Citation Nr: 18156050 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 09-18 505 DATE: December 6, 2018 ORDER An initial 20 percent evaluation, but no higher, for lumbar spine degenerative disc disease (DDD) throughout the appeal period is granted. An initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period prior to November 5, 2016, and in excess of 70 percent thereafter, is denied. A 20 percent evaluation, but no higher, for right rotator cuff tear, post arthroscopic surgery, with instability and scar for the period beginning August 12, 2014, but no earlier, is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 4, 2015, is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s thoracolumbar spine is shown to have a limitation of motion to 60 degrees; the Veteran’s thoracolumbar spine, however, is not shown to be limited to 30 degrees or less, to be ankylosed, nor was the Veteran shown to have at least 4 weeks of incapacitating episodes or physician-prescribed bedrest during the appeal period. 2. Although the Veteran’s psychiatric disability results in occupational and social impairment with reduced reliability and productivity during the period prior to November 5, 2016, the evidence of record does not demonstrate that the Veteran had suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or inability to establish and maintain effective relationship, which resulted in occupational and social impairment with deficiencies in most areas during that period. 3. Throughout the appeal period, the evidence of record does not demonstrate that the Veteran had gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, which resulted in total occupational and social impairment. 4. Beginning August 12, 2014, but no earlier, the Veteran’s right shoulder is shown to be limited to shoulder level; however, throughout the appeal period, the Veteran’s right shoulder is not shown to have limitation to midway between the side and shoulder level, nor is there evidence of ankylosis of the scapulohumeral articulation, loss of head of the humerus (flail shoulder), nonunion of the humerus (false flail joint), fibrous union of the humerus, malunion of the humerus, recurrent dislocation of the scapulohumeral joint, or dislocation, nonunion, or malunion of the right clavicle or scapula. 5. The evidence of record prior to June 4, 2015, does not demonstrate that the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent evaluation, but no higher, for lumbar spine DDD throughout the appeal period are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Diagnostic Codes 5242, 5243. 2. The criteria for an initial evaluation in excess of 50 percent for PTSD prior to November 5, 2016, and in excess of 70 percent for the period beginning November 5, 2016, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 3. The criteria for a 20 percent evaluation, but no higher, for right shoulder cuff tear, post arthroscopic surgery with instability and scar for the period beginning August 12, 2014, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.69, 4.71, Diagnostic Codes 5200-5202. 4. The criteria for entitlement to TDIU prior to June 4, 2015, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from September 1997 to April 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2006, July 2014, and February 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Board reflects that during the appeal, in a March 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 20 percent rating increase for service-connected lumbar spine DDD, effective July 31, 2015. Likewise, the AOJ awarded a 70 percent evaluation, effective November 5, 2016, for PTSD in a July 2018 rating decision. Finally, the AOJ also increased the Veteran’s right shoulder disability to 20 percent disabling, effective May 18, 2016, in an October 2017 rating decision. The Board has recharacterized these issues as above in order to comport with those awards of benefits. Finally, the Veteran also initially appealed his assigned initial evaluation for hemorrhoids in this case; the AOJ issued a March 2009 statement of the case as to that issue, and the Veteran timely completed appeal of that issue in a May 2009 substantive appeal, VA Form 9. However, in a March 2016 rating decision, the AOJ awarded the Veteran an initial 20 percent evaluation for his hemorrhoids since April 27, 2006—the date on which service connection has been granted; the Board reflects that such is the highest possible evaluation under Diagnostic Code 7336, and therefore such an award is a full award of benefits sought on appeal at this time with respect to the Veteran’s service-connected hemorrhoids and the Board will no longer address that issue in this decision. Increased Ratings Claims Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Lumbar Spine Disability The Veteran filed his claim for service connection for a lumbar spine disability in April 2006, and service connection for a lumbar spine disability has been in place April 27, 2006, which is the date following his discharge from service. Throughout the appeal period, the Veteran’s lumbar spine disability has been assigned a 10 percent evaluation for the period of April 27, 2006 through July 30, 2015, under Diagnostic Code 5242, and beginning July 31, 2015, as 20 percent disabling under Diagnostic Code 5243. Diagnostic Code 5242 refers the rater to the General Rating Formula for Diseases and Injuries of the Spine, which provides a 10 percent evaluation for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Alternatively, the Veteran’s lumbar spine disability may be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes, which assigns a 10 percent evaluation with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). Turning to the evidence of record, the Veteran’s service treatment records shows the Veteran reported and received treatment for low back pain since 2001, including in November 2001, April 2004, and August 2005. Post-service VA treatment records reflect treatment for low back pain. See generally, 2007 to 2011 VA Treatment Records. For example, on November 17, 2006, the Veteran had minor tenderness in his spine with a flexion of 60 degrees, with no abnormal curvature, and a negative straight leg raise. In July 2007, the Veteran displayed a normal gait, motor strength, and range of motion with no swelling, tenderness, or neurological signs noted. See July 2007 FTOPC Physician Note. He also reported a decrease in social and recreational activity. Id. Similarly, in December 2007, the Veteran displayed a normal range of motion in his joints, with no swelling, tenderness, warmth, or erythema. See December 2007 FTOPC Physician Note. He also had a normal gait and a negative straight leg raise. Further, there were no neurological signs noted. Id. In December 2010, the Veteran reported that he received treatment since 2006 with little relief from injections, and requested an increased rating. See December 2010 Statement in Support of Claim. He further reported a significant increase in back pain since exiting service. See January 2011 Authorization for Release of Information. The Veteran was afforded a January 2011 VA examination, where he exhibited a normal posture and steady gait without an assistive device; a preserved spinal contour; no radiating pain, guarding of movement, or weakness; normal muscle tone and musculature; and no atrophy and ankylosis. He showed symptoms of muscle spasms, described as tight paraspinals that did not produce an abnormal gait. In the neurological exam, the Veteran presented symptoms of tenderness and muscle spasms, a decreased range of motion, and painful active motion. In the initial and repetitive range of motion testing, the Veteran displayed a flexion of 80 degrees, extension of 25 degrees, right and left lateral flexion of 25 degrees, and right and left rotation of 20 degrees, with no additional degree of limitation. The examiner found that the Veteran’s lumbar spine DDD mildly affected his occupation and daily activities. Subsequently, the Veteran continued to receive treatment for low back pain. See generally 2011 to 2015 FTOPC Physician Notes. For example, in 2013, the Veteran was treated for low back pain with radiation to the left hip and left toe numbness and upon examination showed minor tenderness, a negative straight leg raise, and a full range of motion in the left hip. See December 2013 FTOPC March 2014 Physician Note-Interim History. In 2014, the Veteran was treated and assessed with low back pain and muscle spasms with standing over three hours and displayed minor tenderness and a negative straight leg raise upon examination. See FTOPC March 2014 Physician Note-Interim History. The Veteran also reported radiating pain, but upon examination he displayed minor tenderness, a negative straight leg raises and a full range of motion in the left hip. See March 2014 FTOPC Physician Note-Interim History. In 2015, the Veteran was also treated for chronic low back pain including degenerative joint disease, and upon examination displayed minor tenderness and a negative straight leg raise. See March 2015 FTOPC Physician Note-Interim History. In an July 2015 VA examination, the Veteran displayed an initial range of motion with a forward flexion of 60 degrees, extension of 20 degrees, right lateral flexion of 20 degrees, left lateral flexion of 15 degrees, right and left lateral rotation of 20 degrees, with pain. With repeated use the Veteran displayed a forward flexion of 60 degrees, extension of 20 degrees, right and left lateral flexion of 20 and 15 degrees, and a right and left lateral rotation of 20 degrees. The examination further revealed no additional range of motion limitation; however, there was functional loss, described as a less movement than normal, pain with movement, and disturbance of locomotion. The examiner found no radiculopathy or other neurological abnormalities, arthritis, or IVDS. The Veteran also did not present signs of guarding and symptoms of muscle spasms or atrophy that resulted in an abnormal gait or spinal contour. The examiner explained that the lumbar spine DDD caused no impact on the Veteran’s ability to work. Similarly, after July 31, 2015, the VA treatment record reflects treatment for chronic low back pain and muscle spasms. See generally July 2015 to 2018 FTOPC Physician Note-Interim History. In 2015, the Veteran had occasional spasms with minor tenderness and a negative straight leg raise upon examination. See August 2015 FTOPC Physician Note-Interim History. The Veteran reported that he was living in stable housing and was not worried about future housing. In November 2016, the Veteran was treated for low back pain and upon examination showed minor tenderness. See November 2016 FTOPC Physician Note-Interim History. In a June 2017 six-month follow-up, the Veteran presented with low back pain and upon examination had a full range of motion bilaterally in the lower extremities. He had a normal gait. See June 2017 FTOPC Physician Note-Interim History In a June 2017 VA exam, the Veteran reported no functional loss or flare-ups due to lumbar spine DDD. The Veteran displayed an initial range of motion with a forward flexion of 90 degrees and 30 degrees in all other planes. He did not display any additional functional loss with repetitive use, or any pain, weakness, fatigability or incoordination that caused significant limitation with repeated use over time. The Veteran also showed no guarding, muscle spasms, no radiculopathy, no ankylosis, and no other neurological abnormalities. He also did not display IVDS episodes requiring bed rest. Finally, the Veteran displayed no pain on passive range of motion testing and when the joints were used in non-weight bearing. The examiner found that the Veteran’s ability to work was affected by difficulties sitting and standing for long periods, and walking long distances. Similarly, in July 2018, the Veteran was treated for low back pain and exhibited no radiculopathy and tenderness and a normal gait, but did have symptoms of deeper pain. See July 2018 FTOPC Physician Note-Interim History. In a July 2018 VA examination, the Veteran reported flare-ups and difficulty with daily activities, such as boxing, playing with his child, and mowing the lawn. During examination, the Veteran exhibited a forward flexion of 60 degrees, extension of 20 degrees, right lateral flexion of 15 degrees, left lateral flexion of 10 degrees, right and left lateral rotation of 10 and 15 degrees. He did not display additional functional loss due to a painful range of motion or weightbearing. With repetitive use, the Veteran displayed no functional loss. The examiner found that repeated use over time and flare-ups were consistent with the Veteran’s statements describing functional loss. However, the examiner found that pain, weakness, fatigability or incoordination did not significantly limit the Veran’s ability with repeated use over time. The Veteran’s range of motion with repeated use over time and flare-ups was a forward flexion of 50 degrees, an extension of 20 degrees, a right lateral flexion of 15 degrees, a left lateral flexion of 10 degrees, a right lateral rotation of 20 degrees, and a left lateral rotation of 15 degrees. The Veteran exhibited muscle spasms that did not result in an abnormal gait or abnormal spinal contour. He presented normal muscle strength without any atrophy, radiculopathy, ankylosis, IVDS, or pain with non-weightbearing. In addition, the Veteran displayed the same active and passive range of motion and a negative bilateral straight leg raise. The examiner explained that the Veteran should avoid employment that requires prolonged sitting/standing or repetitive bending at the waist. He also remarked that the prior examinations commonly showed muscle spasms and tenderness, despite the Veteran’s contentions of significant pain and limitations; thus, the prior examiners did not support the position that the Veteran’s condition would cause significant limitation to function or occupational endeavors. Based on the foregoing evidence, the Board finds that a 20 percent evaluation, but no higher, is warranted throughout the appeal period. As noted above, the Veteran was noted to have 60 degrees of flexion in a November 2006 VA treatment record and in the subsequent 20015, 2017, and 2018 VA examinations. Although the Veteran had 80 degrees of flexion during the January 2011 VA examination, the Board finds that the other evidence of record demonstrates that the Veteran’s forward flexion throughout the appeal period more closely approximates to 60 degrees. Such is commensurate to a 20 percent evaluation throughout the appeal period under Diagnostic Code 5242. The Board, however, finds that an evaluation in excess of 20 percent is not warranted at any time during the appeal period. The evidence of record does not demonstrate that the Veteran’s thoracolumbar spine is at any time during the appeal period shown to be ankylosed, nor does the evidence document that his forward flexion was to 30 degrees or less. The Board further notes that although the AOJ appears to have awarded a 20 percent under Diagnostic Code 5243 in this case, the evidence throughout the appeal period does not document that the Veteran has at any time had any periods of physician-prescribed bedrest. In any event, the evidence is clear that the Veteran did not experience at least 4 weeks of incapacitating episodes at any time during the appeal period. Accordingly, as the Veteran is shown to have limitation of flexion of the thoracolumbar spine to 60 degrees throughout the appeal period, a 20 percent evaluation is warranted throughout the appeal period; a higher evaluation is not warranted, however, as there is no evidence of a limitation of flexion to 30 degrees or less, any ankylosis of the thoracolumbar spine, or at least 4 weeks of incapacitating episodes or physician-prescribed bedrest. A 20 percent evaluation, but no higher, is therefore warranted throughout the appeal period and to that extent the Veteran’s claim is granted. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243. PTSD The Veteran filed his claim for service connection for a psychiatric disability on May 4, 2011, and service connection for PTSD has been in place since that date. Throughout the appeal period, the Veteran’s psychiatric disability has been assigned a 50 percent evaluation for the period of May 4, 2011 through November 4, 2016, and beginning November 5, 2016, as 70 percent disabling. Those evaluations have been assigned under Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. See Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116 In an August 2011 VA record, the Veteran was noted to have no psychiatric imbalance at that time, and he was described as pleasant, calm and cooperative. The Veteran initially underwent psychiatric VA examination in August 2011, at which time he was diagnosed with PTSD. On examination, the Veteran’s orientation was within normal limits and his appearance, hygiene, and behavior were appropriate; he had good eye contact, although his affect and mood were flattened. His communication and speech were within normal limits, although he reported some distractability problems and was noted to have impaired attention and/or focus. He had panic attacks that occurred less than once a week. He had signs of suspiciousness, noting that he does not trust anyone and found it difficult to be around people most of the time resulting in having no friends and that he trusts no one most of the time. He denied a history of delusions or hallucinations and none were noted on examination; obsessive-compulsive behavior was observed, although it did not interfere with his routine activities. His thought processes were appropriate, his judgment was not impaired, his abstract thinking was normal, although his memory was moderately impaired. He did not have any suicidal or homicidal ideations. The examiner noted that the Veteran had a master’s degree in human science and a BA in history; he was working in security at that time, and noted that he had a good relationship with his supervisor and co-workers. The examiner finally indicated that the Veteran had depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, and difficulty establishing and maintaining effective work/school and social relationships; the examiner concluded that the Veteran’s psychiatric disability resulted in social and occupational impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self-care and normal conversation. In June 2014, the Veteran underwent a VA psychiatric examination, at which time he was diagnosed with PTSD. The examiner noted that the Veteran had the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions, or recent events, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner found that the Veteran arrived early, was causally and appropriately dressed, reflecting good hygiene. He was cooperative and friendly, with clear speech of normal rate and volume; his thoughts were logical, goal-directed, and void of evidence of a thought disorder, or auditory or visual hallucinations. He described his mood as irritable, noting that he could be okay one minute and then “flip.” His affect was appropriate. He had mildly increased (restlessness) psychomotor activity with good insight and judgment; he denied suicidal ideation, intent, or plan. The Veteran additionally noted that he would occasionally have overly aggressive behaviors while working his security job, and other officers would tell him to “cool it.” He also indicated that he noticed irritability triggered by the perception of being judged or talked down to; he got very irritable and agitated when others looked down on him or treated him like he did not know anything. He was noted as living with his wife and 5 children; he was noted to be working in a security job at that time after graduating with an MA degree in 2012. The examiner concluded that the Veteran’s psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran underwent initial psychiatric evaluation for treatment at VA in August 2014, at which time he was noted to have depressive symptoms, anger problems including irritability, although he was able to work, and sleep problems. On examination, the Veteran had good grooming, appropriate dress, and was cooperative with appropriate eye contact. His speech rate and volume were normal, and he did not have any psychomotor or compulsive, ritualistic or stereotypical behaviors. His mood was mildly anxious with a pleasant affect. He was alert and oriented to person, time, place, and purpose of the visit. His remote and immediate memories were intact. He had logical, coherent, and goal-directed thoughts and speech. He did not have any loosening of associations, flight of ideas, perseverations, auditory or visual hallucinations, illusions, delusions, ideas of reference, paranoid ideation, dissociation, obsessive thoughts, phobic reactions, suicidal ideation, or homicidal ideation. The Veteran had fair insight, judgment, and impulse control. In his September 2014 Notice of Disagreement, the Veteran indicated that his PTSD had increased and that he was now talking Zoloft, and seeing a psychiatrist. He indicated that he had problems neglecting his personal appearance and hygiene, and that his speech was intermittently illogical, obscure or irrelevant. The Veteran also underwent VA psychiatric treatment in April 2015, at which time he reported hypervigilance, some lock checking, and difficulty with intimacy; he denied frequent nightmares, flashbacks, or foreshortening of life. He also reported occasional low mood, but not every day, anhedonia, diminished sleep, and low energy, although his libido, concentration, and appetite were intact. He denied psychotic symptoms. He was noted to be working as a high school teacher at that time. On examination, the Veteran was casually dressed; he did not have any noted abnormal movements. His speech was regular in rate and volume and was goal-directed. His attitude and mood were fair, with a neutral affect. He denied any suicidal or homicidal ideations; there was no evidence of hallucinations or delusions, obsessions, compulsions, phobias, or panic attacks. His judgment and insight were fair. The Veteran was continued on Zoloft at that time. The Board generally notes that the balance of the VA treatment records associated with the claims file throughout the appeal period are substantially similar to those noted above. Finally, the Veteran underwent a VA psychiatric examination on November 5, 2016, at which time he was diagnosed with PTSD and noted to have the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, obsessional rituals which interfere with routine activities, and impaired impulse control. The examiner found that the Veteran’s psychiatric symptomatology resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran indicated that he was currently working at a school, teaching gifted and talented students; he indicated that the year before he was a “coordinator” for the school. Based on the foregoing evidence, the Board finds that the Veteran’s claim for increased evaluation must be denied in this case. Specifically, for the period prior to November 6, 2015, the Board reflects that the Veteran is shown to have a flattened affect, panic attacks, impairments of memory, abstract thinking and judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, which results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. However, during that period, the Veteran is not should have suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or inability to establish and maintain effective relationships. Although the Board acknowledges the Veteran’s statements during the appeal that he neglects his personal appearance and hygiene and that he had intermittently illogical, obscure, or irrelevant speech, the Board finds that the evidence of record does no support the Veteran’s assertions in this case. The Veteran was routinely found to be appropriately groomed and dressed throughout the appeal period. Likewise, his speech was routinely noted as normal, clear and goal-directed. The Board finds the multitude of examiners’ findings in this case to be more probative than the Veteran’s bias self-assessment in this case. Rather, the first evidence of any symptomatology that is commensurate of the criteria necessary for a 70 percent evaluation in this case is during the November 5, 2016 VA examination, when he was noted to have impaired impulse control and obsessional rituals that interfered with routine behaviors. Prior to that examination, the Veteran’s psychiatric symptomatology is not demonstrable of the type of symptomatology on which the Board can assign an increased evaluation in this case. Additionally, for the period beginning November 5, 2016, the Veteran is not shown to have gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, at any time during that period. Likewise, no examiner throughout the appeal period has assessed the Veteran’s has having social and occupational impairment that results in deficiencies in most areas or as total occupational and social impairment in this case. In fact, the examiners in this case have routinely found that the Veteran’s psychiatric impairment only results in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, even when there was the presence of more severe symptoms in the November 2016 VA examination. Moreover, the Veteran is shown, generally, to be working or volunteering either in security or as a teacher throughout the appeal period, without any problems interacting with either his co-workers or the children that he teaches. The Board finds that this evidence, particularly the VA examiners’ findings and conclusions, to be the most probative evidence of record. Consequently, the Board cannot find that the Veteran’s occupational and social impairments result in deficiencies in most areas for the period prior to November 5, 2016, and the evidence does not demonstrate that the Veteran has total occupational and social impairment at any time during the appeal period. Accordingly, the Board must deny the Veteran’s claim for increased evaluation of his PTSD throughout the appeal period based on the evidence of record at this time. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Right Shoulder Disability Initially, the AOJ determined that the Veteran filed his claim for increased evaluation on May 18, 2016, when he filed an Intent to File. The Board, however, notes that the Veteran filed his claim for increased evaluation of his right shoulder disability on April 29, 2015, in a Fully Developed Claim, VA Form 21-526EZ. Thus, in conjunction with this decision, the Board has considered the evidence since April 29, 2014. See 38 C.F.R. § 3.400(o). Throughout the appeal period, the Veteran has been assigned a 10 percent evaluation for the period prior to May 18, 2016, and 20 percent evaluation for his right shoulder disability for the period beginning May 18, 2016. All evaluations have been assigned under Diagnostic Code 5201. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. In this case, the Veteran’s right upper extremity, including his right shoulder, has been found to be his major or dominant extremity for purposes of evaluation, as shown below by the evidence of record. Under Diagnostic Code 5201, for limitation of motion of the arm, a 20 percent evaluation is warranted for limitation of motion of the major or minor arm at the shoulder if it is limited to shoulder level, or a minor arm with limitation of motion to midway between the side and shoulder level. A 30 percent evaluation is warranted for a major arm with limitation of motion to midway between the side and shoulder level, and for a minor arm with limitation of motion to 25 degrees from the side. Finally, a 40 percent evaluation is warranted for a major arm with limitation of motion to 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Alternatively, Diagnostic Code 5200 provides that ankylosis of the scapulohumeral articulation (the scapula and humerus move as one piece) of the major upper extremity is rated 30 percent when it is favorable, with abduction to 60 degrees and able to reach mouth and head. A 40 percent is assigned with intermediate ankylosis (between favorable and unfavorable); and it is rated 50 percent when unfavorable, with abduction limited to 25 degrees from side. Minor arm evaluations for each of those criteria are 10 percent less than the major arm evaluations. See 38 C.F.R. § 4.71a, Diagnostic Code 5200 and Note. Diagnostic Code 5202 provides a 20 percent evaluation for malunion of the major humerus with a moderate deformity and, and a 30 percent evaluation with a marked deformity; malunion of the minor humerus with either a moderate or a marked deformity warrants 20 percent. A 20 percent evaluation is also warranted for recurrent dislocation of the major humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, and a 30 percent rating is warranted for frequent episodes and guarding of all arm movements; a minor arm with either of those symptoms is evaluated as 20 percent disabling. Impairment of the major humerus is rated at 50 percent if there is a fibrous union, 60 percent if there is nonunion or false flail joint, and 80 percent if there is loss the head of humerus, with flail shoulder. Again, the minor arm with those symptoms is evaluated as 10 percent less than the major arm evaluations. See 38 C.F.R. § 4.71a, Diagnostic Code 5202. Finally, Diagnostic Code 5203 provides a 10 percent evaluation for malunion of the clavicle or scapula or nonunion without loose movement. A 20 percent evaluation is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. Major and minor arms are not evaluated differently under this Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Code 5203. VA treatment records document that in May 2014, the Veteran received a steroid injection in his right shoulder. In an August 12, 2014 VA treatment record, the Veteran was noted to have pain with abduction to 90 degrees. In an October 2014 VA treatment record, the Veteran reported constant pain in his right shoulder, which was sharp in nature and increased with use. He reported difficulty raising his hand overhead due to pain. He denied any dislocation, subluxation, or locking. On examination, the Veteran had 180 degrees of flexion and abduction, with internal rotation to the L5 and external rotation to 50 degrees; all motions with pain. He did not have any edema or effusion, although he was tender to palpitation to the glenohumeral joint. He had slightly decreased motor strength of the right shoulder. He was diagnosed with moderate degenerative joint disease (DJD) of the right shoulder and was given a steroid injection at that time. In March 2015, the Veteran continued treatment for right shoulder pain at VA. The Veteran reported constant pain in his right shoulder joint and difficulty raising his hand overhead, due to pain. On examination at that time, the Veteran had an active range of motion with a forward flexion to 180 degrees, abduction to 170 degrees, and external rotation to 50 degrees, with 4/5 motor strength. In an October 2015 VA treatment record, the Veteran was noted to have full active and passive range of motion of his right shoulder without pain; he did not have any winging of the scapula, sulcus sign, edema, erythema, or warmth. In a December 2016 VA treatment record, the Veteran displayed an active range of motion with a forward flexion of 180 degrees, abduction of 180 degrees, external rotation of 70 degrees, with pain, and no atrophy. Neurologically, the Veteran showed motor strength of 4/5 with forward flexion, abduction, internal and external rotation. In July 2017, the Veteran reported a history of right shoulder pain and difficulty raising his hand above his head. He had flexion to 120 degrees, abduction to 100 degrees, and extension to 60 degrees, all with pain. He also had mild tenderness over the acromioclavicular joint, but no tenderness over the clavicle and deltoid; he also did not have any atrophy. The Veteran finally underwent a VA examination of his right shoulder in August 2017, at which time he was diagnosed with right shoulder impingement with rotator cuff tendonitis. The Veteran reported that he received steroid injections for his right shoulder and that he had right shoulder pain without overhead motion. He was noted to be right-hand dominant on examination. The Veteran denied any flare-ups, although he reported that he cannot lift or use his shoulder for periods of time. On examination, the Veteran had active and passive flexion to 85 degrees, abduction to 80 degrees, external rotation to 55 degrees, and internal rotation to 80 degrees. The examiner noted that he had pain during all ranges of motion except internal rotation, and that he had difficulty with overhead motion. He was able to perform repetitive motion testing, which did not result in any additional functional loss. The Veteran was noted to have mild pain on palpitation of the AC joint, which caused him to wince; he also had pain with weightbearing and crepitus, although there was no pain on non-weightbearing. The examiner noted that the Veteran did not have any additional functional loss due to pain, weakness, fatiguability, lack of endurance, or incoordination. The Veteran had slightly reduced motor strength in forward flexion, but was normal during abduction; he did not have any muscle atrophy or ankylosis of the right shoulder. He had positive Hawkins’ impingement, empty-can, and external rotation/infraspinatus strength testing. Although the examiner noted that the Veteran had a history of mechanical symptoms, the Veteran did not have any history of recurrent dislocation of the glenohumeral joint and his crank apprehension and relocation test was negative. The examiner additionally noted that the Veteran had tenderness on palpitation of the AC joint, although he did not have any clavicle or scapula impairments and his cross-body adduction test was negative. The examiner noted that the Veteran did not have any impairments of the humerus. The Veteran did not need any braces or other assistive devices due to his right shoulder disability; the examiner concluded that the Veteran’s occupational functioning was impacted due to his difficulty with frequent overhead activity. In a November 2017 VA treatment record, the Veteran had active and passive flexion of 150 degrees, extension of 50 degrees, full internal and external rotation, and no atrophy; his motor strength was normal. A January 2018 VA treatment record documented that the Veteran reported chronic pain that was worse with overhead movements and laying on his side which was partially relieved by injections. On examination, he had active and passive flexion of 160 degrees, extension of 30 degrees, full internal and external rotation, and no atrophy; he had normal muscle strength. He elected to continue receiving cortisone shot injections and home exercises at that time, but elected not to attend physical therapy. Finally, in May 2018, the Veteran had forward flexion and abduction of 140 degrees, and external rotation of 30 degrees, all with pain; he did not have any atrophy, and had slightly decreased motor strength at that time. Based on the foregoing evidence, the Board finds that a 20 percent evaluation, but no higher, is warranted beginning August 12, 2014, but no earlier. Initially, the Board reflects that there is no evidence at any time during the appeal period of any ankylosis of the scapulohumeral articulation, nor is there any evidence of loss of head of the humerus (flail shoulder), nonunion of the humerus (false flail joint), fibrous union of the humerus, malunion of the humerus, or any recurrent dislocation of the scapulohumeral joint. Likewise, the Veteran is not shown to have dislocation, nonunion, or malunion of the right clavicle or scapula during the appeal period. Accordingly, Diagnostic Codes 5200, 5202 and 5203 are not applicable in this case. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. Thus, the sole criteria left for the Board to contemplate in this case is Diagnostic Code 5201. As noted above, the Veteran is shown to have abduction limited to 90 degrees during VA treatment on August 12, 2014. Evidence subsequent to that treatment record and throughout the appeal period documents that the Veteran had repeatedly complained of difficulty with motion and pain in overhead use. Accordingly, based on the evidence of record, the Board finds that a 20 percent evaluation is warranted beginning August 12, 2014, as the disability picture from that date forward is demonstrable of an impairment of the right shoulder to shoulder level. However, a higher evaluation than 20 percent is not warranted throughout the appeal period, as the Veteran’s right shoulder is not shown to have significantly limited range of motion that is more closely approximate to midway between his side and shoulder level; the Veteran’s abduction/extension and flexion are generally noted to be around 90 degrees throughout the appeal period and is not otherwise shown to be closer to half that amount of degrees. Consequently, a higher evaluation than 20 percent under Diagnostic Code 5201 is not warranted at any time during this case. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5201. As a final matter, the Board notes that the evidence prior to August 12, 2014, does not demonstrate that a factually ascertainable increase in symptomatology was present, and therefore, as August 12, 2014, is the first date on which it is factually ascertainable that there was a limitation of motion to the right shoulder level, the Board has assigned that effective date in this case. See 38 C.F.R. §§ 3.400(o). Accordingly, as discussed above, the Board finds that a 20 percent evaluation, but no higher, is warranted for the Veteran’s right shoulder disability, for the period beginning August 12, 2014, but no earlier, in this case based on the evidence of record; to that extent, the appeal is granted and in all other respects the appeal is denied. See 38 C.F.R. §§ 3.400(o), 4.7, 4.71a, Diagnostic Codes 5200-5203. Entitlement to TDIU VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. There are two regulatory subsections that allow for a TDIU. The first, called a “schedular TDIU,” is found at 38 C.F.R. § 4.16(a) and requires that certain disability rating percentages be in place. Either the Board or the AOJ can grant a schedular TDIU in the first instance. The second, called an “extraschedular TDIU,” is found at 38 C.F.R. § 4.16(b). It does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance, it must be submitted to VA’s Director, Compensation Service in the first instance. 38 C.F.R. § 4.16(b). The schedular TDIU subsection provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. Id. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Initially, the Board reflects that the Veteran has already been assigned a TDIU beginning June 4, 2015, in this case. Accordingly, the TDIU issue on appeal is for entitlement prior to that date. Additionally, the Board reflects that the Veteran has a combined 50 percent evaluation for his service-connected disabilities prior to May 4, 2011, although beginning that date and thereafter he has a combined 80 percent evaluation or greater. Accordingly, beginning May 4, 2011, the Veteran meets the schedular criteria for entitlement to TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, for the reasoning noted below, the Board finds that entitlement to TDIU must be denied prior June 4, 2015. The Veteran has been assigned the date of entitlement to TDIU beginning June 4, 2015, in this case because he has indicated that was the last date that he worked. In a June 2015 Application for TDIU, VA Form 21-8940, the Veteran indicated that he was working full-time as a teacher until June 3, 2015. The Board reflects that the other evidence of record, particularly the evidence noted above, corroborates the Veteran’s assertions in that Application for TDIU. Consequently, as the evidence of record demonstrates that the Veteran was fully employed prior to June 4, 2015, the Board is compelled to find that, prior to June 4, 2015, the Veteran’s service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment. Accordingly, entitlement to TDIU must be denied for the period prior to June 4, 2015, at this time based on the evidence of record. See 38 C.F.R. §§ 3.102, 4.16. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.Seehusen, Associate Counsel