Citation Nr: 18156729 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 09-30 680 DATE: December 10, 2018 ORDER Entitlement to an evaluation in excess of 20 percent for postoperative right shoulder (major) (right shoulder disability) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to right shoulder disability is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s right shoulder disability was manifested by, or more nearly approximated, recurrent dislocation of the scapulohumeral joint with frequent episodes of dislocation and guarding of all arm movements. There is no indication of malunion of the humerus with marked deformity, fibrous union of the humerus, nonunion of the humerus, or loss of head of the flail joint. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1986 to May 1990. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in November 2016 when they were remanded for further development, to include a new examination. Higher Evaluation for Right Shoulder Disability Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In the case of an increased rating, a claimant may also experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Aside from periods in which the Veteran was assigned temporary total disability ratings during convalescence under 38 C.F.R. § 4.30 (from June 23, 2008 to December 31, 2008 and August 4, 2009 to October 31, 2009), the Veteran’s right shoulder disability is currently rated at 20 percent under Diagnostic Code 5202. The Board notes that the Veteran is right-hand dominant, thus, his right shoulder is considered the major extremity. See 38 C.F.R. § 4.69. With respect to the major extremity, a 20 percent rating is warranted under Diagnostic Code 5202 when there is malunion of the humerus with moderate deformity, or recurrent dislocation of the scapulohumeral joint with infrequent episodes of dislocation and guarding of movement only at the shoulder level. Id. A 30 percent rating is warranted when there is malunion of the humerus with marked deformity, or recurrent dislocation of the scapulohumeral joint with frequent episodes of dislocation and guarding of all arm movements. Id. A 50 percent rating is warranted for fibrous union of the humerus. Id. A 60 percent rating is warranted for nonunion of the humerus (false flail joint). Id. An 80 percent rating is warranted for loss of head of the humerus (flail shoulder). Id. Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Upon careful review of the evidence, the Board finds that the preponderance of the evidence is against assigning a rating in excess of 20 percent at any time during the course of the appeal. Crucially, the evidence of record does not indicate that the Veteran’s disability has been manifested by, or has more nearly approximated, malunion of the humerus with marked deformity, or recurrent dislocation of the scapulohumeral joint with frequent episodes of dislocation and guarding of all arm movements. See 38 C.F.R. § 4.71a, Diagnostic Code 5202. The January 2008 VA examination notes a history of shoulder dislocations and guarding of all movements; however, the medical evidence during that time does not suggest that it was frequent episodes of dislocation. For example, a May 2007 right shoulder x-ray showed a normal right shoulder, as there was no evidence of fracture or dislocation. Medical records dated April 2008 show no tenderness over the acromioclavicular (ACV) joint or pain on adduction. In addition, the Veteran underwent a right shoulder surgery in June 2008, which resulted in improved shoulder movement and decreased pain. During the December 2009 VA examination, the Veteran reported no dislocations and only prior subluxations. No guarding was noted during this examination or during the June 2012 VA examination, which also showed no history of recurrent dislocation (subluxation). Although the June 2017 VA examination showed a history of frequent episodes of recurrent dislocation (subluxation), it only showed guarding of movement at shoulder level. There is no evidence of record that indicates both frequent episodes of dislocation and guarding of all arm movements, which is required for a 30 percent rating based on recurrent dislocation of the dominant arm. See 38 C.F.R. § 4.71a, Diagnostic Code 5202; see, e.g., Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007) (providing that use of a conjunctive “and” in the rating criteria means that all listed criteria must be met). There is also no indication in the record of malunion of the humerus with marked deformity, fibrous union of the humerus, nonunion of the humerus, or loss of head of the flail joint during the periods on appeal so as to warrant a rating in excess of 20 percent for other impairment of the humerus. See 38 C.F.R. § 4.7, Diagnostic Code 5202. The Board has also considered 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. DeLuca, 8 Vet. App. at 206-07. Here, the Veteran’s functional loss and pain have been contemplated by the assigned evaluation of 20 percent disabling under Diagnostic Code 5202. Thus, the currently assigned evaluation adequately compensates the Veteran for pain and functional loss. To the extent that additional functional loss is shown, it does not rise to the level that would enable a finding that the overall disability picture most nearly approximates a higher evaluation. In making all determinations, the Board has fully considered the competent lay and medical evidence of record. It also recognizes that the Veteran is generally deemed credible to report on worsening symptoms and articulate his subjective belief that he is entitled to a higher rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In this case, the Veteran provided numerous lay statements indicating that his right shoulder has worsened, to include complaints of pain and extreme guarding. The Board also acknowledges the contentions of the Veteran’s representative indicating that a new examination is required. However, the Board finds that the relevant VA examinations are well-supported by clinical findings and a full rationale. Each examination report reflects a review of the claims file, a pertinent history and all clinical findings and opinions necessary for proper adjudication of the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Contrary to the assertions made by the Veteran’s representative, the June 2017 VA examiner tested for pain on both active and passive motion, and in weight-bearing and non-weight-bearing in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). While the Board is sympathetic to the Veteran’s complaints of worsening symptoms, the evidence of record does not support a higher evaluation or suggest that a new VA examination is required. The demonstrated impairment of the right shoulder disability does not warrant an evaluation in excess of 20 percent disabling under the applicable rating criteria. Accordingly, as the preponderance of the evidence is against the claim, and the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. Therefore, the Board finds that the Veteran’s claim must be denied. REASONS FOR REMAND TDIU The Veteran asserts that entitlement to a TDIU is warranted. He is only service connected for right shoulder disability, rated as 20 percent disabling. His combined disability rating is 20 percent. Accordingly, he does not meet the percentage threshold requirements set forth under 38 C.F.R. § 4.16(a). Notwithstanding, the Veteran asserts that he is unemployable due to his service-connected disability. While the Veteran currently fails to meet the criteria for a schedular a TDIU, the evidence indicates that he is unemployable due to his service-connected heart disability. In this regard, in the report of the June 2017 VA examination, the examiner indicated that the Veteran’s service-connected disability would cause him functional limitation, as he has difficulties stretching and lifting his arm overhead. Although the June 2012 VA examiner reported the Veteran could secure and maintain gainful employment in sedentary or physical labor type work, the Veteran has reported that he has difficulty holding a steering wheel, decreased mobility, and dexterity and he previously worked as a truck driver. In addition, the evidence available to the Board does not indicate that the Veteran’s past work experience included sedentary employment. Moreover, the Veteran has alleged that his right shoulder pain causes decreased concentration, inappropriate behaviour, poor social interactions, and difficulty following instructions. Given the record on appeal, the Board finds that referral of the TDIU claim to the Director of Compensation Service for extraschedular consideration is warranted. The matter is REMANDED for the following action: 1. Refer the Veteran’s claim for a TDIU to the Director, Compensation Service for a determination under 38 C.F.R. § 4.16(b) and notify the Veteran of such action. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel