Citation Nr: 21004367 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-02 698 DATE: January 26, 2021 ORDER Entitlement to a rating higher than 20 percent for right shoulder limitation of motion is denied. Entitlement to a rating higher than 20 percent for right shoulder recurrent dislocation is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entire appeal period, the most probative evidence does not show that the Veteran’s right shoulder disability has been productive of right arm limitation of motion to midway between the side and shoulder or less; or, to 25 degrees from side; or, ankylosis. 2. For the entire appeal period, the most probative evidence does not show that the Veteran’s right shoulder recurrent dislocation has been productive of frequent episodes and guarding of all arm movements; or malunion of marked deformity. 3. The Veteran failed to complete a VA Form 21-8940 and the evidence is insufficient to establish that he is unemployable as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 20 percent for right shoulder limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5201. 2. The criteria an initial rating higher than 20 percent for right shoulder recurrent dislocation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Code 5202. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to September 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified before the undersigned at a Board hearing held via videoconference. These matters were remanded in February 2019 for further development. Previously, the Veteran’s right shoulder limitation of motion was rated as 10 percent disabling. The Board observes; however, in a May 2020 rating decision, the RO assigned a 20 percent rating for right shoulder limited motion effective for the entire appeal period. As the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Entitlement to an initial rating higher than 20 percent for right shoulder limitation of motion 2. Entitlement to an initial rating higher than 20 percent for right shoulder recurrent dislocation The Veteran is right hand dominant. His right shoulder limitation of motion is rated under Code 5201 and his right shoulder recurrent dislocation is rated under Code 5202. A minimum compensable evaluation of 20 percent for the major extremity is available for limitation of motion of the arm under 38 C.F.R. § 4.71a, Code 5201, when motion is limited to shoulder level. A 30 percent rating is warranted for limitation of motion of the arm that is midway between side and shoulder level. The highest 40 rating is warranted when motion is limited to 25 degrees from side. Normal range of motion for the shoulder is flexion to 180 degrees; abduction to 180 degrees; external rotation to 90 degrees; and internal rotation to 90 degrees. 38 C.F.R. § 4.71 Plate I. Additionally, under Code 5202, for impairment of the humerus, a 20 percent rating is granted when there is malunion, with moderate deformity, for the major arm; a 30 percent rating is warranted when there is marked deformity of the major arm. Also, under Code 5202, for recurrent dislocations of the major arm at the scapulohumeral joint, a 20 percent rating is granted with infrequent episodes, and guarding of movement only at shoulder level; a 30 percent rating is granted for the major arm when there are frequent episodes and guarding of all arm movements. For fibrous union of the major arm a 50 percent rating is assigned for the major arm. A 60 percent rating is warranted for nonunion (false flail joint) of the major arm. An 80 percent rating is warranted for loss of head of (flail shoulder) for the major arm. 38 C.F.R. § 4.71a, Code 5202. During a March 2013 VA examination, the Veteran was diagnosed with right shoulder arthritis and instability. Range of motion revealed right shoulder flexion to 110 degrees; abduction to 135 degrees. He was able to perform repetitive use testing with at least three repetitions without any additional range of motion loss in the right shoulder, although he exhibited pain throughout. He exhibited normal muscle strength testing in the right shoulder. There was no indication of right shoulder deformity or guarding of arm movements. There was no ankylosis in the right shoulder. During February 2019 VA examination, the Veteran reported that his right shoulder flare-ups could be described as increased pain with lifting more than 10 pounds. His shoulder has gotten to the point that he has to take cortisone shots every 3 to 4 months and pain pills for the arthritis created by the dislocation of the shoulder. He indicates he is unable to lift things over 10 pounds. He is unable to work. He cannot move certain ways. He cannot do basic chores. He must do things with his left hand and he has to sleep on his left side. Range of motion reveals flexion to 70 degrees; Abduction to 70 degrees; external rotation to 60 degrees; and internal rotation to 50 degrees. Pain noted on examination and causes functional loss in all movements. There is evidence of crepitus. Repeated range of motion revealed flexion to 60 degrees; abduction to 60 degrees; external rotation to 50 degrees; and internal rotation to 50 degrees. Muscle strength revealed some active movement against some resistance. There was no muscle atrophy or ankylosis. The examiner noted that there is a history of right shoulder dislocation with infrequent episodes. Upon careful review of the evidence, the Board finds that the preponderance of the evidence is against assigning a rating more than 20 percent at any time during the appeal. Indeed, the evidence of record does not indicate that the Veteran’s right shoulder disability has been manifested by, or has more nearly approximated, limitation of motion of the right, dominant arm to midway between the side and shoulder level. See 38 C.F.R. § 4.71a, Code 5201. Further, the Board finds that the preponderance of the evidence is against assigning a rating more than 20 percent at any time during the appeal for right shoulder recurrent dislocation. Indeed, there is no evidence of malunion of marked deformity. Also, the Veteran did not have frequent dislocation with guarding of all arm movements as noted especially on the most recent February 2019 VA examination report. The Board has also considered whether the Veteran might be entitled to a higher rating under a different code. As the evidence of record contains no findings of right shoulder ankylosis a rating more 20 percent would not be warranted under Codes 5200. See 38 C.F.R. § 4.71a, Codes 5200 ankylosis. The Board acknowledges the Veteran’s representations regarding pain and difficulty performing certain activities, particularly those involving prolonged, overhead arm use. He is certainly competent to describe his observable symptoms, and the Board finds no reason to doubt the Veteran’s reports. The Board finds; however, the competent and objective medical findings by skilled professionals provide the most persuasive evidence regarding the limitations posed by the Veteran’s right shoulder disability. As indicated above, the most probative evidence of record does not establish that the Veteran’s right shoulder disability has manifested in, or has more nearly approximated, limitation of motion of the right, dominant arm from midway between the side and shoulder level to warrant a rating higher than 20 percent; or frequent episode of dislocations with guarding of all arm movements. Accordingly, the preponderance of the evidence is against assigning a rating more than 20 percent for the Veteran’s right shoulder limitation of motion; as well as a higher than 20 percent rating for right shoulder recurrent dislocation at any time during the appeal 3. Entitlement to a TDIU The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is currently service connected for generalized anxiety disorder at 30 percent, degenerative joint disease of the right shoulder with recurrent dislocation at 20 percent, degenerative joint disease of the right shoulder with limitation of motion at 20 percent, and tinea versicolor at 0 percent. The question in a TDIU claim is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran did not complete VA Form 21-8940 as requested in the May 2020 development letter. Although failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives VA of information as to the Veteran’s employment history, educational history and training, and income information necessary to address a claim for TDIU. “The duty to assist is not always a one-way street.” Wood, 1 Vet. App. at 193. There are several indications that the Veteran was not working during the appeal period. In a June 2012 VA treatment record, the Veteran reported that he has been unemployed for 5 years but helps his son out on and off with his construction business. There is no evidence indicating the Veteran’s employment status throughout the entire appeal, specifically whether he tried to work and was unable to or whether there were other circumstances that kept him from working. His failure to complete the VA Form 21-8940 leaves VA without the ability to request information from his prior employers as to his reason for leaving and leaves the Board without information as to whether the Veteran has since obtained some form of gainful employment. Although the Veteran has asserted in VA examinations that he is not working, none of the VA examiners indicated the Veteran was unemployable as a result of service-connected disabilities. In sum, the Veteran has failed to cooperate with VA’s attempts to develop the claim for TDIU, and the record that is before the Board does not demonstrate that the his service-connected disabilities preclude him from securing or following a substantially gainful occupation as a result of his service-connected disabilities. Thus, the claim for TDIU must be denied. See Wood, 1 Vet. App. at 193. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.