Citation Nr: 19134841 Decision Date: 05/07/19 Archive Date: 05/03/19 DOCKET NO. 10-35 548 DATE: May 7, 2019 ORDER Entitlement to a 20 percent disability rating effective November 1, 2007 through March 12, 2012 for myofascial pain syndrome of the right trapezius muscle (a right shoulder disability) is granted. Entitlement to a rating in excess of 30 percent for the right shoulder disability since March 13, 2012 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to March 13, 2012, the Veteran’s right shoulder disability was more nearly approximated by pain with limitation of motion to, at worst, 120 degrees. 2. From March 13, 2012, the Veteran’s right shoulder disability has been more nearly approximated by pain with limitation of motion to, at worst, 80 degrees. 3. The Veteran is currently employed in a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent, but no higher, for the period from November 1, 2007 through March 12, 2012, for myofascial pain syndrome of the right trapezius muscle, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, 4.73, Diagnostic Code 5301-5201. 2. The criteria for a disability rating in excess of 30 percent since March 13, 2012, for myofascial pain syndrome of the right trapezius muscle, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, 4.73, Diagnostic Code 5301-5201. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to July 1988, and from October 1988 to September 1994. This matter comes before the Board of Veterans’ Appeals (Board) from January 2009, April 2012, and December 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The issues were most recently before the Board in July 2018 and January 2019 where they were remanded for additional development, and have since been returned for further appellate review. Increased Ratings By way of history, service connection for the Veteran’s right shoulder disability was originally granted in a March 1995 rating decision, with a noncompensable (zero percent) rating assigned. A February 2002 rating decision increased the rating to 10 percent. Following the reduction of a temporary total rating back to 10 percent after arthroscopic shoulder surgery, the Veteran filed the instant claim of entitlement to an increased rating in November 2007. While the RO increased the Veteran’s rating to 20 percent effective from March 13, 2012, in an April 2012 rating decision, the Board in April 2017 increased that rating to 30 percent effective from March 13, 2012. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. 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 many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran’s right shoulder disability is currently rated under Diagnostic Code 5301-5201 for injury to Muscle Group I involving the shoulder and rated by analogy to limitation of motion of the shoulder. See 38 C.F.R. § 4.27 (providing that an unlisted disease, injury or residual condition may be rated by analogy). Under Diagnostic Code 5201, limitation of motion to shoulder level (e.g., flexion or abduction to 90 degrees) in the major or minor extremity warrants a 20 percent evaluation. Limitation of motion to midway between side and shoulder level (e.g., flexion or abduction to 45 degrees) in the major extremity warrants a 30 percent evaluation. Limitation of motion to 25 degrees from the side in the major extremity warrants a 40 percent evaluation. The Veteran is noted to be right handed, and so the right arm is his “major” extremity. 38 C.F.R. § 4.71a. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Board notes that, prior to October 2013, the Veteran’s right shoulder disability was rated only under Diagnostic Code 5301, which addresses injuries to Muscle Group I involving the extrinsic muscles of the shoulder girdle: (1) trapezius; (2) levator scapulae; and (3) serratus magnus. Under Diagnostic Code 5301, for a dominant arm, a slight disability warrants a noncompensable rating, a moderate disability warrants a 10 percent rating, a moderately severe disability warrants a 30 percent rating, and a severe disability warrants a 40 percent rating, the highest rating available under the diagnostic code. 38 C.F.R. § 4.73. The severity of the muscle disability is determined by application of criteria at 38 C.F.R. § 4.56. For the Veteran to be awarded higher ratings during the appeal, his right shoulder disability would need to manifest moderately-severe or severe muscle injury. The provisions of 38 C.F.R. § 4.56 provide that the type of injury associated with at least a moderately-severe muscle disability is a through and through or deep penetrating wound due to small-velocity missile, or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Objective findings of a muscle disability that was at least moderately-severe include entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side; and tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. Here, however, the Board finds as an initial matter that the medical evidence of record establishes that Veteran’s myofascial pain syndrome of the right trapezius muscle has been manifested by no more than pain and limited range of motion of the right shoulder for the entire period on appeal. The record does not reflect, nor does the Veteran assert, the type of muscle injury that would indicate a higher or separate rating under Diagnostic Code 5301. As such, the Board finds that rating the right shoulder disability by analogy under Diagnostic Code 5201 is appropriate. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Additionally, while the medical evidence of record reflects pain, tingling, and numbness in the Veteran’s right upper extremity through his fingers, the Board notes that the Veteran is already separately service-connected for right upper extremity radiculopathy as secondary to a cervical spine disability. As only the Veteran’s right shoulder myofascial pain syndrome is on appeal, the symptomology associated with his separate radiculopathy disability will not be addressed. 1. Rating prior to March 13, 2012. Turning to the evidence, VA spine and peripheral nerves examinations were afforded to the Veteran in January 2007 to address the Veteran’s complaints of neck pain radiating to the right upper extremity, primarily to the shoulder. Range of motion (ROM) testing of the right shoulder revealed forward flexion to 130 degrees with pain, and abduction to 110 degrees with pain. The examiner noted that repetitive movement of the right shoulder girdle caused additional loss of motion of 10 degrees in both forward flexion and abduction. While a chronic right shoulder strain was initial diagnosed by the examiner, an MRI ordered at the time revealed a mild tendinosis of the rotator cuff without evidence of tears, as well as mild degenerative changes of the acromioclavicular joint with type 2 acromion and slight narrowing of the acromioclavicular interval. A VA shoulder examination was afforded to the Veteran in November 2008. He reported constant, and progressively worsening, right shoulder pain and tenderness despite arthroscopic surgery in September 2007. Physical examination revealed ROM again to 130 degrees flexion (with pain at 120 degrees) and 110 abduction. Repetitive use testing revealed additional loss of motion between 5 and 10 degrees due to pain. The was no impact on the Veteran’s weight-bearing. Diagnostic testing the previous month indicated mild early degenerative changes but was otherwise negative. The diagnosis of right shoulder trapezius myofascial pain was continued, with the examiner opining its functional impact as only mildly effecting chores, shopping, exercise, recreation, and traveling. Both an April 2010 and August 2011 VA muscle injuries examination indicated no history of traumatic injury or scarring to the Veteran’s trapezius muscle, including nerve, tendon, bone, or muscle damage. In fact, it was noted during the latter examination that the Veteran’s right trapezius pain was due to an in-service bowling injury. The April 2010 examiner noted only a slight palpable assymetry of the right trapezius muscle with a palpable contracted region on the proximal superficial region of the muscle but was unable to determine whether the contraction was an involuntary spasm or a voluntary action. While the examinations indicated an increase in the effect of his disability on daily activities compared with previous examinations, ROM testing was not performed. The remaining medical evidence is not in significant conflict with the above, with VA and private treatment records noting the Veteran’s arthroscopic surgery, and his continued right shoulder pain, spasms, and limitation of motion since. Overall, VA examinations indicated pain and reduced ROM to no less than 120 degrees flexion and 100 degrees abduction, to include after repetitive use. As the Veteran has motion of the right shoulder above shoulder level during this period, a compensable rating would not be warranted if only considering Diagnostic Code 5201. 38 C.F.R. § 4.71a. However, given the Veteran has painful motion in the right shoulder, he is entitled to the minimum compensable rating for the joint, which is 20 percent. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5201. This rating will be effective November 1, 2007, the day the Veteran’s temporary total rating due to right shoulder surgery ended. A higher rating is not warranted as the evidence does not reflect and the Veteran does not contend that his right shoulder motion is limited to 45 degrees or less during this period even when considering pain. 2. 30 percent rating since March 13, 2012. As noted above, the Veteran’s disability rating was increased to 30 percent effective the date of a March 2012 VA examination. Based upon the following, the Board finds that the Veteran’s disability picture during this period also does not more nearly approximate the degree required for a higher or separate rating. During the March 2012 VA examination, ROM testing revealed right shoulder flexion to 80 degrees with pain and abduction to 110 degrees with pain, to include after three repetitions. Muscle strength was not reduced and there was no ankylosis. Pursuant to Board remands, additional VA examinations were afforded to the Veteran in June 2017, October 2018, March 2019 where he reported continued and increased pain when using and raising his right arm. ROM testing upon examination revealed, at worst, flexion to 120 degrees and abduction to 85 degrees during the June 2017 examination, with the later examinations actually showing improved ROM. During these examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. The examiners also all noted that the functional impairment of the Veteran’s right shoulder disability limited his ability to perform heavy labor work, but that he continued to work in his profession as a mail carrier. The Board also notes than an additional VA muscle injuries examination was afforded during this appeal period, in June 2017. As with previous muscle injuries examinations, no injury to any muscle group aside from his myofascial pain syndrome of the right trapezius was indicated. The examiner opined that, while there was a worsening of the Veteran’s symptoms (e.g. pain), the disability did not impact his ability to work at that time, noting that he continued to work as a mail carrier despite constant trapezius muscle pain. There is no other medical evidence in significant conflict with the above findings, with treatment records continuing to show increased shoulder pain in both intensity and frequency. As such, a higher 40 percent disability rating is not warranted during this period on appeal, as the evidence is against a finding that his disability manifests limitation of motion of the right arm to only 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. While the Veteran has essentially stated that he has reduced motion in his right shoulder, he has not described range of motion less than that found on examination. In this regard, he did report flare-ups during his examinations but described the flare-ups as consisting of increased pain, and upon examination in March 2019 the examiner found that the Veteran’s flare-ups of pain resulted in additional functional loss to only 140 degrees flexion and abduction. Moreover, he actually denied flare-ups in the two examinations prior. The Veteran’s statements do not show the requisite limitation of motion necessary for higher ratings. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. The Board has considered whether any additional diagnostic codes might apply to the Veteran’s claim but have found none. As noted above, the Veteran’s disability of the right trapezius muscle manifests primarily with pain and limitation of motion. The evidence is against a finding of a muscle injury that would warrant separate or higher ratings under the Diagnostic code 5301 for injuries to Muscle Group I. 38 C.F.R. § 4.71a. Further, while VA examinations revealed residual scars from the Veteran’s history of right shoulder arthroscopic surgery, the medical evidence did not indicate they were painful or unstable, were deep and nonlinear and with a total area equal to or greater than 39 square centimeters, were superficial and nonlinear and with a total are equal to or greater than 929 square centimeters, or caused any limitation of function to warrant a compensable rating for scars under Diagnostic Codes 7801-7804. See 38 C.F.R. § 4.118. Finally, the evidence also fails to establish ankylosis, impairment of the humerus, or malunion, nonunion, or dislocation of the clavicle or scapula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. Given the above, even when considering the right shoulder pain’s impact on physical activities, higher or separate ratings are not warranted for the Veteran’s right shoulder disability during the entire period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5201-5301. The Board is sympathetic to the Veteran’s lay statements that his disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. 3. Entitlement to a TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. In determining whether an appellant is entitled to a TDIU, neither appellant’s nonservice-connected disabilities nor advancing age may be considered, and he 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 38 C.F.R. § 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Employment may be marginal even when the Veteran’s earned income exceeds the poverty threshold if the Veteran is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Here, the Board notes that Veteran has a total combined disability rating of 100 percent from February 29, 2012. However, despite the Veteran’s total disability evaluation, the evidence of record illustrates that he has been employed in a substantially gainful occupation during the entire appeal period. In Bowling v. Principi, 15 Vet. App. 1 (2001), the Unites States Court of Appeals for Veterans Claims (Court) held that, even if a veteran is employed, this does not necessarily preclude him from receiving a TDIU, if he does not have sufficient income to constitute substantially gainful employment. “Substantially gainful employment” was defined by the Court in Faust v. West, 13 Vet. App. 342 (2000) as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income....” More recently, the Court held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components, one of which is economic. The economic component essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Here, the Veteran has not submitted financial information indicating that his income level is insufficient for him to be considered gainfully employed. In fact, his December 2017 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, notes that he has been employed as a postal worker since August 1997, working 40 hours per week, and with a total earned income of $63,000 the previous 12 months. There is no evidence, nor has the Veteran asserted, that this employment is considered a protected or sheltered work environment. Thus, the Board finds that he is not entitled to a TDIU. 38 C.F.R. §§ 4.16(a) and 4.19. Accordingly, entitlement to a TDIU is denied. (Continued on the next page) Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel