rating decrease. 38 C.F.R. § 4.71a, Diagnostic Code 5203. Therefore, the application of Diagnostic Code 5203 is not warranted. The Board notes that for the period beginning on April 30, 2018, the Veteran is in receipt of a 40 percent rating for his left shoulder disability and of a 30 percent rating for his right shoulder disability, which are the maximum ratings that may be assigned under Diagnostic Code 5201. Upon consideration of other diagnostic codes, review of the evidence also showed that no other diagnostic codes may be assigned for disabilities to the shoulder based on ankylosis of the shoulder joint or an anatomical deformity such as an impairment of the humerus. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202. Again, as discussed above, the Veteran may not receive a separate disability rating under Diagnostic Code 5203 as this would violate the rule against pyramiding; and result in no change or a decreased disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5203. Resolving reasonable doubt in favor of the Veteran, for the entire rating period on appeal, the Board finds that a rating of 30 percent, but no greater, for the left shoulder disability; and a rating of 20 percent, but no greater, for the right shoulder disability, under Diagnostic Codes 5003-5201 have met. 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability prior to October 9, 2008 (TDIU) Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1) (2017). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Factors to be considered are the veteran’s education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (2015) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321 (b), 3.340, 3.341, 4.16(b), 4.19. The Board notes that the Veteran’s service-connected disability ratings met the percentage requirements for TDIU starting on December 14, 2007. On December 14, 2007, he had a total disability rating of 90 percent and was assigned the following: residuals, compression fracture L2 at 40 percent; chondromalacia, left patella with osteoarthritis at 30 percent; chondromalacia, right patella with osteoarthritis at 30 percent; ankylosis, right index finger at 10 percent; left shoulder arthritis at 10 percent; right shoulder arthritis at 10 percent; and hypertension at 10 percent. The Board notes the Veteran is in receipt of a 100 percent disability rating as of October 9, 2008. As TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating renders moot the issue of entitlement to TDIU for the period when the 100 percent rating is in effect. VAOPGCPREC 6-99; 64 Fed. Reg. 52,375 (1999). Therefore, the period on appeal is from December 14, 2007 to October 9, 2008. VA treatment and private treatment records from the entire period of appeal does not show the Veteran was unable to work, nor did the Veteran report that he was incapable of performing the physical and mental acts required by employment. As the preponderance of the evidence shows that the Veteran’s service-connected disorders for the appeal period from December 14, 2007 to October 9, 2008 did not render him unable to maintain or follow a substantially gainful employment, the appeal is denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs