Citation Nr: 21003420 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-20 028 DATE: January 21, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to October 30, 2019 for right shoulder bursitis is denied. Entitlement to a rating in excess of 20 percent prior to October 30, 2019 for left shoulder bursitis is denied. Entitlement to a rating in excess of 40 percent from October 30, 2019 for right shoulder bursitis is denied. Entitlement to a rating in excess of 30 percent from October 30, 2019 for left shoulder bursitis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to October 30, 2019, the Veteran’s right shoulder bursitis was not manifested by limitation of the arm midway between side and shoulder level. 2. Prior to October 30, 2019, the Veteran’s left shoulder bursitis was not manifested by motion limited to 25 degrees from side. 3. From October 30, 2019, the Veteran’s right and left shoulder bursitis is manifested by no more than limitation of motion to 25 degrees from the side without ankylosis. 4. The evidence does not indicate that the Veteran’s service-connected disabilities are sufficiently severe to inhibit his ability to obtain gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent prior to October 30, 2019 for right shoulder bursitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. 2. The criteria for entitlement to a rating in excess of 20 percent prior to October 30, 2019 for left shoulder bursitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. 3. The criteria for entitlement to a rating in excess of 40 percent from October 30, 2019 for right shoulder bursitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. 4. The criteria for entitlement to a rating in excess of 30 percent from October 30, 2019 for left shoulder bursitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. 5. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16 . REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from November 1970 to September 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 rating decision by a Department of Veterans Affairs Regional Office (RO). During the pendency of the appeal, an October 2020 rating decision granted an increased rating of 40 percent for right shoulder bursitis and an increased rating of 30 percent for left shoulder bursitis. As this rating is not the maximum allowable, that issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). This case was previously remanded by the Board in March 2019 for further development. After further development, this matter is now ready for adjudication. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). For musculoskeletal disabilities, functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. , quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. 1. Entitlement to a rating in excess of 40 percent for right shoulder bursitis 2. Entitlement to a rating in excess of 30 percent for left shoulder bursitis The Veteran is seeking an increased rating for his right and left shoulder bursitis. Prior to October 30, 2019 The Veteran’s right shoulder bursitis was rated as 20 percent disabling and his left shoulder bursitis was rated as 20 percent disabling under diagnostic code 5201. Additionally, the Veteran’s right shoulder was rated as 100 percent disabling from the period between March 13, 2015 and May 1, 2015 and his left shoulder was rated as 100 percent disabling from the period between February 27, 2017 and April 1, 2017. Diagnostic Code 5201 provides for a 20 percent rating for motion limited at the shoulder level in the dominant extremity; a 30 percent rating for motion limited to midway between side and shoulder level in the dominant extremity, and a 40 percent rating for motion limited to 25 degrees from side in the dominant extremity. DC 5201 also provides for a 20 percent rating for motion limited at the shoulder level in the non-dominant extremity; a 20 percent rating for motion limited to midway between side and shoulder level in the non-dominant extremity, and a 30 percent rating for motion limited to 25 degrees from side in the non-dominant extremity. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 20 percent for right and left shoulder bursitis prior to October 30, 2019. Specifically, the Veteran was afforded a VA examination of his shoulders in July 2015. He reported flare ups with pain when lifting or carrying heavy objects above mid-chest height and doing overhead work. The Veteran also reported experiencing flare-ups once a week, that were moderate and lasted from 1-2 days. The Veteran is right-handed. Range of motion in the right shoulder was 80 degrees on flexion with pain and 70 degrees in abduction with pain. Range of motion in the left shoulder was 100 degrees in flexion with pain and 90 degrees in abduction with pain. No further reduction in range of motion was found upon repetition. The examiner noted the Veteran’s muscle strength as 4/5 muscle strength, no ankylosis, and no atrophy. The Veteran tested positively for the Hawkins’ Impingement Test, External Rotation/Infraspinatus Strength Test, Lift-Off Subscapularis Test in the right shoulder and tested positive for Hawkins’ Impingement Test, External Rotation/Infraspinatus Strength Test in the left shoulder. The examiner stated that the Veteran can perform light sedentary activities. The Veteran was afforded a new VA examination of his shoulders in March 2017. The Veteran underwent left shoulder surgery in February 2017. The Veteran reported no flare ups. Range of motion testing revealed right shoulder flexion limited to 95 degrees, 100 degrees in abduction, 65 degrees in external rotation, and 45 degrees in internal rotation. The Veteran was unable to elevate his right arm above 90 degrees. Range of motion testing on the left shoulder revealed flexion limited to 30 degrees, 30 degrees in abduction, and external and internal rotation to 25 degrees. No additional range of motion on repetitive testing was noted. The Veteran’s range of motion in the right shoulder was reduced due to chronic degenerative joint disease. The examiner noted that the Veteran experienced pain with elevation and pain that occurs with movement of left arm at the shoulder in all parameters at this point from recent surgery. The Veteran tested positive for Hawkins and Lift-Off Subscapularis Test in the left shoulder. However, the examiner noted full muscle strength, no atrophy, and no ankylosis. The examiner concluded that the Veteran’s bilateral shoulder problems would prevent him from any moderate or heavy lifting with upper extremities. The evidence shows that the Veteran’s right shoulder bursitis does not result in limitation of the arm midway between side and shoulder level, to warrant a 30 percent rating. Further, the evidence shows that the Veteran’s left shoulder bursitis does not result in motion limited to 25 degrees from side, to warrant a 30 percent rating. In sum, the preponderance of the evidence is against a disability rating in excess of 20 percent for right shoulder bursitis and a disability rating in excess of 20 percent for left shoulder bursitis prior to October 30, 2019. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for an increased rating is denied. From October 30, 2019 The Veteran’s right shoulder bursitis is currently rated as 40 percent disabling and his left shoulder bursitis is currently rated as 30 percent disabling under diagnostic code 5201. The Veteran was afforded an examination in October 2019 for his shoulders. The Veteran reported that he was unable to lift more than 15 pounds, unable to work with arms/hands overheard, and unable to drive longer than 15 minutes due to shoulder. Additionally, he reported that his shoulder pain has progressed. Specifically, he stated that his shoulders tighten up, the pain increases, and it stops him from doing anything. Further, the Veteran stated that he had to stop truck driving because of his shoulder pain. Range of motion testing of the right shoulder revealed flexion limited to 80 degrees, abduction to 70 degrees, external rotation to 60 degrees and internal rotation to 50 degrees. The examiner noted pain on exam that causes functional loss. Range of motion testing of the left shoulder revealed flexion limited to 80 degrees, abduction to 70 degrees, external rotation to 60 degrees, and internal rotation to 50 degrees. Upon repetitive testing, the Veteran’s right shoulder flexion was limited to 60 degrees, abduction to 50 degrees, and external and internal rotation limited to 30 degrees and left should flexion limited to 60 degrees, abduction to 50 degrees, and external and internal rotation to 30 degrees. The examiner noted weakness and pain on repeated use. The Veteran exhibited bilateral shoulder muscle strength of 3/5 on forward flexion and 4/5 on abduction. No atrophy or no ankylosis was shown. The Board finds that ratings in excess of 40 percent for right shoulder bursitis and 30 percent for left shoulder bursitis are not warranted. The Veteran is currently in receipt of the highest available rating for limitation of range of motion in each shoulder. There is no evidence of ankylosis. The ratings assigned contemplate the Veteran’s limitation of motion, pain, loss of strength, and movement. 38 C.F.R. § 4.40. Further, there was no evidence of crepitus and no indication that there was additional functional limitation not contemplated by the ratings already assigned. Therefore, ratings in excess of 40 percent for right shoulder bursitis and 30 percent for left shoulder bursitis are denied. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran asserts that he is unable to work because of his service-connected disabilities. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 a ). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to C&P for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In all cases, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). After a review of the evidence of record, the Board determines that TDIU is not warranted. The Board notes that in the previous Remand, the Board instructed VA to conduct any necessary development for the issue of TDIU. On July 23, 2020, VA sent the Veteran a letter providing a TDIU application, VA Form 21-8940, and requested additional occupational information. However, to date no response has been received. The information requested in these forms is crucial for the Board to make an informed decision as to the Veteran’s ability to obtain or maintain substantially gainful employment. The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (a threshold requirement in TDIU claims is that a veteran is unable to secure and follow a substantially gainful occupation. In this instance, by providing no specific employment information, the Board is unable to determine when the Veteran was employed and unemployed. During his August 2018 hearing, the Veteran reported that he had to leave his job as a truck driver in 2005 because he could no longer do his job. However, the Board has no way of knowing whether this was gainful employment, what ailments may have stopped him from working previously, and critically, the date he claims he became too disabled to work. The Board cannot begin to determine the Veteran’s eligibility for a TDIU without the basic information outlined above. Therefore, the Board must deny the Veteran’s claim for a TDIU.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vample, Associate Counsel