Citation Nr: 20072874 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 08-05 354 DATE: November 12, 2020 ORDER A rating in excess of 20 percent for a left shoulder disability is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The competent and probative evidence shows that, for the period on appeal, the Veteran had, at worst, limitation of motion of the left shoulder to 90 degrees. 2. The weight of the competent and probative evidence is against finding that the impairment caused by the Veteran’s service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a left shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, ,4.59, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to July 1981. This case is before the Board of Veterans’ Appeals (Board) on appeal from March 2012 and December 2018 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in January 2017. The transcript of the hearing has been associated with the record. The Board remanded the issue of a rating in excess of 20 percent for a left shoulder disability for further development in August 2016, December 2017, and June 2020. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. Left shoulder. The Veteran contends that he is entitled to a higher rating for his left shoulder disability. 09/25/2020, Form 9. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Code 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203). The Veteran’s left shoulder acromioclavicular (AC joint) arthritis, with residuals of multiple dislocations and surgery, is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Under Diagnostic Code 5202, malunion of the humerus with moderate deformity warrants a 20 percent rating for both the major and minor extremity. Malunion of the humerus with marked deformity warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level warrants a 20 percent rating for both the major and minor extremity. Recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements warrants a 20 percent rating in the minor extremity and a 30 percent rating in the major extremity. Fibrous union of the humerus warrants a 40 percent rating in the minor extremity and a 50 percent rating in the major extremity. Nonunion of the humerus (false fail joint) warrants a 50 percent rating in the minor extremity and a 60 percent rating in the major extremity. Loss of head of the humerus (flail shoulder) warrants a maximum 70 percent rating for the minor extremity and a maximum 80 percent rating for the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5202. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). A review of the relevant evidence demonstrates a rating in excess of 20 percent is not warranted for the entire period on appeal. Private and VA treatment records demonstrate evidence of chronic left shoulder pain for the entire period on appeal. The Veteran had three left shoulder surgeries during the period on appeal, an arthroscopy with rotator cuff repair in October 2015, arthroscopy in September 2019, and a popped adhesion repair in December 2019. A temporary 100 percent disability rating for convalescence was granted for the October 2015 surgery and the application for a temporary 100 percent disability rating for convalescence. The September 2019 and December 2019 surgeries are in the process of being completed by the agency of original jurisdiction and thus will not be addressed in this decision. A January 2011 MRI of the left shoulder revealed no evidence of significant rotator cuff or labral problems. The examination of the left shoulder revealed some generalized tenderness and limitation of motion with painful motion. The Veteran’s left shoulder showed no evidence of instability, swelling, increased heat, erythema, effusion, rotator cuff weakness, or deltoid weakness. 02/25/2012, CAPRI. In a November 2011 VA examination, flexion and abduction of the left shoulder were limited to 150 degrees, with painful motion starting at 150 degrees. The Veteran was able to perform repetitive-use testing with three repetitions with no effect on the range of motion. He had normal left shoulder strength and no evidence of ankylosis, current rotator cuff conditions, mechanical symptoms, impairment of the clavicle or scapula, or tenderness upon palpation of the AC joint. The examiner noted the Veteran had guarding of movement at shoulder level. 11/10/2011 VA Examination. A January 2012 treatment note indicates the Veteran complained of regular left shoulder pain with movement and a decreased range of motion, including abduction at 90 degrees, flexion at 90 degrees, and internal rotation to the beltline. 02/25/2012, CAPRI. An orthopedic surgery outpatient note from May 2013 notes examination of the left shoulder reveals some mild restriction of motion, both active but not so much passively, some tenderness anterior and anterolaterally, and mild impingement symptoms. The Veteran had no instability, swelling, increased heat, erythema, or signs of weakness. See 05/20/2014, CAPRI. The Veteran had a left shoulder MRI in July 2013, which did not show any rotator cuff tear, but did show calcific tendonitis of the supraspinatus tendon. Upon examination, the Veteran had excellent strength and full flexion, but discomfort limited his left shoulder abduction. Internal and external rotation appeared to be very minimally restricted. 05/20/2014, CAPRI. A February 2015 VA examination demonstrated left shoulder flexion and abduction limited to 120 degrees (there was a typographical error in the annotation of the abduction measurement), and external and internal rotations were limited to 45 degrees. Left shoulder pain was found to cause functional loss, but there was no evidence of pain with weight-bearing, localized tenderness, pain on palpation of the joint or associated soft tissue, crepitus, additional functional loss or range of motion after three repetitions, loss of shoulder strength, ankylosis, atrophy, current rotator cuff conditions, shoulder instability, current dislocation, labral pathology, or current clavicle, scapula, AC joint, sternoclavicular joint, or humerus conditions. 02/23/2015, C&P Exam. In October 2015, the Veteran underwent a left shoulder arthroscopy to remove a calcific deposit resulting in tendinitis. 10/30/2015 CAPRI. A private examination in April 2016 measured the Veteran’s left shoulder flexion at 175 degrees and abduction at 160 degrees; the examiner noted painful motion. 05/03/2016, Medical Treatment Record (MTR)–Non-Government Facility (NGF). A June 2016 private examination measured left shoulder flexion at 178 degrees and abduction at 165 degrees, and it also noted painful motion and slightly decreased strength. 09/15/2016, MTR–NGF. X-rays taken of the left shoulder in April 2017 showed a calcific deposit at the cuff insertion, but normal glenohumeral joint, AC joint, distance between the undersurface of the acromion and humeral head, and no fracture or dislocation. 11/09/2018 CAPRI. During private examinations in March 2018 and April 2018, the passive motion of the left shoulder demonstrated flexion at 180 degrees with minor pain and stiffness and abduction at 145 degrees with mild-moderate pain and stiffness. Upon palpation, pain and tenderness were noted in the acromion, clavicle, deltoid tuberosity, sub-acromial bursa, sub-deltoid bursa, supraspinatus, infraspinatus, subscapularis, and teres minor of the left shoulder. 08/01/2019, MTR–NGF. In an August 2019 VA examination, the left shoulder flexion was limited to 110 degrees, abduction was limited to 100 degrees, and external and internal rotation were limited to 40 degrees. The examiner found evidence of mild tenderness, including on palpation of the AC joint, and pain during the cross-body adduction test, but no objective evidence of left shoulder pain with weight-bearing, crepitus, additional functional loss after three repetitions, less movement than normal due adhesions, decreased strength, ankylosis, a rotator cuff condition, instability, dislocation, a labral pathology suspected, loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, or malunion of the humerus. See 08/15/2019, C&P Exam. A left shoulder arthroscopy was performed on the Veteran in September 2019. In an October 2019 independent medical evaluation, a private examiner noted the diagnoses of left shoulder progressive arthropathy secondary to a rotator cuff rupture, tendonitis, calcific tendinitis, and the recent aggravation of the left shoulder resulted in the need for the September 2019 repeat surgery. The private examiner opined that based on the limitation of motion to shoulder level, the Veteran’s left shoulder should be rated 20 percent. The examiner noted the record demonstrates current severity present since 2016. The examiner found the repeated dislocations mentioned in the record unclear, noting the Veteran could not provide any instance of dislocation when asked for details. 11/14/2019, MTR, NGF. Following increased pain in December 2019, the Veteran’s physician suspected an anchor pullout, but at the time of surgery, there was no dislodgment of the anchor or the button; in fact, there was complete healing of the rotator cuff; an adhesion pop was likely the cause of the pain. 01/31/2020, MTR, NGF. A January 2020 private examiner found the Veteran had a full range of motion in his left shoulder three weeks following his December 2019 surgery. See 03/19/2020, MTR, NGF. A July 2020 VA examiner found the Veteran’s left shoulder flexion and abduction limited to 100 degrees and external and internal rotations limited to 40 degrees. The examiner found the abnormal range of motion hinders the Veteran from lifting objects at or above his head, that there was evidence of pain with weight-bearing, and that pain, weakness, and fatigability significantly limit functional ability with flare-ups. The examiner found no objective evidence of crepitus, additional loss of function or range of motion after three repetitions, reduction in muscle strength, atrophy, ankylosis, a rotator cuff condition, shoulder instability, dislocation, labral pathology, loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. The examiner noted the Veteran has left shoulder AC joint arthritis, and the passive range of motion of the left shoulder was the same as the active range of motion. The examiner observed a worsening of the Veteran’s left shoulder symptoms; however, no change to the diagnosis. See 07/22/2020, C&P Exam. The evidence is against a rating in excess of 20 percent for the left shoulder disability. The evidence of record shows that the Veteran is right-handed. 11/10/2011, VA Examination. In January 2012, the Veteran reported flexion and abduction limited to 90 degrees. All the examinations throughout the appeal period reflect a slightly higher degree of flexion and abduction; regardless, flexion and abduction limited to 90 degrees does not warrant an evaluation in excess of 20 percent under DC 5201. The Veteran’s lay reports of symptoms of pain and functional loss due to pain are noted; however, even considering the Veteran’s lay reports of symptoms of pain and noted functional loss, the degree of additional limitation reflected by the statements that he is unable to raise his left arm above or at the level of the head would not result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the side of the major or minor extremity. At no point during the period on appeal has the record reflected such severity. Other Diagnostic Codes related to disabilities of the shoulder have been considered; however, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Separate ratings are not warranted under Diagnostic Codes 5200, 5202, or 5203, as the weight of the competent and probative evidence is against finding abduction limited to 60 degrees, union problems, recurrent dislocation during the period on appeal, or ankylosis. The preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for a left shoulder disability. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU 2. Entitlement to TDIU. VA may grant a total disability rating where the schedular rating is less than 100 percent, and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. The Veteran’s service-connected disabilities include post-traumatic stress disorder (PTSD) with depression (30 percent from July 31, 2013), left shoulder AC joint arthritis (10 percent from August 24, 2000, 20 percent from March 19, 2002, 100 percent from October 2, 2002, 20 percent from May 1, 2003, 100 percent from October 26, 2015, and 20 percent from February 1, 2016), hemorrhoids (10 percent from August 24, 2000), pseudofolliculitis barbae (10 percent from March 24, 2003), residuals of a mandible fracture (noncompensable from August 24, 2000, and 10 percent from April 2, 2003), left knee degenerative joint disease (10 percent from March 21, 2002, 100 percent from October 17, 2008, 10 percent from December 1, 2018), right knee degenerative joint disease (10 percent from December 2018), and left shoulder deltoid scar (noncompensable from July 8, 2020). As no disability is rated at 40 percent or more, the schedular threshold requirement for TDIU is not met. See 38 C.F.R. §§ 4.16(a), 4.25. If a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(b). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Board must, therefore, evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. Marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). An individual’s particular circumstance is the basis for entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). A review of the record demonstrates the Veteran’s service-connected disabilities do not render him unable to secure and maintain substantially gainful employment. The record demonstrates that the Veteran’s highest level of education was high school. From 1990 to 1998, the Veteran was employed full time as a cook at a University, that ended when he was injured in a slip and fall incident that resulted in a low back strain and contusion. He has not had substantial employment since March 1999 in large part due to his back disability. See 08/28/2019, SSA/SSI Letter; 08/19/2019, C&P Exam. The evidence demonstrates that the Veteran’s current lumbar radiculopathy are severe impairments to his ability to work. 08/28/2019, SSA/SSI Letter. The Veteran’s service-connected PTSD with depression, hemorrhoids, pseudofolliculitis barbae, residuals of a mandible fracture, and left shoulder scar were not found to adversely affect his ability to work. See 09/11/2019, C&P Exam; 08/19/2019, C&P Exam, 08/15/2019, C&P Exam. The Veteran’s service-connected PTSD was found to not likely have a substantial adverse effect on his ability to be productive and reliably get his work done in most employment settings, not likely to have a substantial adverse effect on his ability to concentrate and follow instructions in most employment settings, and not likely to have a substantial adverse effect on the ability to work well with co-workers, supervisors, subordinates, and customers in most employment settings, as evidenced by his self-report of having generally gotten along well at his full-time job at the University. See 08/19/2019, C&P Exam. An August 2019 VA examiner opined occupations that require standing long and walking could be difficult for him because of his left knee condition, and occupations that require repeated lifting of the left arm above his shoulder can be difficult for him because of his shoulder disabilities. 08/30/2019, C&P Exam. The July 2020 VA examiner opined the Veteran’s limited left shoulder range of motion impairs lifting, raising the left shoulder at or above the head, and impacts his ability to work. 07/22/2020, C&P Exam. That the Veteran’s service-connected left shoulder and bilateral knee disability results in occupational impairment are recognized; however, he is being compensated for those limitations, as the percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disabilities and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran is currently in receipt of a combined 70 percent rating evaluation for all his service-connected disabilities. Regarding his unique circumstances, including his education, work experience, and impairment from service-connected disabilities, the competent and credible evidence weighs against finding the Veteran unemployable due solely to his service-connected disabilities. Notably, the Veteran has the mental ability to perform the type of activities required for substantially gainful employment. Further, the record demonstrates the Veteran’s left shoulder injury and left knee injury, which occurred during service, did not impair him from working full-time (Continued on next page) before his back injury in 1998. There is simply no evidence that the Veteran is rendered unemployable due only to his service-connected disabilities. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.