Citation Nr: 20030179 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 20-11 432 DATE: April 29, 2020 ORDER A disability rating of 30 percent, but no higher, from June 1, 2019 to November 9, 2019, and 20 percent thereafter for a right shoulder disability is granted. A total disability rating based on unemployability (TDIU) is denied. FINDINGS OF FACT 1. From June 1, 2019 to November 9, 2019, the Veteran’s right shoulder disability manifested in a limited range of motion midway between the side and shoulder level; thereafter, the arm had limited motion at the shoulder level. 2. The Veteran’s service connected disabilities do not meet the schedular criteria for a TDIU. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent, but no higher, from June 1, 2019 to November 9, 2019, and 20 percent thereafter for a right shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, DC 5201. 2. The criteria for a TDIU are not met. 38 U.S.C. § 1157; 38 C.F.R. §§ 3.321, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army with active duty from July 2002 to June 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as “staged ratings,” - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. Staged ratings (the assignment of different disability ratings at different times over the life of the claim) are appropriate when the factual findings show distinct time periods where symptoms would warrant different ratings. In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Moreover, when evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 20607 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the Diagnostic Codes applicable to the affected joint); 38 C.F.R. § 4.45. Right Shoulder Disability In a December 2013 rating decision, service connection was granted for right shoulder impingement and a 10 percent rating was assigned. The Veteran sought an increased rating in October 2018. In November 2018, the rating for the right shoulder disability was increased to 20 percent effective October 19, 2018. The Veteran seeks a higher rating. [The Board notes that temporary total evaluations for convalescence pursuant to 38 C.F.R. § 4.30 have been assigned. Those periods of time are not for consideration.] Shoulder disabilities are rated under codes 5200 to 5203. The record shows that the Veteran is right-handed, making the right shoulder his major extremity. He is not shown to have ankylosis of the right shoulder. Further, there is no evidence in the record to illustrate that the Veteran has any impairment of the humerus. Therefore, DC 5200 and 5202 do not apply in this instance. The Board also notes that the Veteran’s current 20 percent rating is the highest allowed under DC 5203. Therefore, the Board will focus its analysis on an increased rating under DC 5201 as this is the only DC under which the Veteran could receive a rating greater than the current 20 percent. Under DC 5201, limitation of motion to shoulder level (e.g., flexion to 90 degrees) in the major extremity warrants a 20 percent rating. A 30 percent rating is warranted for limitation of the major arm to midway between the side and shoulder level, that is, 45 degrees. Limitation of motion to 25 degrees from side in the major extremity is rated at 40 percent. 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 Veteran’s VA medical records establish pain in the right shoulder. For example, a May 2018 note shows the Veteran has a history of right shoulder pain and lists this pain as an active problem. Further, this note also shows a history of steroid injections in order to treat right shoulder pain as well as undergoing physical therapy. Although this pain was listed as chronic, the notes also state that the Veteran was more concerned with his right ankle pain. In November 2018, the Veteran underwent a VA examination. The examiner noted abnormal range of motion in the right shoulder. Specifically, flexion was limited to 170 degrees, abduction was limited to 130 degrees, external rotation was 80 degrees, and internal rotation was limited to 60 degrees. These findings illustrate a 20 percent rating under DC 5201. In June 2019, the Veteran underwent a second VA examination. The examiner noted the Veteran’s range of motion in the right shoulder to be abnormal. The examiner found flexion was limited to 35 degrees, abduction was limited to 40 degrees, external rotation was 90 degrees, and internal rotation was limited to 55 degrees. These findings support a 30 percent rating under DC 5201. The examiner also noted that the Veteran was undergoing physical therapy at the time of examination and he had not reached his maximum medical improvement. Further, this improvement should take 6-9 months after which he would need a reevaluation according to the examiner. The Veteran underwent a subsequent VA examination in November 2019. The examiner noted the right shoulder flexion at 160 degrees, abduction at 160 degrees, external rotation at 80 degrees and internal rotation at 50 degrees. Although these findings do not establish a compensable rating under DC 5201, the examiner noted pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. This pain is sufficient to warrant the minimum compensable rating under DC 5201, 20 percent. These findings were confirmed when the Veteran underwent a third VA examination in January 2020. Similar to the November 2019 examination, the examiner noted abnormal range of motion of the right shoulder, however, none of the findings establish a compensable rating under DC 5201. However, the examiner also confirmed the painful motion sufficient to warrant the minimum compensable rating under the DC. Based on these findings the Board finds that a staged rating for the Veteran’s right shoulder disability is appropriate. The record clearly illustrates that a 30 percent rating is warranted from June 1, 2019 to November 9, 2019, the date of the VA examination showing painful motion of the right shoulder, but no limitation in range of motion that warrants a higher rating. The Board also finds that a 20 percent rating is appropriate from November 9, 2019 to present. TDIU TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry in determining whether TDIU is warranted is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). None of the Veteran’s service connected disabilities are rated at 40 (Continued on the next page)   percent or greater. Further, the Veteran is not unable to secure or follow substantially gainful employment due to service-connected disabilities and does not meet the schedular requirements of 38 C.F.R. § 4.16a. The claim for TDIU is therefore denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, Associate 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.