Citation Nr: 21004830 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 07-26 679 DATE: January 28, 2021 ORDER An initial rating higher than 10 percent for degenerative joint disease of the right shoulder (hereinafter right shoulder disability) is denied. A higher rating of 20 percent from December 7, 2009 to May 18, 2011, and a higher rating of 30 percent from May 18, 2011, for right shoulder disability is granted. REMANDED Total disability rating based on individual unemployability (TDIU) prior to June 7, 2017 is remanded. FINDINGS OF FACT 1. Prior to December 7, 2009, the Veteran’s right shoulder disability was manifested by pain on movement. 2. From December 7, 2009 to May 18, 2011, the Veteran’s right shoulder disability was manifested by limitation of movement at shoulder level of the major extremity. 3. From May 18, 2011, the Veteran’s right shoulder disability is manifested by limitation of movement midway between side and shoulder level of the major extremity. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201-5003. 2. From December 7, 2009 to May 18, 2011, the criteria for a rating of 20 percent for right shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 3. From May 18, 2011, the criteria for a rating of 30 percent for right shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from December 1966 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2011 and June 2018, the Board remanded this matter for further development. In October 2010, the Veteran testified in support of this appeal during a hearing held at the Seattle, Washington RO before the undersigned Veterans Law Judge.   Right Shoulder Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. The Veteran’s right shoulder disability was assigned an initial rating of 10 percent under diagnostic code (DC) 5201-5003. In a November 2015 rating decision, it was increased to 30 percent disabling effective May 18, 2011, and then decreased to 20 percent disabling effective November 4, 2015. For the following reasons, the Board finds that a higher initial rating and a rating higher than 30 percent is not warranted. The Board does find that a higher rating of 20 percent is warranted from December 7, 2009 and a higher rating of 30 percent is warranted from May 18, 2011. The Veteran’s right shoulder disability has been compensated under DC 5003 and DC 5201. DC 5003 corresponds to degenerative arthritis. Degenerative arthritis is rated based upon limitation of motion of the specific joint or joints. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. Under DC 5201, a 20 percent rating is assigned when motion is limited at shoulder level of the major extremity (i.e. 90 degrees). A 30 percent rating is assigned when motion is limited to midway between the side and shoulder level of the major extremity (i.e. 45 degrees). A 40 percent rating is assigned when motion is limited to 25 degrees from side of the major extremity. 38 C.F.R. § 4.71a, DC 5201. The Veteran has undergone multiple VA examinations throughout the appeal period. His first examination was in October 2006. At this examination he exhibited forward flexion and abduction to 180 degrees. His right shoulder was noted to not be additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The examiner noted that X-rays showed degenerative arthritic changes in the right shoulder. The Veteran’s next examination was in February 2010. At this examination he exhibited flexion to 140 degrees and abduction to 120 degrees. The Veteran experienced pain at 140 degrees of flexion and 120 degrees of abduction. After his first remand, the Veteran was afforded another VA examination in May 2011. At this examination he exhibited abduction to 58 degrees with pain starting at 45 degrees. Flexion was to 95 degrees and pain started at 55 degrees. In November 2015, the Veteran underwent a VA examination. At this examination he exhibited flexion to 180 degrees and abduction to 90 degrees. The Veteran endorsed flare-ups and they were described as limiting his ability to lift his arm above his head. The examiner though was unable to state if pain, weakness, fatigability, or incoordination significantly limit the Veteran’s functional ability with flare-up without resorting to speculation. As rationale for this the examiner stated that it would be speculative to opine. Flare-ups were not described in terms of range of motion. As the examiner did not attempt to elicit information regarding flare-ups in terms of range of motion from the Veteran during the examination, the Board finds it inadequate for rating purposes. The Veteran again had an examination in October 2016. The Veteran reported flare-ups and described them as having a hard time using his right arm during a flare-up and that the pain limits his ability to lifting and carrying heavy things. The Veteran exhibited flexion and abduction to 90 degrees. The examiner did not provide an estimation of range of motion during a flare-up because the Veteran was not examined during a flare-up. As the examiner again did not attempt to elicit information regarding flare-ups in terms of range of motion from the Veteran during the examination, the Board finds the examination inadequate for rating purposes. The Veteran underwent another examination in August 2017 and February 2018. These examinations though were not in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) as the examinations did not include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing of the opposite undamaged joint. As such, the Board will not rely on these examinations for rating purposes. After the second remand, the Veteran underwent a VA examination in March 2019. At this examination the Veteran exhibited forward flexion to 70 degrees and abduction to 85 degrees. The Veteran reported that he gets acute pain when he reaches up and that he cannot reach with his right arm. The examiner noted that the examination was consistent with the Veteran’s statements describing functional loss during a flare-up, but was unable to describe a flare-up in terms of range of motion. The examiner explained their inability to describe in terms of range of motion due to the Veteran’s report of flare-ups and range of motion being variable with at its worse he is unable to move his right arm but there are times where the range of motion loss is minimal. The claims file also includes VA treatment records that have range of motion measurements of the Veteran’s right shoulder. At a February 2004 orthopedic consult, the Veteran was documented to exhibit forward elevation to 180 degrees. The Veteran underwent physical therapy for his shoulder in August 2007. At his first appointment, the Veteran exhibited 180 degrees of flexion and 160 degrees of abduction. At his second appointment the Veteran again exhibited 180 degrees of flexion and his abduction improved to 180 degrees. An October 2009 primary care progress note states the Veteran exhibited full range of motion except for abduction to 145-160 degrees. The Veteran underwent an orthopedics consult in November 2009 where he exhibited flexion to 160 degrees and abduction was about 115 degrees. In December 2009 the Veteran again underwent physical therapy for his right shoulder and his flexion was about 160 degrees with pain and abduction was about 90 degrees with pain. The Veteran underwent more physical therapy in 2016. A March 2016 primary care progress note documents the Veteran being limited to lifting his arm above 45 degrees without experiencing pain. In July 2016, he exhibited forward flexion of 40 degrees and abduction to 45 degrees. The Veteran has also submitted private examinations from chiropractors. At an April 2017 examination, the Veteran exhibited flexion to 160 degrees and abduction to 35 degrees. He underwent another examination in May 2017 where he exhibited flexion to 150 degrees and abduction to 45 degrees. The Veteran has submitted many statements documenting the extent of his right shoulder disability. In a March 2007 letter, the Veteran stated that the previous day he was unable to raise his arm above his head. In a March 2016 letter, the Veteran stated that at a recent doctor appointment he was unable to lift his arm above his head without the physician moving his arm. In an April 2018 statement the Veteran again states that he has pain at 45 degrees. Based on the foregoing, the Board finds that the evidence supports awarding a higher rating of 20 percent effective December 7, 2009. At a physical therapy appointment, the Veteran’s right arm abduction was described to be about 90 degrees. Resolving reasonable doubt in the Veteran’s favor, the Board finds this to indicate that his range of motion was limited at shoulder level. The Veteran is right-handed, making his right arm his major extremity. A higher rating of 20 percent cannot be awarded prior to December 7, 2009, as the evidence of record does not indicate that the Veteran’s range of motion was limited to shoulder level prior to that date. The Board does note that the Veteran did exhibit abduction to 120 degrees at a February 2010 VA examination. However, the Board finds such improvement two months after exhibiting 90 degrees of abduction to be an anomaly. Furthermore, at the examination the Veteran described his range of motion during a flare-up as limiting reaching overhead. This supports that the Veteran’s range of motion was still limited to shoulder level at the February 2010 examination. As December 7, 2009, is the earliest date where it is factually ascertainable that the Veteran’s right shoulder disability increased in severity, a 20 percent rating is warranted effective that date. The Board does find that a rating of 30 percent is warranted from May 8, 2011. At this VA examination the Veteran exhibited abduction with pain at 45 degrees warranting a 30 percent rating. There is no evidence earlier than this date indicating that the Veteran’s right shoulder disability has increased in severity. As stated above, at the February 2010 VA examination the Veteran described that during a flare-up he was limited in reaching overhead. At his October 2010 hearing, the Veteran did describe he was limited in raising his right arm, but his testimony is unclear as to what extent his arm is limited. As such, the Board finds the May 2011 VA examination to be the earliest date that it is factually ascertainable that the Veteran’s right shoulder disability increased in severity of range of motion limited to midway between side and shoulder. Though VA examinations did show improved range of motion of the Veteran’s right arm, as stated above the Board has found these examinations inadequate for rating purposes. The March 2019 VA examination does not have range of motion measurements that would support a 30 percent rating. However, considering the Veteran’s description of his disability during a flare-up, the Board finds that the evidence is in equipoise as to whether he was still experiencing limited motion midway between the side and shoulder. Furthermore, private chiropractor examinations from April and May 2017 both support that the Veteran was still experiencing limited motion midway between the side and shoulder. A rating higher than 30 percent cannot be awarded. At no point has the Veteran exhibited limited range of motion to 25 degrees from the side. Without this evidence a rating higher than 30 percent cannot be awarded. The Board cannot award a higher initial rating. Prior to the effective date for a 20 percent rating, the Veteran did not exhibit limited range of motion that was compensable under the rating criteria for limited motion of the arm. Without evidence that the Veteran’s right arm was limited to shoulder level, the Board cannot award a 20 percent rating prior to December 7, 2009. Accordingly, the Board finds that an initial rating higher than 10 percent is denied. The Board also finds that a higher rating of 20 percent is granted effective December 7, 2009, and that a higher rating of 30 percent is warranted from May 18, 2011. REASONS FOR REMAND TDIU In an August 2020 rating decision, the Veteran was granted a TDIU effective June 7, 2017, the earliest date he met the schedular criteria for a TDIU. As the Veteran has been contending that his right shoulder disability interferes with his ability to obtain and maintain substantial gainful employment, the Board has jurisdiction to decide whether a TDIU is warranted prior to the date granted by the RO. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Prior to June 7, 2017, the Veteran’s service-connected disabilities included degenerative join disease of the right shoulder, tinnitus, right wrist strain, and muscle strain in the right upper extremity. The Veteran’s highest combined rating was 50 percent. Accordingly, the Veteran does not meet the schedular criteria prior to June 7, 2017. Notwithstanding the above listed schedular criteria, a Veteran may be awarded a TDIU on an extraschedular basis if he is nonetheless unemployable on account of his service-connected disabilities. Such a TDIU claim may be submitted to the Direct of Compensation Services. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Additionally, the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU. Therefore, the Board may not adjudicate the issue of the Veteran’s entitlement to an extraschedular TDIU in the first instance. In this matter, the Veteran has been self-employed since 1982 working sporadically throughout the appeal period. The Veteran submitted a July 2007 letter from a private physician who states that the Veteran’s right shoulder and wrist disabilities prevent him from performing repetitive motions and lifting heavy objects. In a November 2009 VA examination, the examiner noted that the Veteran’s right wrist disability makes his job as a product designer more difficult because of the pain. A December 2009 VA treatment record notes that the Veteran’s limited range of motion affects his ability to work around the house and on his equipment. This is supported by the Veteran’s testimony at his October 2010 hearing where the Veteran testified that his right shoulder disability puts him in danger when working on machinery for his business. In a May 2014 Counseling Record Narrative, the Veteran reported that his wrist and shoulder disabilities limit his ability to engage in activities that require prolonged above shoulder work and he gets pain when typing for three hours. In a November 2015 VA examination report, the examiner noted that the Veteran’s shoulder disability impacts his ability to perform any type of occupational task. Considering the Veteran’s employment history is limited to jobs working with machinery and the Veteran’s limitation in typing for long periods of time, the Board finds that there is evidence sufficient to refer the claim for entitlement to a TDIU on an extraschedular basis to the Director of the Compensation Service. (Continued on the next page)   The matter is REMANDED for the following action: Refer the Veteran’s claim for TDIU, prior to June 7, 2017, to VA’s Director of Compensation Service for extraschedular consideration. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.