Citation Nr: 21001361 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-11 127A DATE: January 7, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for right shoulder strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record, including the Veteran’s right shoulder range of motion estimated during a flare-up, does not show that his right shoulder strain results in limitation of motion of the arm to midway between side and shoulder level. 2. The Veteran did not meet the schedular criteria for TDIU at any time during the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for right shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2019). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2003 to May 2011. This case is before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and May 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In May 2019, the Board remanded the matters for further development. Now the matters are returned to the Board. 1. Increased rating for right shoulder strain The Board notes that the RO increased the Veteran’s initial evaluation for his service-connected right shoulder strain to 20 percent during the appeal period. See August 2020 Rating Decision. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2019). 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 (2019). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2019). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (2019) (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2019). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Under VA rating criteria, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level; normal shoulder internal and external rotation is 0 degrees to 90 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I (2019). The record shows that the Veteran’s right upper extremity is his dominant extremity. Shoulder strain is evaluated under Diagnostic Code 5201, in pertinent part, a 30 percent evaluation in the major extremity is warranted for limitation of motion of arm to midway between side and shoulder level (e.g., flexion between 25 to 90 degrees), and a maximum 40 percent evaluation in the major extremity is warranted for limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2019). The United States Court of Appeal for the Federal Circuit has held that Diagnostic Code 5201 does not provide separate ratings for limitations on flexion, extension, abduction and rotation, but rather permits only a single rating for limitation of motion of an arm. Yonek v. Shinseki, 722 F.3d 1355, 1359 (Fed. Cir. 2013). On October 2013 VA examination, the examiner noted the Veteran’s right shoulder strain. The Veteran did not report that flare-ups impact the function of his shoulder during this examination. The examiner noted that the Veteran’s right shoulder flexion ended at 180 degrees with no objective evidence of painful motion and abduction ended at 165 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation in range of motion. Muscle strength testing for right shoulder abduction and forward flexion were normal, and the Veteran did not have ankylosis of the shoulder joint. On January 2016 VA examination, the Veteran denied any new injuries to his right shoulder since the last VA examination. He also did not report flare-ups of the shoulder or arm during this examination. The Veteran stated that his arm falls asleep and feels numb when lifting overhead, and massage, chiropractic treatment, stretching, and using TENS unit are helpful for his right shoulder condition. The Veteran’s right shoulder flexion ended at 180 degrees; abduction ended at 165 degrees; and both external and internal rotations ended at 90 degrees. The examiner reported that Veteran’s right shoulder flexion and abduction exhibited pain, but there was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional functional loss or range of motion afterwards. He did not have reduction in right shoulder muscle strength or muscle atrophy. During the February 2019 hearing, the Veteran testified that he has chronic crunching and grinding in his right shoulder and stabbing pain in the front which sometime radiates to the back. He provided that he can tell that his right arm strength is less than the left arm and his range of motion is restricted due to pain. He also stated that he experiences constant spasming that radiates from front collarbone to the shoulder blade which affects his whole upper mid back and right shoulder. During the latest VA examination conducted in August 2019, the Veteran reported that he experiences moderate flare-ups of his right shoulder pain about 5 times per week. The Veteran right shoulder flexion ended at 115 degrees; abduction at 105 degrees; external rotation at 75 degrees and internal rotation ended at 85 degrees. His right shoulder flexion, abduction, and external rotation exhibited pain, and there was evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. The examiner noted that the Veteran’s right shoulder range of motion itself contributes to functional loss as he avoids frequent overhead work activities, moderate to heavy lifting, pushing and pulling. The examiner also noted that the examination was not conducted during a flare-up and it is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner provided that pain and fatigue significantly limit the Veteran’s functional ability with flare-ups. The examiner estimated the Veteran’s range of motion during flare-ups as flexion limited to 115 degrees, abduction limited to 105 degrees, external rotation limited to 75 degrees and internal rotation limited to 85 degrees. The Veteran had positive Hawkin’s impingement test and empty-can test and the examiner reported that rotator cuff condition was suspected. As stated above, the evidence of record must show that the Veteran’s right shoulder strain results in limitation of motion of the arm to midway between side and shoulder level, e.g., flexion between 25 to 90 degrees, in order to warrant the next higher rating of 30 percent. However, the Board finds that the evidence including the estimated range of motion during a flare-up, does not show such level of functional limitation. Therefore, the Board finds that the Veteran’s current initial evaluation of 20 percent is appropriate for his right shoulder strain and his entitlement to an evaluation in excess of 20 percent for the disability is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2019). 2. TDIU A TDIU may be assigned to a veteran who meets certain disability percentage standards and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a) (2019). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a)(2) (2019). Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341 (2019). Alternatively, if a veteran is found to be unemployable because of service-connected disabilities, but does not meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), the rating authority should refer the matter to the Director of the Compensation and Pension Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b) (2019). The veteran is not required to show 100 percent unemployability; the question is whether he or she is unable to pursue a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Whether the veteran can actually find employment is not determinative, as the focus of the inquiry is on “whether the veteran is capable of performing the physical and mental acts required by employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). The Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to ensure that all cases where there is evidence of unemployability due to service-connected conditions are referred to the Director of Compensation Service for initial consideration under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). Here, the Veteran is currently service-connected for right shoulder strain at 20 percent disabling from May 31, 2011, facial scars of left cheek and left upper lip at 10 percent disabling from May 31, 2011, perioral dermatitis at 0 percent disabling from May 31, 2011, and thoracic strain (claimed as back pain) at 0 percent disabling from October 22, 2013. As such, the Veteran’s current combined disability rating is 30 percent from May 31, 2011. Therefore, the Veteran did not meet the schedular criteria for TDIU at any time during the entire period on appeal, because he does not have one disability ratable at 40 percent with combined disability rating of at least 70 percent. 38 C.F.R. § 4.16(a) (2019). The Board also has considered whether referral for an extraschedular TDIU is warranted under 38 C.F.R. § 4.16(b), but finds that the evidence does not more nearly reflect that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board notes that the Veteran is currently employed and works in semiconductor field service industry. See February 2019 Hearing Transcript, at 5. The Veteran testified that he has missed about a week of work per year due to his right shoulder pain since he started his job in 2015. Id., at 9. He provided that his right shoulder disability affects his ability to work because 50 percent of his job involves physical labor such as using tool and bending over. Id., at 9. Also, the previous VA examination reports show that his right shoulder disability impacts his ability to work because he needs to avoid frequent overhead work activities, moderate to heavy lifting, pushing and pulling. Based on above, the Board does not doubt that the Veteran’s right shoulder strain impacts his ability to work to a certain degree; thus, the disability is appropriately rated at 20 percent disabling. However, based on the evidence of record, the Board cannot find that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected right shoulder strain. Therefore, the Board concludes that the referral of this case to the Director of Compensation Service for an extraschedular TDIU consideration under 38 C.F.R. § 4.16(b) is not warranted. Consequently, the Board finds that the Veteran’s entitlement to TDIU is not warranted and his appeal must be denied. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.