Citation Nr: 1818359 Decision Date: 03/26/18 Archive Date: 04/04/18 DOCKET NO. 15-37 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of a chip fracture of the left scapula with arthritis of the left shoulder (left shoulder disability). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1959 to August 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's increased rating and TDIU claims. While the Veteran limited his September 2014 notice of disagreement to the increased rating claim, the Board has included the TDIU issue here in light of his testimony at a November 2017 Board hearing before the undersigned Veterans Law Judge and Rice v. Shinseki, 22 Vet. App. 447 (2009). A hearing transcript has been associated with the record on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. For the entire appeal period, the Veteran's left shoulder disability is manifested by loss of range of motion of the arm, but not to 25 degrees from his side, even in consideration of the Veteran's subjective reports of pain and corresponding functional impairment, without ankylosis of the scapulohumeral articulation, malunion of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union of the humerus, nonunion of the humerus, flail shoulder, dislocation of the clavicle or scapula, or malunion or nonunion of the clavicle or scapula. 3. The Veteran's service-connected disability does not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5201 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Rating Claim The Veteran contends that he is entitled to an increased rating for his left shoulder disability due to pain and his inability to put his arm behind his head, reach around his body, or lift things over his head. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). In the instant case, the record reflects that the Veteran's left shoulder was examined by VA in April 2014, June 2014, October 2015, and November 2016. Upon a review of the VA examination reports, the Board notes that testing with the range of the opposite undamaged joint of the right shoulder (which was actually noted to be abnormal during the 2016 examination) was conducted and it was noted that there was pain with weight-bearing; however, as the Veteran's shoulder is being evaluated, range of motion testing on weight-bearing and nonweight-bearing are inapplicable. Further, while such examinations do not reflect passive range of motion testing, the evidence does not suggest, and the Veteran has not argued, that his range of left shoulder motion would be further limited in such capacity. In fact, as a general matter of course, active range of motion testing usually results in further limitation than passive range of motion testing. See Massie v. Shinseki, 25 Vet.App. 123, 131 (2011); Robinson, supra; Scott, supra. Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran's left shoulder disability has been rated under DC 5010-5201. DC 5010 relates to traumatic arthritis and the schedule of rating musculoskeletal systems advises that such should be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a, DCs 5003, 5010. Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In the absence of limitation of motion, DC 5003 provides for a 10 percent rating with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under DC 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Under DC 5201, limitation of arm motion that is limited to shoulder level warrants a 20 percent rating in the major and minor extremity. Such limitation that is limited midway between the side and shoulder level warrants a 20 percent rating in the minor extremity and a 30 percent rating in the major extremity. Such limitation to 25 degrees from the side warrants a 30 percent rating in the minor extremity and a 40 percent rating in the major extremity. 38 C.F.R. § 4.71a, DC 5201. Normal range of motion in the shoulder is from zero to 180 degrees of forward elevation (flexion) and zero to 180 degrees of shoulder abduction. See 38 C.F.R. § 4.71a, Plate I. The appeal period before the Board stems from the Veteran's claim for an increased rating for his left shoulder disability, which was received by VA on November 22, 2013. Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). After a careful review of the record, the Board finds that a rating in excess of 20 percent for the Veteran's left shoulder disability is not warranted pursuant to DC 5201 as there is no evidence of limitation of the left arm, the minor extremity, to 25 degrees from the side (abduction). Initially, the preponderance of the evidence, including the Veteran's own reports at the November 2017 Board hearing, indicates that he is right handed. As such, the provisions related to the major extremity are not for application in the instant case. Thus, to establish entitlement to a higher 30 percent rating under DC 5201, there must be evidence that the Veteran's ability to lift his arm from the side is limited to 25 degrees. During the entire appeal period, the Veteran's left shoulder forward flexion and abduction were limited to, at worst, 110 and 85 degrees, respectively. See October 2015 VA examination. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to a rating in excess of 20 percent under DC 5201. Specifically, as demonstrated during the April 2014, June 2014, October 2015, and November 2016 VA examinations, the Veteran had pain on motion, but there is no indication that such resulted in additional functional loss aside from loss of forward flexion and abduction during the 2016 examination that still resulted in greater ROM than that recorded at the 2015 examination and well above 25 degrees (105 degrees). Additionally, while the Veteran endorsed flare-ups during the 2016 examination, he described his flare-ups as increased pain (burning, stabbing, throbbing), a symptom compensated by the currently assigned rating. While the Veteran has endorsed pain, weakness, stiffness, fatigability, lack of endurance, and guarded movement, and while the examiners acknowledged functional loss due to such symptoms, the Board finds that they do not more nearly approximate the ability to lift his arm to only 25 degrees from his side. See DeLuca, supra; Mitchell, supra. Therefore, the Veteran is not entitled to a rating in excess of 20 percent under Diagnostic Code 5201. The Board notes the Veteran reported experiencing numbness and tingling in the left arm at the November 2017 Board hearing and, as such, has considered whether the assignment of a separate rating is warranted for neurological impairment related to his left shoulder disability. However, upon a review of the record, the Board finds the Veteran's reports regarding his alleged numbness and tingling lack credibility. In this regard, the Veteran never endorsed numbness and tingling during the four VA examinations conducted during the five-year appeal period, nor did he ever report such symptoms while receiving VA treatment. To the contrary, he specifically denied experiencing upper extremity numbness while receiving VA treatment in April 2014 and May 2014. Moreover, none of the VA examiners noted the presence of a left upper extremity neurologic disorder, despite the opportunity to do so when responding to the question of whether there were any other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran's left shoulder disorder. Thus, given the Veteran's failure to report numbness and tingling while receiving treatment, his denial of such symptoms while receiving treatment, and VA examiners failing to document such symptoms, the Board affords the Veteran's reports regarding experiencing neurological manifestations of his left shoulder disability no probative weight. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the veteran in weighing evidence); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (lack of corroborating contemporaneous evidence may be a factor in determining credibility); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; pecuniary interest may, however, affect the credibility of the evidence). Notably, even if the Veteran believes his recollections to be accurate, the Board finds that the Veteran is simply not a reliable historian as to this aspect of the claim. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). As such, a separate rating for such is not warranted. As the Veteran has been diagnosed arthritis of the clavicle, the Board has considered whether a higher separate rating is warranted for such under DC 5003. However, the clavicle is not listed as either a major joint or a minor joint group under 38 C.F.R. § 4.45. As such, a separate rating is not warranted for arthritis of such, with or without limitation of motion, especially in light of the fact the painful motion being described by the Veteran is that of the shoulder, the joint contiguous to the clavicle. Stated differently, to assign a separate rating for arthritis of the clavicle and arthritis of the shoulder would constitute impermissible pyramiding under 38 C.F.R. § 4.14. See also Esteban, supra. Finally, the Board has also considered whether a separate or higher rating is warranted under any other potentially applicable DCs related to the shoulders. However, the Veteran does not have ankylosis of the scapulohumeral articulation, malunion of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union of the humerus, nonunion of the humerus, flail shoulder, dislocation of the clavicle or scapula, or malunion or nonunion of the clavicle or scapula that affects range of motion of the shoulder joint, as documented in the VA examination reports and treatment records. In this regard, while the 2016 examiner stated that the Veteran's left shoulder would have less movement due to ankylosis, adhesions, and the like, he and the other two examiners specifically found there was no evidence of ankylosis. Consideration of DCs 5200, 5202 and 5203 is therefore not warranted. In reaching its conclusion, the Board acknowledges the Veteran's belief that his left shoulder symptoms are more severe than the current disability rating reflects. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his left shoulder disorder. The Board has considered whether staged ratings under Hart, supra are appropriate; however, the Board finds that his symptomatology referable to his left shoulder has been stable during the period on appeal. Therefore, assigning staged ratings for such is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In adjudicating the rating claim herein, the Board has resolved all doubt in the Veteran's favor, but has nevertheless finds that the preponderance of the evidence is against the increased rating claim. Consequently, the benefit of the doubt doctrine is not applicable in such regard, and the Veteran's claim for higher or separate ratings are denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. III. TDIU Claim During the appeal, the Veteran has reported that he is unable to maintain substantially gainful employment due to his sole service-connected disability of the left shoulder. Specifically, at the November 2017 Board hearing, he noted his left shoulder disability left him unable to drive an 18 wheeler and interfered with his work at a halfway house for young men. When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992); Floore v. Shinseki, 26 Vet. App. 376, 383 (2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice, supra. Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The Veteran is solely service-connected for his left shoulder disability, rated as 20 percent disabling for the entire appeal period. Thus, his service-connected disability does not meet the schedular criteria for consideration of a TDIU under 38 C.F.R. § 4.16 (a). Further, the Board is precluded from assigning a TDIU rating on an extra-schedular basis under 38 C.F.R. § 4.16 (b) in the first instance. However, if it is determined that the Veteran is unable to secure or follow a substantially gainful occupation as a result of such service-connected disability, the Board may refer the matter to the Director, Compensation Service, for consideration of entitlement to TDIU on an extra-schedular basis. However, upon review of the evidence, the Board finds that the Veteran's service-connected disability does not render him unable to secure or follow a substantially gainful occupation. While the Veteran contends that his left shoulder disability ended his career as a truck driver, the evidence of record does not support such assertion. In this regard, while receiving VA treatment in September 2014, he reported that he had to retire after experiencing a stroke and exertional dyspnea in 2013. At that time, he also noted that he had an accident while driving in 2013 due to the sudden inability to see. These statements are supported by a November 2013 submission from his former employer noting that he stopped working in 2013 due to a nonservice-connected stroke. Additionally, the Veteran's November 2017 hearing testimony suggests that he stopped working at a halfway house for boys, in part, due to his fear of being injured when breaking up fights and a lack of desire to raise other people's children. Notably, an April 2014 VA examiner opined the Veteran's left shoulder disability would impact his ability to work as a truck driver, but he could perform sedentary work. Importantly, the question of employability is ultimately a legal one, not a medical one. Additionally, there is evidence to suggest that the Veteran's unemployment is primarily due to his nonservice-connected stroke and visual impairment. Based on the foregoing, the Board finds that the Veteran's service-connected left shoulder disability does not render him unable to secure and follow a substantially gainful occupation. In this regard, while he does have some limitations associated with such disability, to include the need to limit his overhead lifting and reaching behind him, such limitations alone are not of sufficient severity to produce unemployability. In sum, the evidence of record indicates that his service-connected left shoulder disability alone is not of sufficient severity to produce unemployability. As such, a TDIU is not warranted. See 38 C.F.R. § 4.16. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim for a TDIU rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER A rating in excess of 20 percent for a left shoulder disability is denied. A TDIU is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs