Citation Nr: 21004461 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-06 461A DATE: January 27, 2021 ORDER Entitlement to a rating in excess of 30 percent for service-connected tendonitis/impingement syndrome of the left shoulder (left shoulder disability) since June 1, 2011 is denied. Entitlement to a total disability rating based upon unemployability (TDIU) is denied for the period from June 1, 2011 to September 9, 2011. FINDINGS OF FACT 1. The probative evidence of record indicates that even during flare-ups, the Veteran’s left shoulder disability has limited motion midway between the side and shoulder level, but not to 25 degrees from the side. 2. From June 1, 2011 to September 9, 2011, the Veteran’s service-connected disabilities have not prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience. CONCLUSIONS OF LAW 1. Since June 1, 2011, the criteria for a rating in excess of 30 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.71, 4.71a, Diagnostic Code 5201. 2. For the period from June 1, 2011 to September 9, 2011, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1986 to September 1990; January 1991 to July 1991; and November 2004 to February 2006, with additional periods of Reserves service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2011 rating decision. The Board remanded the claim to the agency of original jurisdiction (AOJ) in August 2017, August 2018, and October 2019. The development requested has been completed and the case has been returned to the Board. The Board notes that the August 2011 rating decision on appeal was an effectuation of a grant of service connection by the Board in March 2011. In the August 2017 Board Remand, the Board characterized the Veteran’s claim as an initial rating from June 1, 2011 and that only the period from June 1, 2011 would be on appeal. The Veteran has not contested the characterization of the period on appeal; thus, the Board will only adjudicate the Veteran’s claim from June 1, 2011 forward. Further, in the August 2017 Remand, the Board referred the issue of entitlement to a total disability rating based upon unemployability (TDIU) to the AOJ. In March 2018, the AOJ denied the claim as moot because the Veteran has been rated at 100 percent disabling from September 9, 2011. However, the Veteran raised his claim for a TDIU in relation to his left shoulder disability which has been on appeal since June 1, 2011. Therefore, entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). Thus, the period from June 1, 2011 to September 9, 2011 must be addressed. The record reflects that the Veteran received a letter in October 2020 indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. He withdrew his request for a hearing in June 2016. Increased Ratings 1. Entitlement to a rating in excess of 30 percent for service-connected left shoulder disability The Veteran contends that he should be awarded an increased rating for his left shoulder disability because his shoulder is “50 percent” disabled, he can only raise his arm so high, and his shoulder never fully healed after his tumor was removed. By way of history, the Veteran was granted a 30 percent rating under Diagnostic Code 5051, from April 1, 2012, the minimum rating available after prosthetic shoulder replacement surgery. However, a September 2013 rating decision found that that the earlier August 2011 rating decision was “clearly and unmistakably erroneous because [his] surgery was a resurfacing hemiarthroplasty, not a prosthetic replacement of a shoulder joint.” Thus, the Veteran was awarded a 30 percent rating from June 1, 2011, the date he returned to work. Instead of a rating under Diagnostic Code 5051, he was assigned a 30 percent rating under 5201. The Veteran has not asserted that Diagnostic Code 5051 for a prosthetic shoulder replacement should apply. Thus, the Board will not consider a higher rating under that criteria. Disability ratings are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Diagnostic Code 5200 assigns disability ratings based on evidence of ankylosis of the scapulohumeral articulation; Diagnostic Code 5201 assigns disability ratings based on limitation of shoulder motion; Diagnostic Code 5202 assigns disability ratings based on impairments of the humerus, to include malunion, recurrent dislocation of the scapulohumeral joint, fibrous union of the humerus, nonunion of the humerus (false flail joint), and loss of head of humerus (flail shoulder); and Diagnostic Code 5203 assigns disability ratings based on impairment of the clavicle or scapula, to include malunion, nonunion, and dislocation. Pursuant to 38 C.F.R. § 4.71 Plate I, which illustrates the ranges of motion for various joints, the full range of shoulder abduction and flexion is zero to 180 degrees, with the shoulder level defined as 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran is left-handed, and his left shoulder is his dominant arm. As addressed above, his left shoulder disability has been evaluated pursuant to Diagnostic Code 5201. For the Veteran to obtain the next higher rating of 40 percent for his left shoulder (major), the evidence must show that his range of motion is limited to 25 degrees from the side. 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In a decision, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Evidence The Board finds the January 2020 VA examination to be the most probative. While there are other VA examinations, they do not consider the Veteran’s left shoulder during a flare-up or after repeated use. The Veteran attended a VA examination in January 2020. He reported flare-ups and functional loss as follows: intolerant of excessive activity of bilateral shoulders; intolerant of heavy lifting and prolonged carrying of objects; intolerant of raising bilateral arms overhead. The same description was used throughout the examination to describe his functional impact and additional factors contributing to disability (only the Veteran’s left shoulder is service-connected). Upon range of motion testing, his left shoulder flexion was limited to 90 degrees, abduction to 93 degrees, and external and internal rotation to 34 and 58 degrees respectively. Upon repetitive motion, repeated use, and during flare-ups, the examiner found that range of motion would be limited as follows: shoulder flexion was to 85 degrees, abduction to 88 degrees, and external and internal rotation to 29 and 42 degrees respectively. Upon further testing, testing indicating instability, but there was no recurrent dislocation of the shoulder and his humerus was not affected. Ankylosis was not indicated nor was malunion, nonunion, or dislocation of the clavicle or scapula. The examiner was asked to provide an opinion as to whether pain could significantly limit functional ability during flare-ups and repeated use over time and, if so, to describe it in terms of additional loss of range of motion. The examiner responded as follows: “The veteran has left shoulder condition flare-ups with a frequency of about weekly, lasting a duration of about several days to sometimes weeks, usually with a severity of decreased range of motion of moderate, with a decreased range of motion during flare-ups of about 5 degrees with left shoulder flexion, about 5 degrees with left shoulder abduction, about 16 degrees with left shoulder internal rotation, and about 5 degrees with left shoulder external rotation.” The numbers cited by the examiner align with the range of motion assessed upon repetitive motion, repeated use, and during flare-ups: shoulder flexion was limited to 85 degrees, abduction to 88 degrees, and external and internal rotation to 29 and 42 degrees, respectively. While the other VA examinations do not consider the Veteran’s reduced range of motion during a flare up, they do provide objective measurements of his range of motion: March 2015 (flexion to 80 degrees, abduction to 65 degrees, and external and internal rotation to 40 and 80 degrees, respectively); October 2017 (flexion to 90 degrees, abduction to 75 degrees, and external and internal rotation to 60 and 90 degrees, respectively); May 2019 (flexion to 90 degrees, abduction to 50 degrees, and external and internal rotation to 30 and 90 degrees, respectively). Thus, in considering the range of motion measurements from the various examinations, the January 2020 examination indicated the greatest level of limitation of motion (except for abduction). Given that the January 2020 measurements are the most limited and that the examination considers a greater level of limited motion during flare-ups of pain, the Board finds the examination to be the most probative and gives it great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the other evidence of record but cannot locate meaningful range of motion measurements or descriptions of symptomology that aid in the adjudication of the claim. Most commonly the Veteran reports pain in his left shoulder and received some treatment for it. However, there is no range of motion measurements approximating those found in the January 2020 examination. Further, during the period on appeal, the Veteran sought treatment for many other complaints, to include his non-service-connected right shoulder. Based upon the foregoing, the Veteran’s left shoulder range of motion does not qualify for the assigment of a 40 percent rating under Diagnostic Code 5201. The probative evidence fails to show that his left shoulder range of motion is limited to 25 degrees from the side. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The January 2020 examiner did so but did not find that the Veteran’s left shoulder would be limited to 25 degrees from the side and the objective evidence did not show any other evidence that his range of motion was limited as consistent with a higher 40 percent rating. While the Veteran reported pain, flareups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flareups must be of such length as to establish that the overall impairment is more severe than currently evaluated. In this instance, the Veteran’s statements made in this case do not show that any flareups or repeated use over time have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a higher rating would be warranted. Lastly, that there was no evidence of loss, nonunion, malunion, fibrosis union, or ankylosis of the humerus, clavicle, scapulohumeral, and scapula in treatment notes or VA examinations. Thus, a rating under Diagnostic Codes 5200, 5202, or 5203 is not warranted. The specific clinical measures of ranges of motion, including examiners’ findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran’s report of pain and limitation of function. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion such as to enable a finding that the disability picture more nearly approximates the criteria for a higher rating under Diagnostic Codes 5201. Despite the Veteran’s contention of debilitating left shoulder disability, the disability ratings assigned herein indicate a significant impact on his functional ability. Such disability evaluations assigned by VA recognizes his painful motion. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of those assigned for his left shoulder disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU 2. Entitlement to a TDIU from June 1, 2011 to September 9, 2011 The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there are two or more 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. See 38 C.F.R. § 4.16 (a). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Factors to be considered in determining whether unemployability exists are the Veteran’s education, employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran’s age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). From June 1, 2011 to September 9, 2011, the Veteran had a combined 60 percent rating for the following service-connected disabilities, to wit: posttraumatic stress disorder (PTSD), rated at 30 percent; left shoulder disability, rated at 30 percent; tinnitus, rated at 10 percent; and noncompensable (0 percent) ratings for residuals of a left ankle sprain and a scar. As such, the Veteran does not meet the schedular requirements for assignment of a TDIU set forth in 38 C.F.R. § 4.16(a) at any point during the closed period on appeal. However, a TDIU evaluation can still be awarded if it is established by the evidence of record that service-connected disabilities rendered the Veteran unable to secure and follow substantially gainful employment. The Board does not so find. The two disabilities resulting in the greatest functional impact are the Veteran’s left shoulder and PTSD disabilities. Turning to the functional impact of each, the January 2020 examiner stated that the Veteran would be “intolerant of excessive activity of [left] shoulder; intolerant of heavy lifting and prolonged carrying of objects; intolerant of raising [left] arm overhead.” As for the Veteran’s PTSD, the June 2011 rating decision that awarded a 30 percent rating found symptoms of “depressed mood, disturbed sleep, irritability, numbing of feelings, and failure to concentrate on the work he is doing.” Notably, there is no limitation on the Veteran’s ability to sit, stand, walk, manipulate objects with his hands, interact with others, or follow directions. Given this, the Board does not find that the Veteran would be precluded from performing low-skill work such as a cashier. His work and educational history would not preclude this type of work. Therefore, he is not unemployable for the period from June 1, 2011 to September 9, 2011; his service-connected disabilities have not rendered him unable to secure or follow substantially gainful employment. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (in a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator); see also Gilbert, supra. Therefore, the Veteran is entitled to a TDIU for this period is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.