Citation Nr: 1807367	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  12-08 606	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for the period prior to March 2, 2010 and subsequent to July 1, 2010, for right shoulder tendon derangement with impingement and mild hypertrophic change, arthritis, and tendonitis, status post-surgical repair (right shoulder disability).

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:	Barbara B. Harris, Attorney


ATTORNEY FOR THE BOARD

L. Pelican, Counsel


INTRODUCTION

The Veteran served on active duty in the Coast Guard from September 1999 to June 2001, and was awarded the Coast Guard Pistol Marksmanship Ribbon.

This case comes before the Board of Veterans' Appeals (the Board) from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

This case was remanded by the Board for in June 2017 for additional development.  

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's right shoulder disability is manifested by limitation of motion to shoulder level; movement is possible to well above midway between shoulder level and the side of the body.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 20 percent for a right shoulder disability are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.655, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a March 2009 letter.  38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017).  

Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports.

This claim was remanded in June 2017 to obtain outstanding VA and private medical records and afford the Veteran a new examination.  The RO obtained outstanding VA medical records and sent the Veteran a letter requesting he authorize the release of any pertinent private treatment records, but received no response.  Additionally, the Veteran was afforded a VA shoulder examination in October 2017.  Accordingly, there has been substantial compliance with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998). 

Increased Rating - Right Shoulder Disability

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1 (2017).  Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and evaluating functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The Veteran is right handed; thus the ratings pertaining to the major arm apply.  The Veteran's right shoulder disability is rated under Diagnostic Code 5201 which provides a 20 percent disability rating for limitation of the major arm to shoulder level, a 30 percent disability rating for limitation of the major arm to midway between side and shoulder level, and a 40 percent disability rating for limitation of the major arm to 25 degrees from the side.

The April 2009 VA joints examination report indicates the Veteran reported pain, weakness, and stiffness, especially when working overhead.  The Veteran endorsed occasional heat and warmth, and denied swelling.  He denied instability and locking, but reported easy fatigability and lack of endurance.  The Veteran indicated he experienced flare-ups that occurred daily because of working overhead.  

Active and passive range of motion testing was performed.  Upon initial active motion testing, the Veteran had flexion to 132 degrees, abduction to 150 degrees; external rotation to 90 degrees, and internal rotation to 46 degrees.  Repetitive testing revealed flexion to 137 degrees, abduction to 153 degrees, external rotation to 90 degrees, and internal rotation to 60 degrees.  The Veteran had pain and decreased range of motion with repetitive testing.

During the August 2013 VA shoulder examination the Veteran reported not having worked in his previous job since he underwent shoulder surgery in 2010.  He endorsed flare-ups, and said his shoulder was sore all the time.  He said repetitive movement hurt, and that it really hurt when he moved his arm out to his side.  

Range of motion testing showed flexion to 110 degrees with pain at 60 degrees and abduction to 95 degrees with pain at 60 degrees.  Repetitive testing showed flexion to 95 degrees and abduction to 90 degrees.  The examiner observed that the Veteran had less movement than normal, weakened movement, and pain on movement.  The examiner also indicated the Veteran was unable to perform his regular occupation as an electrician due to his inability to work overhead with his dominant hand.

The June 2016 VA examination report notes the Veteran had not received VA treatment for his shoulder since 2011.  He endorsed flare-ups, and said his shoulder constantly hurt and was unusable above a certain level.  

Range of motion testing revealed flexion to 100 degrees, abduction to 90 degrees, external rotation to 60 degrees with pain, and internal rotation to 60 degrees with pain.  The Veteran was unable to lift weighted objects over his head.  No additional functional loss or limitation of motion was noted upon repetitive testing.  However, the examiner observed that the Veteran had less movement than normal, weakened movement, and pain on movement.  The examiner also indicated the Veteran was functionally limited from lifting heavy objects overhead.  

According to the October 2017 VA examination report, the Veteran reported he experienced flare-ups.  He said anytime he moved his shoulder it popped and grinded.  The Veteran indicated his shoulder was "not too bad" at chest height or lower, but said otherwise he cannot lift or carry anything with that arm, and cannot work overhead at all with it.  He said he occasionally felt pain at night if he rolled over on it.

Upon range of motion testing the Veteran demonstrated flexion to 95 degrees, abduction to 95 degrees, external rotation to 45 degrees, and internal rotation to 85 degrees.  The Veteran experienced pain in all ranges of motion.  There was evidence of pain with weight bearing, and objective evidence of crepitus.  Repetitive testing revealed flexion to 90 degrees; abduction to 95 degrees; external rotation to 40 degrees; and internal rotation to 85 degrees.  The examiner stated that pain and weakness significantly limited the Veteran's functional ability with repeated use over time.  

The examiner indicated that the overall impact of the Veteran's shoulder disability was that he was unable to perform heavy lifting or carrying, and was unable to work overhead.  The examiner added that these limitations rendered the Veteran unable to be gainfully employed as an electrician, the trade in which he previously worked, and affected the Veteran's daily activities.  

Although the April 2009 and October 2017 VA examination reports note significant limitation of motion on internal rotation and external rotation respectively, at no time was the Veteran's right arm limited to 45 degrees to the side in flexion or abduction, as required for a higher 30 percent rating under Diagnostic Code 5201.  

The Board also considered the affect the Veteran's flare-ups have on his right shoulder functioning.  The Veteran reported that his shoulder was "not too bad" at chest level or lower, and that he could not work overhead at all with it.  See April 2009 and October 2017 VA examination reports.  However, these statements indicate the range of motion has not been limited to midway between the side and shoulder level; thus a higher rating based on the Veteran's flare-ups is not warranted.  

The Board also considered whether Diagnostic Codes 5200, 5202 and 5203 were applicable in this case.  There is no evidence of ankylosis, flail shoulder, false flail joint, fibrous union or malunion of the humerus, recurrent dislocation of the humerus, dislocation, nonunion, or malunion of the clavicle or scapula.  Accordingly, Diagnostic Codes 5200, 5202, and 5203 are not applicable.

In summary, a rating in excess of 20 percent for a right shoulder disability is not warranted.

Extraschedular Consideration

The Veteran and his representative assert that an extraschedular rating is warranted for the Veteran's right shoulder disability.  See May 2014 Third Party Correspondence.

Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  The regulations provide that an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2017); see also, Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The first of the three elements of an extraschedular rating under § 3.321(b)(1) is a finding of either the RO or the Board that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate."  See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009).  In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability."  Thun, 22 Vet. App. at 115.  "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required."  Id.

Turning to the first step of the Thun extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's right shoulder disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The Board finds that the schedular rating criteria contemplate the Veteran's right shoulder disability and the symptoms associated with such disability including pain and painful motion, weakness, stiffness, easy fatigability, lack of endurance, and an inability to lift or carry with the right arm.  The schedular rating criteria pertaining to the Veteran's right shoulder disability provide for ratings based on limitation of motion, including due to pain and other orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors such as weakness, incoordination, and fatigability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995) (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet.App. 472 (2016) (38 C.F.R. § 4.59 is limited by the Diagnostic Code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell, 25 Vet. App. at 45 (Footnote 2) and Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatologies of the ailments).

In this case, considering the lay and medical evidence, the right shoulder disability has been manifested by pain, painful motion of the right shoulder, weakness, stiffness, easy fatigability, lack of endurance, and an inability to lift or carry with the right arm; these findings and symptoms are contemplated by the schedular rating criteria.  Stiffness is considered as similar to pain or painful motion, as it similarly limits motion; such limitation has also been considered in assigning the schedular rating.  Id.  Lifting and carrying of day-to-day objects requires movement of the shoulders.  As such, to the extent that lifting involves shoulder flexion, abduction, or internal rotation, such movements are explicitly part of the schedular rating criteria.  See 38 C.F.R. § 4.71a, DCs 5200, 5201, 5202, Plate I.  To the extent that lifting and carrying causes incidental shoulder pain, such pain is considered as part of the schedular rating criteria, to include as due to orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors such as weakness or weakened movement, incoordination, and fatigability, which are incorporated into the schedular rating criteria as applied to the particular diagnostic code.

Because the schedular rating criteria are adequate to rate the Veteran's right shoulder disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards.


ORDER

An evaluation in excess of 20 percent for a right shoulder disability is denied.


REMAND

The Veteran seeks entitlement to TDIU.

The Veteran is service-connected for major depressive disorder, which was rated as 100 percent disabling from November 18, 2013.  Service connection is also in effect for right shoulder tendon derangement with impingement and mild hypertrophic change, arthritis, and tendonitis, status post-surgical repair (20%); thoracolumbar strain (20%); and chronic strain of the cervical paraspinous muscles (10%).  The combined evaluation for the Veteran's service-connected disabilities was 40 percent prior to November 18, 2013, and 100 percent as of that date.  See 38 C.F.R. § 4.25 (2017).  In Bradley v. Peake, the Court of Appeals for Veterans Claims held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation.  See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate)).

Under the applicable criteria, a TDIU may be awarded where the schedular rating is less than total and when it is determined that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).  Under § 4.16(a), if there is only one service-connected disability, it must be rated at 60 percent or more.  If there are two or more disabilities, at least one of those disabilities must be rated at 40 percent or more, and the total combined rating must be 70 percent or more.  Disabilities resulting from common etiology or a single accident, disabilities of one or both of the upper extremities or of the lower extremities, disabilities affecting a single body system, multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war may be considered as one disability in applying the provisions of § 4.16(a).  Despite these requirements, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b) (2017).

Even when the criteria under 38 C.F.R. § 4.16 (a) (2017) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16 (b) (2017).  The Board does not have the authority to assign an extraschedular TDIU in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a) (2017).

For a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes his case outside of the norm.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  In adjudicating a claim for TDIU, the Board may not reject the veteran's claim without producing evidence, as distinguished from mere conjecture.  See Friscia v. Brown, 7 Vet. App. 294 (1995).  In Friscia, the Court stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disabilities have on his ability to work. 

The record indicates that the Veteran has completed high school, and his previous work experience consists of physical labor as an electrician's apprentice.  The evidence indicates the Veteran is unable to perform his regular occupation due to his inability to work overhead with his dominant hand.  See, e.g., August 2013 and October 2017 VA examination reports.  In light of the facts, the Board finds that additional development and referral of the TDIU claim for consideration of whether the service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and employment history is warranted.  

Thus, the Board refers the Veteran's TDIU claim to the Director of the Compensation Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b) (2017).

Accordingly, the case is REMANDED for the following actions:

1.  Forward the Veteran's claims file to an appropriate clinician to assist in determining the effect of his service-connected disabilities (right shoulder tendon derangement with impingement and mild hypertrophic change, arthritis, and tendonitis, status post-surgical repair; thoracolumbar strain; and chronic strain of the cervical paraspinous muscles), individually or jointly, on his ability to obtain or maintain substantially gainful employment.  The claims file and all other pertinent records should be made available to the clinician.

The clinician should address the functional and occupational impairment due to the service-connected disabilities as they relate to the ability to function in a work setting and to perform work tasks, including sedentary and physical tasks.  The examiner should take into consideration the Veteran's level of education, special training, and previous work experience, but not age or any impairment caused by nonservice-connected disabilities.

The examiner should set forth a complete rationale underlying any conclusions drawn or opinions expressed.

2.  Submit the case to the Director of the Compensation Service for consideration of an extraschedular evaluation for TDIU under 38 C.F.R. § 4.16(b) (2017).

3.  Thereafter, readjudicate the Veteran's claim.  If the determination is unfavorable to the Veteran, he and his representative should be furnished a Supplemental Statement of the Case which addresses all evidence associated with the claims file since the last statement of the case.  The Veteran and his representative should be afforded the applicable time period in which to respond.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs