Citation Nr: 21000813 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-21 116 DATE: January 6, 2021 ORDER The claim of entitlement to a rating in excess of 30 percent for a right shoulder disability is denied. REMANDED The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s service-connected right shoulder disability does not cause, or more nearly approximate, motion limited to 25 degrees from his side, ankylosis, humerus impairment or clavicle or scapula impairment. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for a service-connected right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from July 1978 to November 1978 and April 1979 to June 1995. The instant matter is on appeal from a December 2009 rating decision. This case has a significant procedural history. The Regional Office initially reduced the rating for his right shoulder disability in December 2009. The Veteran appealed that reduction and asserted entitlement to an increased rating for the disability. In April 2015, the Veteran testified before a Veterans Law Judge in a videoconference hearing. A transcript of the proceedings has been associated with the record. In October 2020, he was notified that the VLJ was no longer with the Board and offered an additional hearing before a VLJ that would decide his case. He did not respond to that correspondence within the afforded 30-day response period; thus, entitlement to an additional hearing has been waived. In July 2015, the Board restored the Veteran’s previous 30 percent rating for his right shoulder disability. In July 2018, the Board denied entitlement to a rating in excess of 30 percent. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court), which vacated the denial in June 2019 pursuant to the terms of a Joint Motion for Remand (JMR). The Board subsequently remanded the issue for additional evidentiary development in November 2019. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU rating is part of an appeal for an increased rating claim when such claim is raised by the record. Here, the Board notes that the Veteran indicated that he lost his employment around January 2019 due to his service-connected disabilities. As such, the Board finds that the record raises a claim for TDIU. 1. The claim of entitlement to a rating in excess of 30 percent for a right shoulder disability The Veteran contends that he is entitled to a rating in excess of 30 percent for his service-connected right shoulder injury. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). VA regulations indicate that handedness will be determined by the evidence of record. 38 C.F.R. § 4.69. The evidence reflects that the Veteran is right-handed. The Veteran’s right shoulder disability is rated under Diagnostic Code 5201 for limitation of motion of the arm. For the dominant side, limitation of motion to shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 30 percent rating. Limitation of motion to 25 degrees from the side warrants a 40 percent rating. The Veteran’s VA treatment records reflect chronic pain and limitation of motion in the right shoulder to varying degrees throughout this lengthy appellate period. By way of example, in July 2008, VA treatment records reflect right shoulder flexion limited to 120 degrees, abduction to 82 degrees, external rotation to 90 degrees and internal rotation to 50 degrees. In December 2008, the Veteran reported that his right shoulder pain was stable. In October 2009, the Veteran reported only intermittent pain in his shoulder, specifically occasional pain at night. The right shoulder had full range of motion with mild crepitation noted at the rotator cuff. In November 2009, the Veteran underwent a VA examination to assess the severity of his right shoulder disability. He reported pain, instability, and daily episodes of dislocation or subluxation and locking. Examination revealed right shoulder crepitus, tenderness, pain at rest, instability, abnormal motion, and guarding of movement. Flexion was limited to 90 degrees, abduction to 90 degrees, internal rotation to 45 degrees, and external rotation to 45 degrees. There was no additional loss of range of motion after repetitive use. Ankylosis was not found on examination. X-ray imaging found mild degenerative changes in the shoulder, and he was diagnosed with degenerative joint disease. In February 2010, VA treatment records reflect full range of motion. In March 2010, the Veteran submitted a statement contesting the previous VA examination. He reported that his pain was worse than before his surgery in June 2007. He stated that the pain was constant. In April 2012, the Veteran sought to obtain a letter from his VA clinician regarding his right shoulder disability. In that examination, decreased range of motion was noted in abduction, as well as internal and external rotation of the shoulder, but precise measurements were not provided. In December 2012, the Veteran underwent a VA examination primarily to assess his left shoulder; however, findings pertaining to the right shoulder are relevant to the present appeal. In this examination, localized tenderness or pain on palpation was noted in the right shoulder. Muscle strength in the right shoulder was normal or demonstrated active movement against some resistance. There was no indication of ankylosis. There was no indication of recurrent dislocation, nor was there an impairment of the clavicle or scapula noted with respect to the right side. In April 2015, the Veteran testified before a Veterans Law Judge. While the hearing focused primarily on his left shoulder, the Veteran also discussed symptoms related to his right shoulder disability. He stated that his range of motion in the right shoulder was limited to midway between the side and shoulder level. He stated that his right shoulder disability primarily “stayed the same” following the initial 30 percent rating following rehabilitation, but his range of motion would interfere with overhead work or weighted lifts above his waist. The Veteran underwent another VA examination to assess his right shoulder disability in August 2015. The examination diagnosed right shoulder impingement syndrome, rotator cuff tendonitis, and degenerative arthritis. He reported experiencing significant limitations in range of motion with periodic flare ups that occurred with increased overhead activities approximately two to three times per month. Flexion was limited to 60 degrees, abduction to 60 degrees, external rotation to 45 degrees, and internal rotation to 45 degrees. Repetitive use testing was not conducted as the Veteran reported that pain prohibited him from doing repeated examination maneuvers. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare ups. Pain and lack of endurance significantly limited functional ability with flare ups, but the examiner determined that there was no increased loss of range of motion during flare ups. There was no muscle atrophy found on examination, nor was ankylosis present. Shoulder instability, dislocation, or labral pathology were not found. Similarly, there was no indication of a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition present. No conditions or impairments of the humerus were found on examination. Overall functional impairment resulted in lack of tolerance for overhead activities. Subsequent VA treatment records reflect physical therapy for his shoulder. Flexion in February 2017 was limited to 95 degrees. In April and May of the same year, flexion remained the same. In June 2017, flexion increased to 108 degrees. The Veteran underwent another VA examination to assess his right shoulder disability in October 2017. While the examination itself was found to be insufficient by the Court as it did not adequately capture any increased functional impairment during flare ups, the examination itself still provides pertinent information in the present appeal. The Veteran endorsed chronic pain in the right shoulder. He used a home exercise program with rubber bands to employ techniques taught during physical therapy. The Veteran stated that he had flare ups that were “activity related”, but he did not describe whether these flare ups additionally limited range of motion. He described his functional loss as including difficulty lifting heavy items or equipment, as well as reaching overhead to perform tasks. He remained employed as a telecommunication equipment installer and troubleshooter. Flexion was limited to 85 degrees on examination with abduction limited to 90 degrees, external rotation to 80 degrees, and internal rotation to 80 degrees. There was pain noted with lifting moderate or heavy items, as well as lifting light items above 90 degrees. Repetitive use testing did not additionally limit range of motion. Pain caused functional loss with repeated use over time, but range of motion remained unchanged. Muscle strength was normal with no atrophy noted. There was no ankylosis identified. There was no indication of impairment to the clavicle, scapula or humerus. Following the June 2019 JMR, another VA examination was obtained to assess the severity of the Veteran’s right shoulder disability in December 2019. The Veteran described improvement in his shoulder condition following the 2007 surgical procedure, but some worsening thereafter. He endorsed daily pain in his shoulders, as well as difficulty lifting or carrying heavy items, and performing repetitive work with the upper extremities that placed stress on the shoulders. He worked as a telecommunication equipment installer and troubleshooter until January 2019, but he believed himself to be “unemployable” in his prior job due to his shoulder disabilities, as well as other musculoskeletal conditions. The Veteran endorsed flare ups that consisted of more severe pain related to his activities or cold, wet weather. He did not describe additional loss of range of motion. Flexion in the right shoulder was limited to 90 degrees with abduction to 90 degrees, external rotation to 80 degrees, and internal rotation to 80 degrees. Pain was noted on examination that caused functional loss, specifically with respect to overhead activities and activities that require significant movement of the shoulder. There was pain with weight bearing, and tenderness or pain on palpation, but no evidence of crepitus. Repetitive use testing was conducted, but it did not additionally limit range of motion. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, fatigue, and lack of endurance were estimated to significantly limit functional ability with repeated use over time. The examiner considered the medical and lay evidence of record and determined that it was more likely than not that pain, fatigability or decreased endurance would potentially and significantly limit the Veteran’s functional ability with repeated use over time. Only a few additional degrees of loss of range of motion, at most 10 degrees, would be expected in this situation, and would occur briefly until the pain subsided. Similarly, the Veteran’s history, examination, and review of the record supported a finding that it was more likely than not that pain, fatigability or decreased endurance would potentially and significantly limit the Veteran’s functional ability with flare ups. Mild additional loss of range of motion, at most 10 degrees in each direction, would be expected, and would persist as long as one to two days with more severe flare ups. On occasion, the flare up could last for one to two weeks if extremely severe. Muscle strength remained normal with no evidence of atrophy. Similarly, there was no finding of ankylosis, clavicle or scapular condition, or impairment of the humerus. The examiner assessed overall functional impairment as an inability to do heavy duty manual work or a job that required repetitive use of the upper extremities throughout the day. He was otherwise able to do light duty work, and the Veteran reported being able to work his previous job because he was in a supervisory role and could ask another individual to assist with labor. The Board finds that the December 2019 VA examination is highly probative on the issue of additional functional impairment during flare ups or after repetitive use over time. The examiner considered the evidence of record, including the Veteran’s lay statements and the concurrent in-person examination to determine that additional loss of range of motion would be, at most, 10 degrees in each area of measurement. The Veteran has not submitted lay statements indicating more severe limitations in range of motion other than those assessed by this examiner. Thus, the examiner met the requirements of Sharp, supra, and the examination is highly probative with regard to impairments caused by the right shoulder disability. In sum, the evidence of record reflects chronic pain and limitations of motion throughout the appellate period. Pain fluctuated over the previous decade, but range of motion measurements, including when considering additional loss during flare ups and with repetitive use over time, were no worse than limitation to midway between the side and shoulder level. The Veteran has not provided lay statements indicating that his range of motion diminished to below this level. In fact, the Veteran confirmed range of motion limited to midway between the shoulder and side in his April 2015 hearing. The focus of the Veteran’s descriptions of additional limitation during flare ups involves increased pain. As assessed by the December 2019 examination, which was based upon a review of the record and examination of the Veteran, the examiner determined that repetitive use over time and flare ups would cause, at most, an additional 10 degrees of limitation of motion. Even if applied to the most severe limitations of motion assessed in August 2015, such would not additionally limit range of motion to 25 degrees from the side. Accordingly, the Veteran’s right shoulder disability is entitled to a 30 percent rating, but no higher, throughout the appellate period. The Board has considered whether other Diagnostic Codes might warrant an additional rating, to include Diagnostic Code 5202 as noted by the Court in the JMR. While the November 2009 VA examination noted instability and daily episodes of dislocation or subluxation, such is inconsistent with the Veteran’s lay statements and concurrent medical treatment records. At that time, the Veteran reported improvement in his right shoulder disability following the June 2007 surgery. He sought routine treatment to track the progress of his disability, and those examinations did not note recurrent dislocations or subluxation. In May 2008, VA treatment records note a history of capsular laxity that was restabilized in August 2007. The Veteran was noted to recover very well with “nearly complete resolution of his right shoulder pain.” In October 2009, just one month before the VA examination at issue, the Veteran was found to have full range of motion with only mild crepitation. Shortly after the November 2009 VA examination, in February 2010, the Veteran was again found to have full range of motion without indication of recurrent dislocation of subluxation. At the time of the examination at issue, the Veteran was experiencing chronic laxity of his left shoulder, which was similar to the symptoms of his right shoulder prior to the August 2007 repair and stabilization. Thus, on the issue of recurrent dislocation or subluxation in the right shoulder as noted in the November 2009 VA examination, the medical and lay evidence of record from the same period of time disputes these findings. Accordingly, the Board affords significantly heightened probative weight to the medical treatment records and lay statements from that time indicating only a history of laxity that was stabilized in August 2007 and resolved by the November 2009 examination. Subsequently, the December 2012, August 2015, October 2017, and December 2019 VA examinations deny a history of recurrent dislocation or subluxation, and those findings are supported by medical treatment records throughout this period. With regard to other Diagnostic Codes, the medical evidence of record does not indicate ankylosis, other impairment of the humerus, or an impairment of the clavicle or scapula. Accordingly, the Veteran is not entitled to additional ratings for his right shoulder disability under other Diagnostic Codes. The Board has also considered the Veteran’s contentions that his right shoulder disability is more disabling than his currently evaluated 30 percent rating. The Board notes that the Veteran is competent to report that he has symptoms such as pain, limited range of motion, and difficulty with overhead work. When, however, the interpretation of objective medical tests is involved, lay evidence is not competent to assess the severity of the disorder. Thus, because the Diagnostic Code requires measurements of the Veteran’s ability to flex and abduct his shoulder, or a medical opinion diagnosing ankylosis of the shoulder joint, the Veteran is not competent to render an opinion with respect to the severity of his condition. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Furthermore, the lay evidence of record does not assert more severe restrictions in range of motion than assessed with his present rating. The Veteran describes difficulty performing his previous job, which required working overhead and lifting moderate to heavy objects during installation. The issue of TDIU has been raised by the record and is remanded herein. However, the Veteran has not described more severe limitations in range of motion of his shoulder, instead confirming range of motion limited to midway between shoulder level and his side in the April 2015 hearing. Consequently, the Veteran’s lay statements alone cannot sustain a finding of more severe limitations in range of motion. Based on the foregoing, the claim of entitlement to a rating in excess of 30 percent for a right shoulder disability is denied. The preponderance of the evidence is against the Veteran’s claim; thus, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REASONS FOR REMAND 2. The claim of entitlement to TDIU is remanded. Throughout the record, the Veteran has asserted that his shoulder disabilities cause significant impairment in his employment. Most recently, he described losing employment due to his shoulder disabilities in January 2019. With the Veteran’s multiple disabilities, he has been in receipt of a combined disability evaluation of 80 percent since October 2017, thereby qualifying for schedular TDIU. Unfortunately, development has not been conducted on this issue, to include obtaining basic information about the Veteran’s previous employment. Accordingly, remand is necessary in order to obtain additional employment information from the Veteran. (CONTINUED ON NEXT PAGE) The matters are REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-8940, Application for TDIU. Obtain clarification from the Veteran regarding his work history, to include a statement as to his current employment status. All actions to obtain the requested information should be documented in the claims file. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.