Citation Nr: 20028048 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 12-15 637 DATE: April 22, 2020 ORDER Prior to April 7, 2016, a rating of 20 percent, but no higher, for a left shoulder disability is granted, subject to the laws and regulations governing the payment of monetary benefits. Beginning April 7, 2016, a rating in excess of 20 percent for a left shoulder disability is denied. Prior to June 18, 2012, entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Throughout the appeal period, the most probative evidence of record demonstrates that the Veteran’s left shoulder disability was manifested by, at worst, limitation of the arm at the shoulder level or midway between the side and shoulder level; worse impairment was not shown. 2. Prior to June 18, 2012, the most probative evidence of record demonstrates that the Veteran’s service-connected disabilities alone prevented him from obtaining or maintaining substantially gainful employment consistent with his education and experience. CONCLUSIONS OF LAW 1. Prior to April 7, 2016, the criteria for a 20 percent rating, but no higher, for a left shoulder disability, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.59, 4.71a, Diagnostic Code 5201. 2. Beginning April 7, 2016, the criteria for a disability rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.59, 4.71a, Diagnostic Code 5201. 3. Prior to June 18, 2012, the criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to August 1991. In April 2015, the Veteran testified at a Travel Board hearing before the undersigned Veteran’s Law Judge. A copy of that transcript is associated with the evidence of record. Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). 1. Entitlement to a rating in excess of 10 percent for a left shoulder disability prior to April 7, 2016, and in excess of 20 percent thereafter The Veteran is claiming his left shoulder disability is more severe than the assigned ratings reflect. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s left shoulder disability is rated under Diagnostic Code 5010-5201 (limitation of motion of the right arm with arthritis). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Under the Rating Schedule, Diagnostic Codes 5200, 5201, 5202, and 5203 pertain to the shoulder and arm. 38 C.F.R. § 4.71a. The rating criteria differ depending on whether the major (dominant) or minor (non-dominant) arm is being evaluated. Id. The Veteran is right-hand dominant; therefore, his left arm is his minor arm for rating purposes. The criteria under Diagnostic Codes 5200 (scapulohumeral articulation, ankylosis of) and 5202 (other impairment of the humerus) are not applicable in this case. 38 C.F.R. § 4.71a. This is so because the evidence does not reflect any indication that the Veteran’s left shoulder disability is manifested by any of these conditions; therefore, these rating criteria will not be discussed. Diagnostic Code 5201 contemplates disorders of the shoulder and arm based on limitation of motion of the arm. A 20 percent rating is warranted for limitation of the minor arm at the shoulder level or midway between the side and shoulder level. A 30 percent evaluation (the maximum rating available) is warranted for limitation of minor arm motion to 25 degrees from the side. Diagnostic Code 5203 pertains to impairment of the clavicle or scapula. Under this diagnostic code, a 10 percent rating is warranted for malunion nonunion without loose movement of the minor arm. The highest 20 percent rating is warranted for nonunion with loose movement or dislocation of the minor arm. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran’s ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Following a thorough review of the lay and medical evidence, the Board finds that prior to April 17, 2016, a 20 percent rating, but no higher, is warranted for the Veteran’s left shoulder disability. Throughout the appeal period, a rating in excess of 20 percent is not warranted. The Board notes that in order to receive a 20 percent rating under Diagnostic Code 5201, the evidence must demonstrate limitation of the minor arm at the shoulder level or midway between the side and shoulder level. Significantly, flexion and abduction to 90 degrees demonstrates limitation to the shoulder level, while flexion and abduction to 45 degrees would represent limitation to midway between the side and shoulder level. The Veteran attended VA examinations to assess the severity of his left shoulder in May 2008, May 2012, April 2016, and May 2019. At these examinations, the Veteran’s abduction was measured to 80 degrees (May 2019), 90 degrees (April 2016 and May 2008), and 165 (May 2012); flexion was measured to 90 degrees (May 2019), 130 degrees (April 2016 and May 2008), and 150 degrees (May 2012). No opinions were provided regarding any additional estimated additional limitation of range of motion on repetitive use or during flare-ups at the May 2008, May 2012, and April 2016 VA examinations. At the May 2019 VA examination, the examiner considered the objective examination results, the Veteran’s subjective reports, and the history of the disability/review of medical records and reported the inability to describe additional loss of range of motion on flare-ups or during repetitive use. Specifically, the examiner indicated that the Veteran was not able to describe change in range of motion during flare-ups or on repetitive use and therefore, any examiner would not be able to reasonably provide this information. Based on the Veteran’s subjective reports, the examiner estimated any additional limitation in functional ability during flare-ups or on repetitive use to be moderate. The Board notes that “moderate” is not defined in the rating criteria. However, the Board presumes that moderate means that the Veteran’s range of motion on repetitive use or during flare-ups to be reduced by, at most, fifty percent. Applying this logic to the Veteran’s range of motion measurements during VA examinations and in private and VA treatment records (essentially cutting those measurements in half, by fifty percent), the Board finds that throughout the appeal period, the Veteran’s left shoulder disability has been manifested by limited range of motion at the shoulder level or midway between the side and shoulder level, warranting a 20 percent rating. The probative lay and medical evidence of evidence of record does not reflect limitation of left shoulder motion to 50 degrees or less from the side, which the Board would presume to be limited to 25 degrees from the side during flare-ups and on repetitive use, consistent with the May 2019 VA examiner’s conclusion that additional limitation in functional ability would be moderate. Thus, the Board finds that even with consideration of functional loss on flare-ups and on repetitive use, the criteria for the maximum 30 percent rating have not been met throughout the appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board has considered rating the Veteran’s left shoulder disability under Diagnostic Code 5203 and finds it is not applicable. While there may have been evidence of impairment of the clavicle and scapula during the appeal period, warranting consideration of Diagnostic Code 5203, the Board notes that a separate rating under this code is not warranted in addition to a rating under Diagnostic Code 5201. This is so because there is no evidence that the Veteran’s left shoulder disability manifestations are separate and distinct, and to evaluate the same disability or manifestations thereof under multiple diagnostic codes would amount to pyramiding, which is prohibited by VA regulation. See 38 C.F.R. § 4.14. The highest rating available under Diagnostic Code 5203 for a minor arm is 20 percent. See 38 C.F.R. § 4.71a. Given that the Veteran is already in receipt of a 20 percent rating under Diagnostic Code 5201, consideration of alternatively rating under Diagnostic Code 5203 is moot as it would not provide any additional benefit. The Board acknowledges the Veteran’s competent lay statements regarding symptoms he has experienced, as this requires only personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, his statements are not competent evidence to identify a specific level of severity relating this disability to the appropriate diagnostic code, as this requires specialized medical education, training or experience. See 38 C.F.R. § 3.159(a). In contrast, competent and probative evidence concerning the nature, extent, and severity of the Veteran’s left shoulder disability has been provided by medical professionals who have examined him during the appeal and who have directly addressed the criteria under which his disability is evaluated. The Board recognizes that the Court recently held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Notably, the Correia case dealt with a claim for an increased rating for a knee disability. A review of the Veteran’s claims file reveals that not all of the VA shoulder examinations of record demonstrate range of motion testing for the left shoulder in passive, nonweight-bearing motion. The Board takes notice that at VA examinations, the testing of the range of motion of the shoulder is generally done by assessing active motion rather than passive motion. The “active” motion is tested by having a veteran stand and attempt to raise his arm away from the side of his body. This standing testing is considered to be testing on weight-bearing as a veteran must support the weight of his or her body while undergoing such testing. Although it may possible to test passive motion without weight-bearing by having a veteran lie down on a table and have the examiner move a veteran’s arm away from his body, such testing would be awkward and would not reveal useful information. In this regard, active range of motion testing produces range of motion test result figures which are more restricted than the results produced by passive range of motion testing in which the physician forces the joint through its motions. Notably, at the May 2008 VA examination, where active and passive testing was performed, passive testing produced equal or more range of motion than active testing. Similarly, testing on weight-bearing would generally produce more restrictive results than testing done without weight-bearing. Therefore, in the case at hand, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing on weight-bearing because such results tend to produce the “worst case scenario” of impairment and thus would tend to support the highest possible rating. There is no logical indication that passive, nonweight-bearing range of motion testing of the left shoulder would change the outcome here. Although the examinations of record may not strictly satisfy the requirements of the Correia case, here this is inconsequential and, at most, harmless error. See 38 C.F.R. § 20.1102. The Board has considered the benefit of the doubt doctrine; however, since the evidence is against a rating in excess of 20 percent, it is not applicable. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to TDIU prior to June 18, 2012 Initially, the Board notes that entitlement to TDIU was granted in its November 2017 decision. The Board based its decision on the manifestations of his psychiatric disorder, numerous orthopedic disabilities, and limited educational and occupational history. Thereafter, the AOJ issued a June 2019 rating decision implementing the Board’s November 2017 grant of TDIU and found that beginning June 18, 2012, the Veteran’s claim for entitlement to TDIU was moot. Notably, a 100 percent disability rating does not necessarily render the issue of entitlement to TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94. Although no additional disability compensation may be paid when a total schedular disability is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). Id. (emphasis added). However, the present case is distinguishable from Bradley. Here, to also award a separate TDIU rating in addition to the combined schedular 100 percent rating since June 18, 2012, based on the Veteran’s combined service-connected disabilities would result in duplicate counting of the disabilities. See VAOPGCPREC 66-91 (Aug. 15, 1991) (several separately ratable disabilities cannot be combined to achieve a single total rating in order to qualify for SMC). Further, the Veteran’s service-connected disabilities which were not found to cause him to be unemployable (tinnitus, bilateral hearing loss, hypertension) do not combine to reach a 60 percent rating, and thus, do not render him eligible to receive SMC. Thus, beginning June 18, 2012, entitlement to TDIU is moot. Accordingly, the Board turns to the issue of entitlement to TDIU prior to June 18, 2012, which was recently readjudicated in a June 2019 Supplemental Statement of the Case and has been properly returned to the Board. The record contains some discrepancies as to when the Veteran stopped working, in part, due to his lack of response to requests for completion of a formal TDIU application. In August 2015 and April 2019, the AOJ sent the Veteran letters requesting that he complete and return a formal application for TDIU and an authorization to allow VA to obtain information from previous employers. The Veteran did not respond to these letters and they were not returned as undeliverable. Notably, the Veteran has variously stated he stopped working in 2011, 2012, and 2013. However, the Board finds the most probative evidence is the Veteran’s Social Security Administration disability application, which indicates he last worked on May 11, 2012. In that claim, he indicated he stopped working due to arthritis, a back disability, bilateral knee disabilities, bilateral ankle disabilities, and depression/anxiety. There is no probative evidence that the Veteran has worked since that time. The Veteran’s educational and occupational history reflects that he does not have a college degree and worked solely as a skilled tradesman in heating ventilation and air conditioning services after discharge. From May 11, 2012, through June 18, 2012, the Veteran’s service-connected disabilities which produced the most occupational impairment include a psychiatric disorder and several orthopedic disorders (including a thoracolumbar spine disability rated as 40 percent disabling). During that time, his combined rating was 90 percent and he met the schedular requirements for entitlement to TDIU. 38 C.F.R. § 4.16(a). The most probative evidence of record reflects that the Veteran’s service-connected disabilities rendered him unemployable prior to June 18, 2012. During that time, his psychiatric disorder was noted to produce reduced productivity and unreliability and his numerous orthopedic disabilities reduced his residual functional capacity to less than sedentary. Accordingly, the Board finds that the severity of the Veteran’s psychiatric and orthopedic disabilities rendered him unable to secure and maintain substantially gainful employment consistent with his education and occupational experience. Therefore, prior to June 18, 2012, entitlement to TDIU is granted. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jessica L. O'Connell 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.