Citation Nr: 21001046 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 10-24 524 DATE: January 6, 2021 ORDER Entitlement to a rating in excess of 50 percent for a left shoulder disability on an extra-schedular basis is denied. FINDING OF FACT The impairment owing to the Veteran’s left shoulder disability, including the postoperative residuals of his left shoulder replacement, is contemplated by the diagnostic code used to rate this service-connected disability. CONCLUSION OF LAW The criteria are not met for entitlement to a higher rating on an extra-schedular basis for the left shoulder disability, including for the postoperative residuals of the left shoulder replacement. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5051.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1959 to December 1985. This appeal to the Board of Veterans’ Appeals (Board) is from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that confirmed and continued a 20 percent rating then in effect for the Veteran’s left shoulder disability. The Veteran testified in support of this claim for a higher rating for this disability during a hearing in July 2013 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. A subsequent September 2016 Board decision increased the rating for the left shoulder disability to 50 percent but declined to refer the claim to the Director of the Compensation Service for consideration of an even higher rating on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1). The Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court) and, in a September 2018 decision, the Court set aside the portion of the Board’s September 2016 decision that had declined to refer this claim for extra-schedular consideration. The Court remanded this portion of the claim to the Board to make a determination on this referral, so in June 2019 the Board remanded this portion of the claim to the Agency of Original Jurisdiction (AOJ), i.e., RO for a determination on whether this claim should be referred to the Director of Compensation Services for extra-schedular consideration. This claim again returned to the Board in March 2020, however, the Board found there had not been substantial compliance with the June 2019 remand directive. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the AOJ (RO) had not, as instructed, determined whether this claim should be referred for extra-schedular consideration. Thus, the claim was again remanded in March 2020.   Later in March 2020, the AOJ issued a Supplemental Statement of the Case (SSOC) concluding this claim did not meet the requirements for referral for extra-schedular consideration. It also warrants mentioning that the Veteran also previously claimed entitlement to a total disability rating based on individual unemployability (TDIU) as part of this increased-rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, a November 2020 Board decision since issued determined he was entitled to a TDIU for the entire period on appeal, so this derivative TDIU claim is no longer at issue in this appeal since it has been fully granted. Entitlement to a rating in excess of 50 percent for the left shoulder disability on an extra-schedular basis The Veteran contends that he is entitled to a rating higher than 50 percent for his left shoulder disability because the extent of his symptoms and consequent impairment is not contemplated by this rating. Of note, throughout the pendency of this appeal, he has been in receipt of the highest possible schedular rating of 50 percent for residuals of replacement of the minor shoulder after the one-year period, post-surgery, during which the disability instead is rated as 100-percent disabling owing to specific mandate in the applicable VA regulation and governing diagnostic code. He also had a temporary 100 percent rating under 38 C.F.R. § 4.30 owing to his need to convalesce following his left shoulder replacement surgery. As such, this appeal only pertains to his claim for a higher rating on an extra-schedular basis, meaning a rating higher than 50 percent for the occasion when this disability was not, instead, rated as 100-percent disabling. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Concerning his left shoulder disability, the Veteran is currently service connected for residuals of a left shoulder replacement under Diagnostic Code 5051; thus, there is contemplation of shoulder replacement (prosthesis/arthroplasty) of the minor (non-dominant) shoulder. And, to reiterate, he has had the highest possible schedular rating for this disability for the entire period on appeal. Handedness for the purpose of a dominant rating will be determined by the evidence of record or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, the evidence of record shows the Veteran’s right hand is his dominant hand. Thus, his right hand and right shoulder are his dominant hand and shoulder, so the rating criteria applied are instead for the “minor” shoulder. According to Diagnostic Code 5051 for shoulder replacement, a 50 percent rating is warranted for chronic residuals consisting of severe, painful motion or weakness in the affected minor extremity. A higher 100 percent rating is only allowed on a schedular basis for the one-year period following the shoulder replacement surgery. 38 C.F.R. § 4.71a, DC 5051. The record shows that the Veteran underwent left shoulder replacement surgery in 2007 and was awarded a 100 percent rating pursuant to Diagnostic Code 5051, effective from May 2007 to May 2008. After this one-year period, the Veteran’s left shoulder replacement was provided a schedular rating based on residuals pursuant to Diagnostic Code 5051. See 38 C.F.R. § 4.71a, DC 5051. And, as already explained, the Veteran already had a 100 percent rating during the permissible one year following his left shoulder replacement surgery. In fact, he had a 100 percent rating for slightly even longer since he was additionally granted a temporary 100 percent rating under the provisions of 38 C.F.R. § 4.30 because of his need to convalesce following his left shoulder replacement surgery. That notwithstanding, in exceptional cases an extra-schedular rating may be assigned pursuant to 38 C.F.R. § 3.321(b)(1), and the Veteran contends that the residuals of his left shoulder replacement surgery constitute such an exceptional case or circumstance. The Court has set out a three-part test, based on the language of § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). During his December 2008 VA examination, the Veteran complained of pain in his left shoulder but denied any weakness. A March 2009 letter from a private doctor, Dr. D.B., states the Veteran “now has evidence of a complete rotator cuff deficiency producing substantial weakness.” At a July 2009 VA examination, the Veteran reported that his left shoulder residuals cause weakness, stiffness, giving way, lack of endurance, tenderness, and pain – which he rated as a 9 on a scale from 1 to 10 during flare-ups. An August 2009 private treatment record shows the Veteran’s left shoulder pain was improving with physical therapy. A separate August 2009 private treatment record from the same physical therapist shows the Veteran denied any shoulder pain. The report of a January 2013 VA examination shows the Veteran continued to complain of pain in his left shoulder and had a flexion in this shoulder to 90 degrees, with pain starting at 90 degrees (so not until the endpoint. His functional loss was described as less movement than normal with painful motion, and muscle strength was 4 out of 5 in both flexion and abduction, where a 5 represents full muscle strength. During his July 2013 hearing, the Veteran testified that his left shoulder pain was severe when it rains. At a June 2014 VA examination, the Veteran again complained of pain on movement and the examiner noted weakness on movement. More specifically, the examiner indicated the Veteran had chronic residuals from his left shoulder replacement surgery that resulted in severe painful motion and weakness. A July 2015 private treatment record shows the Veteran denied any shoulder pain. A June 2018 private treatment record shows he presented complaining of multiple problems, including referable to his left shoulder. At this visit, the doctor noted that the Veteran “has noticed over the last couple of years increasing discomfort in his left shoulder. It is becoming more and more difficult to do things without pain.” In a January 2019 affidavit, the Veteran attested that, after his initial left shoulder replacement surgery in 2007, he has had one additional surgery, was scheduled for a second in January 2019, and had suffered constant pain that he rated as a “7 or 8 on a 1-10 pain scale.” He further stated that over-the-counter medicine did not help to alleviate his pain. A January 2019 preoperative note shows the Veteran was to undergo a reversal of his left shoulder replacement surgery that was “more likely to be successful in solving his pain compared to improving his function.” The record on appeal also indicates he underwent this additional surgery the next day. A February 2019 postoperative note shows he reported his left shoulder to be relatively pain free after that additional January 2019 surgery. A private treatment record from March 2019 shows the Veteran reported that he felt his left shoulder was “getting better with regards to pain” but that it was still weak. Private treatment records also show he consulted a physical therapist multiple times in May 2019, however, it mostly appears that he was receiving physical therapy, instead, for issues with his low back (lumbar spine). A July 2019 private treatment record of a post-operative visit (meaning stemming from his additional left shoulder surgery in January 2019) shows he reported “regression in some of his discomfort in the shoulder since about June 2019.” In correspondence received in September 2019, the Veteran’s attorney indicated the Veteran receives treatment for his conditions at four different private medical treatment centers. There was no indication by the attorney that the Veteran receives ongoing care from VA.   The schedular rating criteria contemplate the Veteran's left shoulder disability in terms of its associated symptoms and consequent functional and other impairment. Throughout the entirety of this appeal, he has complained of severe pain and has had weakness in this shoulder’s joint, but these manifestations are directly contemplated by the applicable schedular rating criteria. Moreover, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 require that impairment owing to pain be taken into account in determining the appropriate schedular rating. See also Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Indeed, this is true even when the disability at issue does not involve arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Consider also that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Therefore, to find an extra-schedular rating warranted based upon such impairment would be in violation of the prohibition against pyramiding. See 38 C.F.R. § 4.14. The Veteran and his attorney have not identified any other manifestation of the left shoulder disability during the pendency of this appeal that is not contemplated by the applicable schedular rating criteria.   For these reasons and bases, the Board finds the schedular rating criteria are adequate to evaluate the Veteran's service-connected left shoulder disability, in turn, meaning referral for consideration of an extra-schedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.