Citation Nr: 21063524
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 07-09 892A
DATE: October 14, 2021

ORDER

Entitlement to a rating in excess of 10 percent for scar, left shoulder is denied.

Entitlement to a rating in excess of 30 percent for acromioclavicular separation with healed fracture, left clavicle (left shoulder disability), to include on an extra-schedular basis is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis is denied.

FINDINGS OF FACT

1.   The preponderance of the evidence is against finding that the Veteran has three or four painful and unstable scars.

2.   The Veteran's left shoulder disability is rated as 30 percent disabling, which is the maximum schedular rating permitted for limitation of motion of the arm of the minor extremity.  The Veteran's symptoms of painful motion and limitation of motion are not exceptional and are contemplated by the Veteran's current rating.

3.   For the period on appeal, the Veteran did not meet the schedular criteria for TDIU, and the preponderance of the evidence is against finding that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment so as to warrant referral for extraschedular consideration.

CONCLUSIONS OF LAW

1.   The criteria for a rating in excess of 10 percent for scar, left shoulder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804.

2.   The criteria for a rating in excess of 30 percent for left shoulder disability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5203-5201.

3.   The criteria for an extraschedular TDIU have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1978 to May 1982.  

In November 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.

In January 2011 and February 2021, the Board remanded all of the issues on the title page for further development

In April 2012, August 2013, March 2014, and February 2019, the Board remanded entitlement to a rating in excess of 30 percent for left shoulder disability and TDIU for further development.

Increased Rating

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

VA regulations prohibit the separate evaluations for the same disability manifestations, what is commonly called pyramiding.  See 38 C.F.R. § 4.14 (2016) (noting that, while various manifestations of a single disability may be assigned separate ratings, VA regulations preclude the evaluation of the same disability manifestations under different diagnoses, a process called pyramiding).

1.   Entitlement to a rating in excess of 10 percent for scars, left shoulder

The Veteran is currently service connected for left shoulder scar rated under 38 C.F.R. § 4.118, DC 7804.  

VA published a final rule amending its regulations on skin disabilities, effective August 13, 2018.  The amendment, in pertinent part, added a General Rating Formula for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended DCs 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829.  See 83 Fed. Reg. 32,592  (July 13, 2018).  Claims pending prior to the effective date are to be considered under both old and new rating criteria, and whichever criteria are more favorable to the Veteran will be applied.   

However, DC 7804 was not changed by the August 13, 2018, amendments.  Under DC 7804, three or four scars that are unstable or painful warrants a 20 percent rating, and five or more scars that are unstable or painful warrants a 30 percent rating.  38 C.F.R. § 4.118.  Note 1 to DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id.

Diagnostic Code 7800 (which was unchanged by the 2018 amendments), contemplates scars of the head, face, or neck.  38 C.F.R. § 4.118, DC 7800.

The pre-amended DC 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear.  38 C.F.R. § 4.118, Diagnostic Code 7801 (2017).  In contrast, the amended DC 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7801 (August 13, 2018).  Both the old and new criteria provide that a 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters).  

Prior to August 13, 2018, DC 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear.  38 C.F.R. § 4.118, Diagnostic 7802 (2017).  The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, DC 7802 (August 13, 2018).  Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater.

Under the old rating criteria, DC 7805 provided that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate DC.  38 C.F.R. § 4.118, DC 7805 (2017).  The Board notes that this diagnostic code is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under DCs 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, DC 7805 (August 13, 2018).

Analysis

The Veteran contends that his scar is more severe than the rating depicts.

In September 2004, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  The examiner noted a semicircular scar located on the Veteran's dorsal aspect of the AC joint on the left.  The scar measured 6 cm x 1.5 cm.  The scar was slightly elevated with the formation of an early keloid.  There was a bony callus that measures 45 cm in diameter at the site of the AC Joint.  The Veteran's skin was of normal texture.  There was no adherence to underlying tissue, atrophy, ulceration or breakdown of the skin, or underlying soft tissue damage.  Additionally, there was no inflammation, edema, discoloration of scar compared to normal skin induration or inflexibility of skin near the scar, or limitation of motion due to scar or disfigurement. 

In January and June 2006, the Veteran was afforded VA examinations to determine the severity of his left shoulder disability.  The examiners noted a semicircular scar that measured 12 cm in length.  The January examiner noted that it was well-healed, freely moveable, and like surrounding tissue.  In June, the examiner noted that it was well-healed, non-erythematous, nontender to palpation, and not adherent.  

In February 2010, the Veteran was afforded a VA examination to determine whether his service-connected disabilities prevented him from obtaining and sustaining employment.  The examiner noted a circular scar over the anterior aspect of the shoulder that measured 11 cm in length.  The scar was approximately 5 mm in width and was slightly lighter than surrounding tissue.  It was soft and freely movable.  The scar itself was not tender but pressure on the joint in both the anterior and posterior aspect resulted in moderate to severe tenderness.

In April 2012 and September 2013, the Veteran was afforded VA examinations to determine the severity of his left shoulder disability.  The examiners noted a surgical scar; however, the scar was not painful and/or unstable or had a total area greater than 39 square cm (6 square inches).

In April 2021, the Veteran was afforded a VA examination to determine the severity of his scar.  The examiner confirmed the Veteran's scar, left shoulder, status post (s/p) left shoulder surgery diagnosis.  The Veteran had a scar on the trunk or extremities (regions other than the head, face, or neck).  The examiner noted a well-healed, C-shaped surgical scar at the anterior compartment of the left shoulder.  The surface contour of the scar was marked by keloid healing.  He did not have any scars or disfigurement of the head, face, or neck.  The scar was not painful, and it was not unstable, with frequent loss of covering of skin over the scar.  It was not due to burns.  The scar measured 11 cm x 1 cm.  The right and left lower extremity were not affected.  Additionally, the anterior and posterior trunks were not affected.  The examiner stated that the scar on the left lower extremity was without underlying tissue damage.  It was approximately 12 cm squared in total.  The scar did not result in limitation of function (to include limitation of motion).  There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms (such as muscle or nerve damage) associated with the scar.  The Veteran's scar did not impact his ability to work.  

Based on the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's scar.  As noted above, under DC 7800, a 20 percent rating is warranted for three or four unstable or painful scars.  In this case, the examiners noted one scar on the Veteran's left shoulder.  The scar was not unstable with frequent loss of covering the skin of the scar, and it was not both painful and unstable nor due to burns.  As such, a higher rating is not warranted under DC 7804.  

The Board has also considered whether the Veteran's scar warrants a higher rating under DCs 7800, 7801, 7802, 7805, or 7806.  However, the Veteran's left shoulder scar is not of the head, face, or neck.  Therefore, DC 7800 is inapplicable.  Under both the old and new regulations, the Veteran's scar is not shown to cover sufficient area to warrant a higher rating under DC 7801 or 7802.  Finally, as the evidence of record shows there are no other disabling effect not considered in a rating provided under DCs 7800-04 as contemplated under both pre- and post-August 13, 2018, a higher rating under DC 7805 is not warranted.      

The Board has considered the Veteran's statements regarding the severity of his scar.  However, as a lay person, he does not have the training or expertise to render a competent opinion which is more probative than the VA examiners' findings, as this is a medical determination that is complex.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)).  Thus, the lay opinions are outweighed by the VA examiners' opinions.  See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

For these reasons, the Board concludes that a rating in excess of 10 percent is not warranted for the Veteran's left shoulder scar.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2.   Entitlement to a rating in excess of 30 percent for left shoulder disability, to include on an extra-schedular basis

The Veteran's left shoulder disability is rated under 38 C.F.R. § 4.71a, DCs 5203-5201.  Hyphenated codes are used when a rating for a particular disability under one DC is based upon rating of the residuals of that disability under another DC.  38 C.F.R. § 4.27.

The Board notes that a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes.  38 C.F.R. § 4.69.

The Veteran is right-handed.  Hence, his left shoulder disability affects his minor arm.  

During the period on appeal, the criteria for shoulder disabilities have changed, effective February 7, 2021.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs, 5201, 5202).  If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  38 U.S.C. § 5110(g).  If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change.  If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change.  38 U.S.C. § 5110.  Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021.  The criteria that is more favorable to the Veteran will be applied.

Diagnostic Code 5200 did not change under the new regulation and provides unfavorable ankylosis of scapulohumeral articulation, with abduction limited to 25 degrees from side, warrants a 40 percent evaluation for the minor joint.

Under the old and new regulations, DC 5201 provides a maximum of 30 percent for the minor joint for limitation of motion of the arm to 25 degrees from side.

Normal shoulder motion is flexion and abduction to 180 degrees and external and internal rotation to 90 degrees.  38 C.F.R. § 4.71a, Plate I.

Under the old and new regulations, DC 5202 provides a 40 percent for fibrous union of the humerus, a 50 percent evaluation for nonunion of the humerus (false flail joint), and a 70 percent for loss of head of humerus (flail shoulder).

Diagnostic Code DC 5203 did not change under the new regulation and provides a maximum of 20 percent evaluation for impairment of the clavicle or scapula.

VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability.  If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2020).  Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158, 170 (2016).

Analysis 

The Veteran contends that his disability is more severe than the rating depicts.

VA received the Veteran's claim for an increase rating on March 22, 2005.  The appeal period for the Veteran's increased rating claim thus begins on March 22, 2005, the date VA received the claim for increased rating, plus the one-year look-back period if an increase became factually ascertainable within that period.  38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 

By way of history, in a June 2005 rating decision, the regional office (RO) continued the Veteran's 30 percent evaluation for his left shoulder disability; assigned an evaluation of 100 percent, effective June 8, 2005, based on surgical or other treatment necessitating convalescence; and assigned a 30 percent evaluation for this disability, effective November 1, 2005.  In a December 2005 statement, the Veteran requested an extension to the temporary 100 percent rating.  On February 23, 2006, the RO denied further entitlement to a temporary 100 percent evaluation.  The Veteran appealed the denial.  In an April 4, 2007 Statement of the Case, the RO confirmed entitlement to a 30 percent rating for the Veteran's left shoulder disability.  On April 20, 2007, the Veteran appealed the decision to the Board.  In a May 2007 rating decision, the RO extended the Veteran's temporary 100 percent evaluation from June 8, 2005 to April 30, 2006.  A 30 percent evaluation was assigned effective May 1, 2006.  The Board notes that the periods when the Veteran's disability was rated at 100 percent disabling are no longer on appeal as a 100 percent rating is the highest rating possible.  However, the remaining periods, i.e., March 22, 2004 to June 7, 2005, May 1, 2006 to January 25, 2011 and from May 1, 2011, remain on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  

On June 1, 2004, the Veteran was seen at the VA Westside, Chicago VA Medical Center complaining of left shoulder pain.  The examiner diagnosed the Veteran with frozen shoulder.  The Veteran rated the pain at 10/10.  He denied focal weakness but did not move his shoulder 2/2 worsening pain with movement.  On June 9, the Veteran was seen at the ER for a follow up of his shoulder pain.  Abduction was to about 30 to 40 degrees.  The examiner also noted decreased flexion and extension.  Pain was noted on end of ROM.

In September 2004, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  The Veteran stated that his condition began during military service.  He had progressive deformity of the bone resulting in discomfort, and in July 2003, he underwent surgery and the distal portion of his clavicle was removed.  He experienced transient improvement for about six months but thereafter, the symptoms reoccurred.  The Veteran took amitriptyline, Tylenol with hydrocodone, naproxen, and codeine.  The Veteran reported continuous pain which he rated at 10/10.  He stated that after vigorous ROM and PT, his shoulder swells.  He reported had prominent bony knots over the dorsal aspect of his shoulder that was mildly tender.  The pain became worse with essentially any movement of the shoulder but elevation to 75 degrees or greater limited his movements by severe pain.  The Veteran continued to work as a cook; however, he was performing limited duty in food preparation, a job that does not require lifting.  The Veteran was able to lift five pounds, but any lifting resulted in increase in pain.  He had difficulty dressing and needed help in order to put on his shirt and coat.  For most of the activities, he tended to compensate by using his right hand as on driving his car.   

The examiner diagnosed the Veteran with post-surgery acromioclavicular, left shoulder.  The Veteran is right hand dominant.  He was able to abduct his shoulder from zero to 60 degrees with evidence of pain at 60 degrees.  Flexion was from zero to 45 degrees with evidence of pain at 45 degrees.  Extension was to 15 degrees with evidence of pain at 15 degrees.  The Veteran had essentially no adduction or internal or external rotation.  Ranges of motion during passive, active, and repetitive movements were the same.  There was no limitation due to weakness, fatigability, incoordination, or flare-ups.  The Veteran did not experience incapacitating episodes, and he did not use an assistive device.  The Veteran's disability did not have an effect on his usual occupation or daily activities.

In January 2005, the Veteran was seen at the VA Westside Chicago: Ortho Assessment Note.  The Veteran was one-year status post distal clavicle excision left with persistent pain.  He had limited ROM.  The examiner noted that the Veteran was unable to range his shoulder due to pain.  Also, in January 2005, the Veteran complained of numbness from his left shoulder down to his leg and in his hands.

On June 4, 2005, the Veteran was afforded another VA examination to determine the severity of his disability.  The Veteran stated that since his last VA examination, he was scheduled for a surgery.  He stated that he initially did well for about six months after his distal clavicle resection in 2003, but then, he began having more and more pain and difficulty using the arm.  At the time of the 2005 VA exam, the Veteran reported constant pain in his shoulder.  He reported wearing a figure-of-eight brace all the time and that kept the pain a little bit better.  He reported hooking his thumb in his left front pants pocket, and this took the weight of the shoulder off and made it feel a little bit better.  

The examiner confirmed the Veteran's unstable left clavicle after a previous Mumford procedure diagnosis.  Because of the Veteran's figure-of-eight brace, the examiner was unable to perform ROM testing.  The Veteran reported losing strength in his hands.  There were no limitations due to fatigability, incoordination, and repetitive motions.  He had no flare-ups or frank incapacitating episodes.  The examiner noted that the clavicle was somewhat mobile, and the distal portion was proximal and posteriorly migrated.  The examiner felt the end of the clavicle through the Veteran's skin.  The Veteran was very tender to palpation around the clavicle and to any motion of the clavicle.  He was tender to palpation around the trapezius.  He had no obvious atrophy of his muscles of his left upper extremity.  He had good grip strength and some mild swelling of the hand.  The Veteran had good hand dexterity.  

On June 4, 2006, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  The examiner confirmed the Veteran's limited ROM of the left shoulder secondary to previous Weaver-Dunn procedure and distal clavicle resection diagnosis.  The Veteran is right-hand dominant.  The Veteran's ROM was somewhat limited and difficult to interpret.  There was much resistance with passive ROM.  On evaluation, he had a mildly prominent distal clavicle.  He had some tenderness to palpation at the previous acromioclavicular joint.  On evaluation, he had active forward flexion and abduction to 50 degrees further limited by pain and functional impairment at 50 degrees.  The examiner was unable to assess the Veteran's passive ROM secondary to his resistance.  He described pain on both active and passive ROM at 50 degrees of forward flexion and abduction with functional impairment secondary to his discomfort.  Internal and external rotation were to 60 degrees and abduction to 30 degrees without functional impairment.  He had no evidence of significant muscle atrophy.  The Veteran's ROM during repetitive motions were the same.  There was no additional functional impairment due to pain, weakness, fatigability, incoordination, or flare-ups.  The Veteran did not use an assistive device.  There were no incapacitating episodes or radiation of pain and no neurologic findings or effect on the usual occupation or daily activities.  X-ray examination of the left shoulder revealed evidence of a previous distal clavicle resection with a mildly high-riding distal clavicle residual.  On the day of the exam, the Veteran's left shoulder was extremely limited.  The Veteran was unemployed.  The examiner stated that the Veteran would be able to work a sedentary-type job.

On June 5, 2006, the Veteran was seen at the VA Westside, Chicago: Pain Clinic for his left shoulder pain.  The examiner diagnosed the Veteran with chronic left shoulder pain.  The examiner noted left shoulder diffused tenderness at the incision/scarred site.  Due to pain, the Veteran was unable to abduct greater than 20 degrees.  The Veteran's grip strength on the left was weaker compared to his right side.  There were no signs of edema or infection on the skin of the shoulder.  In September 2006, an examiner noted that due to severe pain, the Veteran was unable to actively or passive abduct past 45 degrees.  Also, in September 2006, the Veteran stated that he had twice been removed from PT because he had been told he was not progressing.  

In April 2009, the Veteran was seen for his left shoulder pain.  The examiner confirmed the Veteran's left shoulder dislocation injury s/p surgical repair and severe left shoulder pain diagnoses.  The Veteran's left shoulder ROM was severely limited.  Flexion was to three degrees, extension to negative five degrees, abduction to four degrees, and he had minimal internal and external rotation.  The examiner stated that the Veteran was severely restricted in all activities that required use of the left upper extremity.  Further, the Veteran would have extreme difficulty in performing any function requiring lifting, pulling overhead activities, typing, or any type of manual labor.  In September 2009, the Veteran reported consistent pain in his left shoulder.  Due to severe pain, he was unable to actively abduct or flex his arm past 45 degrees and passive ROM in forward flexion and abduction to about 80 degrees.  At the time of the evaluation, his limitations on the left shoulder were lifting greater than seven pounds and any activity that demanded motion beyond 45 degrees of abduction or forward flexion.  

In February 2010, the Veteran was afforded a VA examination to determine whether his service-connected disabilities prevented him from obtaining and sustaining employment.  At the time of the exam, the Veteran reported continuous daily left shoulder pain averaging 10 upon awakening.  He took Vicodin which converted the pain throughout the day to a 4/10.  

The examiner confirmed the Veteran chronic separation of left acromioclavicular joint s/p clavicular resection without improvement in symptoms diagnosis.  He had marked limitation of movement and any activity involving the left shoulder.  The Veteran could not elevate his shoulder above approximately a 30-degree angle in any plane.  He had occasional swelling in the hands, but the shoulder problem had not affected his grip strength.  He was unable to do any lifting, pushing, or pulling, and essentially, he had no functionality in terms of activity using the left shoulder.  He compensated by using his right upper extremity for all activities.  The Veteran was able to flex his shoulder from zero to 25 degrees with functional limitation due to pain at 25 degrees.  He could abduct from zero to 30 degrees with functional limitation due to pain at 30 degrees, and he could extend from zero to five degrees with functional limitation due to pain at five degrees.  He was able to adduct no more than five to 10 degrees with pain causing functional limitation.  Internal and external rotation was normal without painful limitation.  Active and passive ROM was unaffected by repetition.  The examiner noted no further functional limitation due to fatigue, incoordination, or flare-ups.  The examiner stated that at the time of the exam and due to pain and lack of ROM, the Veteran essentially had no functional ability regarding his left upper extremity.  The examiner further stated that the September 2009 x-ray showed no fractures, dislocations, or osteolytic lesions.  There was separation of the left AC joint.  When compared to a previous exam, there was no significant interval change.  There is no loss of joint function with use due to pain, weakness, fatigability, incoordination, or flare-ups.  The Veteran did not use an assistive device.  There were no incapacitating episodes or radiation of pain and no neurologic findings or effect on the usual occupation or daily activities.  The examiner noted no neoplasms, subluxation, instability, bladder, or bowel complaints.  

In December 2010, the Veteran was seen at the VA Westside, Chicago: Orthopedic Surgery Clinic.  The examiner noted that the Veteran had Weaver Dunn in 2005 with persistent decreased ROM.  Left shoulder flexion and abduction was to five degrees and internal and external rotation were to zero degrees.  The Veteran refused to allow movement of his shoulder secondary to reported pain.  In February 2011, an examiner noted that the Veteran had seasonal affective disorder (SAD) with persistent decreased ROM and pain that had not improved in the past month.  The Veteran had not had any PT, and his symptoms had been unchanged over the past two years.  Active flexion and abduction were from zero to 80 degrees, external rotation was to 50 degrees, and internal rotation was to L4.   

In January 2011, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  The Veteran's left initial injury was a left clavicle fracture with an AC separation during the military.  Since then, the Veteran has undergone three surgeries to the left shoulder.  His last of which was a Weaver-Dunn procedure in 2005.  However, he has had residual AC separation, continued pain, and has developed a left frozen shoulder.  In December 2010, x-rays revealed evidence of a residual distal clavicle resection with persistent AC separation.  The Veteran had limited ROM of the left shoulder during the examination.  He also had evidence of some pain with shoulder ROM and was scheduled to have surgical intervention in January 2011.  A left shoulder MRI revealed evidence of some lose bodies in the left shoulder with residual postsurgical changes of the AC joint.  

The examiner confirmed the Veteran's left frozen shoulder post left distal clavicle fracture and acromioclavicular separation with a failed Weaver Dunn procedure with persistent acromioclavicular separation and pain diagnosis.  On examination, the left shoulder ROM was somewhat difficult to ascertain secondary to his discomfort during motion.  However, with assistance, he was able to actively abduct and forward flex to about 45 degrees.  He began to have a significant amount of pain at 45 degrees.  The Veteran was able to adduct to 50 degrees with pain at 50 degrees.  Extension was to 40 degrees with pain at 40 degrees.  Internal and external rotation were to 30 degrees with stiffness at 30 degrees.  There was evidence of a residual deformity of the distal clavicle with a high riding appearing left distal clavicle on the left side when compared to the right.  The examiner stated that it was difficult to ascertain any impingement type symptoms and/or the integrity of the rotator cuff given the Veteran's limited ROM; however, during certain parts of the examination, the Veteran's pain response appeared to be somewhat exaggerated and out of proportion to the rest of the examination.  His ROM during repetitive motion was somewhat difficult given his arthrofibrosis of the left shoulder as well as his fatigability.  

In an addendum opinion, the examiner stated that the Veteran's limitation of motion, the lateral was attributable to a frozen shoulder as a sequelae of the previous injury post-surgical changes.  These have failed to respond to physical therapy.  

In March 2011, the Veteran was seen at the VA Westside, Chicago VA Medical Center for his left shoulder pain.  The Veteran stated that, due to pain, he was unable to raise his left arm.  Right shoulder flexion was to 90 degrees, abduction to 110 degrees, and external and internal rotation were between 20 to 30 degrees.  Left shoulder flexion was to 30 degrees, abduction to 35 degrees, and external and internal rotation were between 20 to 30 degrees.  

In June 2011, the Veteran submitted a statement from his attending psychiatrist.  The examiner noted that the Veteran was rated at 40 percent for his left shoulder disability.  The examiner stated that the Veteran's left shoulder disability finally became so severe that he was terminated from his job at the end of 2005.  The Veteran's bouts of depression/hypomania had been prominent since that exacerbation of his left shoulder disability.  The factor which had contributed most to the frequency and the severity of his major depressive episodes had been the service-connected left shoulder injury.  The examiner recommended an increase in the Veteran's service-connected disability because of the effects his left shoulder injury has had on the depressive/hypomanic episodes he has experienced.

On April 2, 2012, the Veteran was seen for a reevaluation of his left shoulder at the Orthopedic Surgery Clinic: Medication Reconciliation.  The examiner noted that in January 2011, the Veteran underwent surgery for a presumptive diagnosis of refractory frozen shoulder.  After surgery, the Veteran was unable to work with therapy due to severe and sometimes exaggerated pain.  He was last seen in ortho clinic in July 2011 with a shoulder that was again thought to be frozen (at least functionally), but he could not tolerate an exam at that time.  He had pain in the shoulder radiating to the neck and eye, so, a neurology consult was obtained.  An MRI was ordered, and the result was negative; however, the Veteran did not return for the follow up.  Due to the exaggerated nature of his complaints, the Veteran was also seen at rheumatology, but rheumatology could find no rheumatologic reason for his symptoms.  He noted that in December 2011, he began having pain radiating into the left forearm and hand and numbness and tingling (N/T) in the fingers.  He stated that the radiation to the eye stopped at that time.  He denied new injury to the shoulder.  He stated that when he takes 2-3 Vicodin, he can get his shoulder up near horizontal.  He otherwise did not use his arm much at all.  The Veteran was not on NSAIDs, presumably due to an ibuprofen allergy, and he had not had PT due to inability to participate.  Notably, his last EMG was in 2010 and was limited but not diagnostic of any upper extremity nerve problem.  The examiner noted severe pain to any palpation of the left shoulder.  The Veteran had no periscapular atrophy or deltoid atrophy.  The examiner stated that the Veteran was unable to tolerate any PT, and, during his April 2, 2012 time in the clinic, he was unable to range the shoulder.  The Veteran stated that his shoulder had been that way for well over a year (before the last surgery).  The Veteran did not demonstrate any atrophy of the shoulder girdle, and the examiner stated that the Veteran's exam response seemed exaggerated.  The examiner stated that a full assessment of the Veteran's shoulder function was not possible due to discomfort.  However, regarding the Veteran's active and passive ROM, flexion and abduction were to 20 degrees, external rotation was to 10 degrees and internal rotation was to his back pocket.  Regarding passive ROM, the Veteran was unable to move any further due to severe pain before mechanical endpoint was reached.

In April 24, 2012, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  The examiner diagnosed the Veteran with left s/p frozen shoulder.  The Veteran is right hand dominant.  The Veteran reported flare ups to include reduce motion.  Right shoulder flexion was from zero to 160 degrees with no objective evidence of painful motion.  Abduction was from zero to 145 degrees with no objective evidence of painful motion.  Left shoulder flexion was to zero degrees with objective evidence of painful motion beginning at zero degrees.  Left shoulder abduction was to zero degrees with no objective evidence of painful motion.  The Veteran was able to perform repetitive-use testing with 3 repetitions.  After three repetitions, right shoulder flexion and abduction were from zero to 145 degrees.  The Veteran had functional loss and/or impairment of the shoulder to include no functional loss for right extremity, but less movement than normal and pain on movement for his left shoulder.  The Veteran experienced guarding and localized tenderness or pain on palpation of joints/soft tissue/biceps of either shoulder.  Muscle strength testing was normal in the right shoulder, but there was no muscle movement in the left shoulder.  The Veteran did not experience ankylosis of the glenohumeral articulation.  He was unable to perform Hawkins' Impingement, Empty-can, External Rotation/Infraspinatus Strength, or Lift-off Subscapularis tests.  There was no history of mechanical symptoms (clicking, catching, etc.) or history of recurrent dislocation (subluxation) of the Glenohumeral (scapulohumeral) joint.  The Veteran was unable to perform Crank apprehension and relocation test.  He had an AC joint condition or other impairment of the clavicle or scapula, to include partial excision clavicle.  The examiner noted tenderness on palpation of the AC joint.  The Veteran was unable to perform Cross-body adduction test.  He did not have a total shoulder joint replacement.  However, in 2011, he had had arthroscopic shoulder debrement for frozen shoulder.  This resulted in reduced motion.  There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's left shoulder condition.  Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran.  Imaging revealed left shoulder arthritis.  

On May 18, 2012, the Veteran was seen at the Mental Health Group Counseling.  The Veteran stated that someone had stolen his car; however, he was able to purchase another one.  He reported, in the past week, he enjoyed driving his car.  He also reported playing with his grandchild.  

On April 10, 2012, the Board noted that the Veteran's vocational rehabilitation file revealed that he served in the Marine Corps as a cook, and his relevant post-service work has also been in food service mainly as a cook.  The Veteran indicated that he had no college or vocational training.  In October 2006, a medical consultant stated that the Veteran was unable to use his left arm for activities to include lifting, carrying, pushing, pulling, reaching, and handling.  The Board concluded that there was evidence indicating that the Veteran might be unemployable due to his left shoulder disability.  Based on this information, the Board remanded the claim and instructed the RO to refer the issue to the VA Director of the Compensation Service (Director) for extraschedular consideration.

In a November 2012 opinion, the Decision Review Officer (DRO) determined that the Veteran was not entitled to an extraschedular rating for his left shoulder disability.  

In August 2013, the Board noted that in the April 2012 remand instructions, the RO was instructed to refer the left shoulder and TDIU issues to the Director for extraschedular consideration under 38 C.F.R. § 416(b).  However, it appeared that, in November 2012, the Appeals Management Center (AMC) prepared a Memorandum in which entitlement to TDIU on an extraschedular basis was denied.  The 2013 Board noted that the November 2012 memo did not satisfy the Board's April 2012 remand instructions.  As such, the Board remanded the claim.

In September 2013, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  The examiner diagnosed the Veteran with left shoulder POA-C separation times three.  The Veteran is right hand dominant.  The Veteran reported that flare-ups, i.e., pain, impacted the function of the shoulder.  The Veteran's right shoulder flexion and abduction were from zero to 170 degrees with no objective evidence of painful motion.  Left shoulder flexion and abduction were from zero to 30 degrees with objective evidence of painful motion beginning at 30 degrees.  The Veteran was able to perform repetitive-use testing with 3 repetitions with no change in ROM.  He did not have additional limitation in ROM of the shoulder and arm following repetitive-use testing.  The Veteran had functional loss and/or functional impairment of the shoulder and arm, to include left shoulder pain on movement and less movement than normal.  The Veteran did not have localized tenderness or pain on palpation of joints/soft tissue/biceps tendon of either shoulder, and he did not experience guarding.  Muscle strength testing was normal.  He did not have ankylosis of the glenohumeral articulation (shoulder joint).  Hawkins' Impingement, Empty-can, External rotation/Infraspinatus strength, and Lift-off subscapularis tests were all negative.  The Veteran did not have a history of mechanical symptoms or a history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint.  Crank apprehension and relocation test was negative.  The Veteran had an AC joint condition or other impairment of the clavicle or scapula, i.e., he had a left shoulder dislocation (acromioclavicular separation or sternoclavicular dislocation).  The examiner noted tenderness on palpation of the AC joint.  Cross-body adduction test was positive.  He had not had total joint replacement; however, he had left shoulder arthroscopic or other shoulder surgery.  He did not have any residual signs and/or symptoms due to shoulder surgery.  The Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his left shoulder conditions.  Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran.  The Veteran's shoulder condition did not have an impact on his ability to work.  The examiner stated that the Veteran had circumferential non anatomic numbness of the left shoulder, arm, and hand.  There was no additional weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups, or when the joint was used repeatedly over a period of time.  Additionally, there was no weakness, fatigability, incoordination, or additional ROM loss due to "pain on use or during flare-ups."

In January 2014, the Veteran was afforded a VA examination to determine the nature and etiology of his peripheral nerve conditions.  The Veteran injured his left shoulder while he was in the Marines in the 1980s.  He has had chronic pain since then.  He stated, over the past several years, he developed a sharp pain radiating from the mid trapezius area into his left neck and left face.  The pain comes and goes and was aggravated by use of his left arm.  He stated that he was unable to lift his left arm above his head.  He also described numbness in his left hand (involving the 4 fingers and not his thumb) and in his forearm and arm. 

The examiner stated that the Veteran did not have a peripheral nerve condition diagnosis.  Additionally, the Veteran did not have any symptoms attributable to any peripheral nerve condition.  The numbness and symptoms that the Veteran described did not follow a peripheral nerve distribution.  His history and exam were not consistent with a neuropathy or a left brachial plexopathy.  The examiner stated that the Veteran's injury was musculoskeletal and not nerve related.  

In March 2014, the Board noted that in August 2013, the Board found that preparation of the November 2012 Memorandum did not satisfy the April 2012 remand instructions.  The March 2014 Board noted that in both the April 2012 and August 2013 remand instructions, the Board specified that the issues were to be referred to the Director.  However, there was no indication that this was accomplished.  The March 2014 Board determined, in order to comply with the remand instructions, an additional remand was required for the referral to be completed.    

In November 2018, the Director noted that service connection was established for left clavicle separation at 30 percent and left shoulder scar at 10 percent.  However, the Director stated that based on the totality of evidence of record, extra-schedular entitlement to TDIU was not shown due exclusively to migraines or hand scar.  The Director noted that under 38 C.F.R. § 3.321(b)(1), the rating schedule did not provide for economic preclusion which was deemed as lacking in substance.  The Director concluded that a 60 percent evaluation was warranted.

In February 2019, the Board acknowledged that the RO complied with the Board's March 2014 remand order by obtaining an advisory opinion from the Director.  However, the February 2019 Board found that a clarification was warranted.  The Board stated that the advisory opinion provided that TDIU was not warranted based on an extraschedular basis.  However, the language following the extraschedular evaluation for TDIU made it unclear whether an extraschedular rating was granted for the Veteran's left shoulder disability.  The Board remanded the claim for a clarifying opinion.

In the November 2020 clarification opinion, the Director noted that the Veteran is service connected for a left shoulder disability and scar, left shoulder.  The left arm is the non-dominant arm.  The Veteran has a history of chronic left shoulder pain and reported the pain has worsened over time, including pain radiating to the neck.  The Veteran reported that the pain was constant and exacerbated with movement and lifting.  The Veteran's treatment records showed that he was receiving exercise therapy to improve ROM for the left shoulder.  The September 2013 examiner reported the left shoulder flexion and abduction were limited to 30 degrees.  There was painful motion of the left arm and tenderness on palpation of the AC joint.  An April 2012 examiner reported the left shoulder was frozen without ROM, but a February 2010 examiner also reported shoulder movement limited to 30 degrees.  A 2006 examiner reported the internal and external rotation was limited to 60 degrees.  Treatment records from April 2019 noted the Veteran was limited to passive left shoulder abduction of 90 degrees but did not provide full ROM testing.  There is no malunion of clavicle or scapula.  Under DC 5201, a 30 percent evaluation for the non-dominant arm when the ROM is limited to 25 degrees from the side, with a higher 40 evaluation under diagnostic code 5200 for unfavorable ankylosis of the shoulder of the non-dominant arm.  The Director stated that given the history showing the Veteran has continued exercise therapy to improve ROM, and the history of ROM was greater than 25 degrees in most cases, the records do not support an extra-schedular evaluation for the left clavicle acromioclavicular separation with healed fracture.  The Director determined the available medical evidence did not support a higher evaluation on an extra-schedular basis for the Veteran's left shoulder disability.  Thus, entitlement to an extra-schedular rating is denied.

In February 2021, the Board noted that in the November 2018 advisory opinion addressing whether TDIU was warranted on an extra-schedular basis, the Director discussed whether the Veteran was unemployable due to migraines and a hand scar.  The Board noted that the Veteran's service-connected disabilities include left shoulder disability and left shoulder scar.  The Board determined that the RO should refer the TDIU and left shoulder disability claims back to the Director for extra-schedular consideration.

In April 2021, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  In 2003, the Veteran underwent distal clavicle resection; however, he continued to have pain and underwent a Weaver-Dunn procedure with the distal clavicle resection in June 2005.  He underwent four months of rehabilitation; however, the examiner was unable to verify the Veteran's PT notes which were essential in establishing his true ROM.  The Veteran indicated that he continued to have pain in the left shoulder with difficulty with overhead-type activities.  He was seen by his orthopedic surgeon and returned to PT on November 18, 2005.  The Veteran expressed much pain relief post operatively compared to his preoperative pain.  He took Vicodin and Tylenol No 3 for the discomfort.  

The examiner confirmed the Veteran's acromioclavicular separation with healed fracture, left clavicle diagnosis.  The Veteran reported 10/10 level flareups of left shoulder area pain on an average of twice a month.  The pain flareups were typically provoked by attempting to lift and carry loads using his left arm.  The pain flareups cooldown in one to two hours with medication for pain and inflammation and relative rest.  His last PT session was in December 2020.  He was issued a home exercise program.  The Veteran described noncompliance with his home exercise program because it was too painful.  He reported functional loss or functional impairment of his left shoulder, to include chronic left shoulder pain that resulted in limited tolerance for performing tasks that involve lifting and carrying loads using his left arm.  The Veteran's undamaged right shoulder active and passive ROM testing were normal.  His left shoulder ROM testing was abnormal.  The Veteran displayed some ROM limitation in the left shoulder in all planes.  The examiner stated that the finding was consistent with his history of having a diagnosis of service-connected acromioclavicular joint separation with healed fracture, left clavicle.  The abnormal ROM itself contributed to functional loss, i.e., the Veteran was not able to perform activities that involve reaching overhead using his left arm.  Left shoulder active and passive ROM testing revealed flexion and abduction from zero to 75 degrees and internal and external rotation from zero to 50 degrees.  Pain was noted on flexion, abduction, and internal and external rotation.  There was no evidence of pain with weight bearing, no objective evidence of crepitus, and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  Regarding his left shoulder, the Veteran was able to perform repetitive use testing with at least three repetitions.  After three repetitions, the examiner noted no additional functional loss or ROM.  The Veteran was not examined immediately after repeated use over time.  The procured evidence (statements from the Veteran) suggest pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time.  The exam was not conducted during a flare-up.  There were no additional contributing factors of disability.  The Veteran did not have muscle atrophy or ankylosis.  Hawkins' Impingement, Empty Can, and External Rotation/Infraspinatus Strength tests were all positive.  Lift-off Subscapularis test was negative.  The Veteran did not have mechanical symptoms; residuals of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint; or shoulder instability, dislocation or labral pathology.  Cross-body adduction test was positive.  The examiner noted a clavicle, scapula, acromioclavicular (AC) joint, sternoclavicular joint condition or other impairment, i.e., dislocation (acromioclavicular separation or sternoclavicular dislocation).  The clavicle or scapula condition affected ROM of the shoulder.  There was tenderness on palpation of the AC joint.  The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus; malunion of the humerus with moderate or marked deformity; or humerus condition affect range of motion of the shoulder.  In June 2003, the Veteran underwent shoulder surgery, i.e., distal clavicle excision.  Residuals of the shoulder surgery included pain and ROM limitation in the left shoulder.  The Veteran did not have any other pertinent physical findings, complications, signs, or symptoms related to his condition.  The Veteran did not use any assistive devices.  Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran.  Regarding Correia, the examiner stated that there were reports of pain on passive/active ROM testing of the left shoulder joint between zero to 75 degrees of flexion and abduction, between zero to 10 degrees of adduction, and between zero to 50 degrees of internal and external rotation.  The Veteran displayed unrestricted and pain-free ROM in the contralateral right shoulder joint.  He was able to perform repetitive use testing with at least 3 repetitions with no loss of ROM in the shoulder joints.  There was no evidence of pain when the shoulder joints were used in non-weight bearing.  Based on history taken from the Veteran, review of available records, and physical examination on the day of the exam, the examiner had no basis to offer additional losses of function or motion due to repetitive use or during a flareup.  The examiner stated that the Veteran's functional status as relates to his left shoulder disability is essentially unchanged compared to his January 2011 DBQ examination.  The Veteran was seen in the orthopedic surgery clinic on May 21, 2021.  The etiology of the Veteran's subjective reports of burning pain are unknown.  A recent EMG study was grossly normal with no evidence of peripheral neuropathy, brachial plexopathy, or cervical radiculopathy that would explain the subjective reports of burning pain.  The examiner stated that the Veteran's shoulder condition is of moderate severity.

In a June 2021 advisory opinion, the Director denied entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1).  The Director stated that the Veteran is service connected for a left clavicle acromioclavicular separation with healed fracture.  The left arm is the non-dominant arm.  The Veteran had a history of chronic left shoulder pain and reported the pain has worsened over time.  He reported the pain was constant and exacerbated with movement and lifting.  The Veteran's treatment records note that he was receiving exercise therapy to improve ROM for the left shoulder.  A 2006 examiner reported the internal and external rotation were limited to 60 degrees.  An April 2012 examiner reported the left shoulder was frozen without ROM, but a February 2010 exam also reported shoulder movement limited to 30 degrees.  The September 2013 examiner reported that the Veteran's left shoulder flexion and abduction were limited to 30 degrees.  There was painful motion of the left arm and tenderness on palpation of the AC joint.  The Veteran's April 2019 treatment records noted that the Veteran was limited to passive left shoulder abduction of 90 degrees but did not provide full ROM testing.  There was no malunion of clavicle or scapula.  The left shoulder condition was evaluated in April 2021, and this examination continued to report chronic left shoulder pain with pain aggravated by lifting and carrying with the left arm.  There was pain with the ROM for the left arm with flexion and abduction limited to 75 degrees and internal and external rotation limited to 50 degrees.  There was no loss of ROM with repetition of motion or during a flare-up, and no shoulder instability, dislocation, or labral pathology found on examination.  Imaging studies reported degenerative changes proximal humerus and acromioclavicular joint with rotator cuff tendinopathy.  Under DC 5201, a 30 percent evaluation is warranted for the non-dominant arm when the ROM is limited to 25 degrees from the side, with a higher 40 evaluation under DC 5200 for unfavorable ankylosis of the shoulder of the non-dominant arm.  The Director stated that given the history showing the Veteran has ROM for the arm greater than 25 degrees, the records do not support an extra-schedular evaluation for the left clavicle acromioclavicular separation with healed fracture.  The Director determined the available medical evidence does not support a higher evaluation on an extra-schedular basis for left shoulder disability.  Thus, entitlement to an extra-schedular rating is denied.  

Based on the evidence of record, the Board finds that a schedular rating in excess of 30 percent for left shoulder disability is not warranted.  The Board notes that the Veteran is in receipt of the maximum evaluation under DC 5201 for limitation of motion for the nondominant shoulder.

The Board recognizes that, under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the DCs.  "Functional loss" may occur because of pain, weakness, excess fatigability, incoordination and flare-ups, pursuant to 38 C.F.R. §§ 4.40, 4.45 and 4.59 and the Court's holding in DeLuca v. Brown, supra.  In this case, the Veteran experienced impairment of the left shoulder, to include less movement than normal and pain on movement.  However, the Veteran already receives the maximum disability rating available for limited motion in the shoulder absent ankylosis.  Regarding ankylosis, the medical evidence does not suggest that the severity of the Veteran's service-connected left shoulder disability is the functional equivalent of ankylosis.  Ankylosis, by definition, is the complete immobility and consolidation of a joint due to disease, injury or surgical procedure.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  The Board notes, during his April 24, 2012 VA examination, the Veteran's flexion and abduction were to zero degrees.  However, the examiner noted that the Veteran did not have ankylosis.  Additionally, on April 2, 2012, flexion and abduction were to 20 degrees, and the examiner stated that the Veteran's exam response seemed exaggerated.  Also, in May 2012, the Veteran was able to perform activities such as driving his car.  The Board also notes that the Veteran's other VA examinations and subsequent VA treatment records have demonstrated that the Veteran had at least some ROM in his left shoulder.  Therefore, as the medical evidence demonstrates that the Veteran was able to move his left shoulder, by definition, he does not have ankylosis.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable).  As such, he is not entitled to a higher rating under DCs 5200 or 5201.  See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5200, 5203-5201.  

Further, the Board has considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The Board notes that other criteria for rating shoulder disabilities are provided under DC 5202 for other impairment of the humerus to include recurrent dislocation, fibrous union, non-union or flail shoulder and DC 5051 for shoulder replacement (prosthesis).  

The evidence of record does not demonstrate that the left shoulder disability has manifested in fibrous union, nonunion, or loss of head of the humerus nor did the Veteran undergo a total shoulder joint replacement; thus, a rating in excess of 30 percent under DC 5202 or 5051 is not warranted.

Under DC 5003, degenerative arthritis established by x-ray findings is rated based on limitation of motion under the appropriate DCs for the specific joint or joints involved.

The Veteran has a current diagnosis of left shoulder arthritis, as confirmed by x-ray evidence.  However, the Veteran has already received a compensable rating under the appropriate DC.  Assigning a separate rating under DC 5003 would constitute pyramiding, as DC 5201 rates based on limitation of motion, including limitation of motion caused by pain, and this includes arthritic pain.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  

In June 2011, the Veteran's psychiatrist stated that the Veteran's rating should be increased due to his psychiatric condition.  However, the Board notes that the Veteran was denied service connection for his psychiatric condition.  As such, service connection and/or a higher rating is not warranted.  

On multiple occasions, the Board remanded the Veteran's claim for referral to the Director for an extraschedular consideration.  The Director provided multiple advisory opinion and subsequently denied an extraschedular evaluation.  The Board agrees and finds the preponderance of the evidence is against finding an extraschedular rating is warranted, as the Veteran's symptoms are contemplated by the ratings schedule in his current 30 percent rating under DC 5201.  Extraschedular ratings are reserved for exceptional cases.  See 38 C.F.R. § 3.321.

The Board acknowledges the Veteran and his psychiatrist's statements regarding the severity of the Veteran's left shoulder disability to be both competent and credible.  However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners' opinions and the other medical evidence of record, as this is a medical determination that is complex.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)).  Thus, the Board finds that the lay opinions by themselves are outweighed by the medical evidence.

Therefore, the Board finds that the current ratings reasonably describe the Veteran's disability level and symptomatology associated with the left shoulder disability.  The Board has also considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim for a higher or separate rating.  Therefore, the benefit of the doubt doctrine is not applicable, and the claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

3.   Entitlement to a total disability rating based on TDIU, to include on an extra-schedular basis

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Total disability ratings for compensation 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 because of service-connected disabilities, provided that the Veteran meets the schedular requirements.  

Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

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 the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disability.  38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993).  

Thus, despite the Veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age which would have justified 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).

"Substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  "Marginal employment shall not be considered substantially gainful employment."  38 C.F.R. § 4.16(a).

In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

Analysis 

The Veteran contends that his service-connected disabilities prevent him from securing and maintaining substantially gainful employment. 

On March 13, 2006, the Veteran submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.  The Veteran completed four years of high school.  He last worked full-time as a cook in December 2004.  He reported becoming too disabled to work in December 2004, and his clavicle impairment prevented him from securing and following any substantially gainful occupation.  Before and since becoming too disabled to work, the Veteran had not had any education and/or training.

From March 13, 2006, to April 30, 2006, and January 26, 2011, to April 30, 2011, the Veteran was service connected for left shoulder disability rated at 100 percent and 30 percent from May 1, 2006, to January 25, 2011 and from May 1, 2011.  The Veteran was also service connected for left shoulder scar rated at 10 percent.  The Board notes that excluding a period of temporary total disability, i.e., from March 13, 2006, to April 30, 2006, and January 26, 2011, to April 30, 2011, the Veteran's overall rating was 40 percent.  The Veteran did not meet the threshold requirement for TDIU.  38 C.F.R. § 4.16(a).  Therefore, TDIU is not warranted on a schedular basis.

As the Veteran does not meet the schedular requirements for TDIU, the only remaining question is whether the Veteran was unable to secure or follow substantially gainful occupation because of his service-connected disabilities for purposes of an extraschedular TDIU evaluation under 38 C.F.R. § 4.16(b).  The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance.  Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating).  It may, however, determine that a particular case warrants referral to the Director of Compensation for extraschedular consideration under 38 C.F.R. § 4.16(b). 

For a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  Id.  This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  Id.

The Board notes that the Veteran was granted Social Security Administration (SSA) benefits effective May 10, 2006.  Social Security Administration determined that the primary disability that lead to the Veteran's unemployability was affective/mood disorder, and the secondary disability was diagnosis of dislocations, all types.  

In his November 2006 Vocational Rehabilitation and Employment (VR&E) counseling record, the counselor noted that the Veteran completed an extended evaluation plan of services in order to make a determination of his employability due to medical complications related to his service-connected disabilities.  However, it appeared that he continued to have chronic pain related to his shoulder surgery resulting in very limited use of his left side.  The Veteran submitted documentation from his ortho surgeon that stated that the Veteran was unable to use his left arm for any activities.  Also, due to the Veteran's chronic pain, he was prescribed Vicodin that he took daily.  Side effects per the Veteran include his inability to drive and feelings of being in a stupor (just sitting and not moving).  The Veteran was told that there was nothing that could be done to fix his shoulder.  He stated that he did not think that, at the time of the consult, he was able to sustain gainful employment.  Therefore, he requested that his vocational rehabilitation program be closed.  

In June 2006, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  The examiner noted that the Veteran's ROM was somewhat limited and difficult to interpret, and there was much resistance with passive ROM.  However, the Veteran was able to forward flex and abduct to 50 degrees.  The examiner was unable to assess the Veteran's passive ROM secondary to his resistance.  He described pain both actively and passively at 50 degrees of forward flexion and abduction with functional impairment secondary to his discomfort on external rotation.  Internal and external rotation were to 60 degrees and abduction to 30 degrees without functional impairment.  He had no evidence of significant muscle atrophy.  The Veteran's ROM during repetitive motions were the same.  There was no additional functional impairment due to pain, weakness, fatigability, incoordination, or flare-ups.  The Veteran did not use an assistive device.  The examiner stated that the Veteran would be able to work a sedentary-type job.

In May 2007, the Veteran was seen at the VA Westside, Chicago VA Medical Center: Psychiatry Attending Note.  At that time, the Veteran's concentration was "okay."  He stated that he could work on the computer for three to four hours at a stretch; watch TV for a couple of hours; and follow a group or seminar all the way through to the end.  Additionally, he enjoyed learning how to work with the computer.  In March 2008, the Veteran was able to play computer games for about four to five hours.  His speech was normal.  Additionally, the Veteran has been able to operate a vehicle.  In January 2010, the Veteran's addiction social worker noted that the Veteran was actively looking for employment.  The Veteran enrolled in a compensated work therapy (CWT) vocational Assist class.

In April 2009, the Veteran was seen for his left shoulder pain.  The Veteran's left shoulder ROM was severely limited.  Flexion was to three degrees, extension to negative five degrees, abduction to four degrees, and he had minimal internal and external rotation.  The examiner stated that the Veteran was severely restricted in all activities that required use of the left upper extremity.  Further, the Veteran would have extreme difficulty in performing any function requiring lifting, pulling, overhead activities, typing, or any type of manual labor.

During his February 2010 VA examination, the Veteran reported continuous left shoulder pain.  The pain occurred daily with an average intensity of 10 upon awakening.  The Veteran had marked limitation of movement and any activity involving the left shoulder causes an exacerbation of his pain.  The Veteran could not elevate his shoulder above approximately a 30-degree angle in any plane.  He had occasional swelling in the hands, but the shoulder problem had not affected his grip strength.  He was unable to do any lifting, pushing, or pulling, and essentially had no functionality in terms of activity using the left shoulder.  He compensated by using his right upper extremity for all activities.  The Veteran was able to flex his shoulder from zero to 25 degrees with functional limitation due to pain at 25 degrees.  He was able to abduct from zero to 30 degrees with functional limitation due to pain at 30 degrees, and he was able to extend from zero to five degrees with functional limitation due to pain at five degrees.  He was able to adduct no more than five to ten degrees with pain causing functional limitation.  Internal and external rotation were normal without painful limitation.  Active and passive ROM were unaffected by repetition.  The examiner noted no further functional limitation due to fatigue, incoordination, or flareup was noted.  The examiner stated that due to pain, the Veteran essentially had no functional ability regarding his left upper extremity.  The Veteran had a history of four years of high school and had worked as a cook.  The examiner stated, in his opinion, the Veteran was fully employable at jobs that he would be able to undertake utilizing only his right upper extremity such as desk type work.

In January 2011, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  On examination, the left shoulder ROM was somewhat difficult to ascertain secondary to his discomfort during motion.  However, with assistance, he was able to actively abduct and forward flex to about 45 degrees.  He was able adduct to 50 degrees and extend to 40 degrees.  Internal and external rotation were to 30 degrees.  The examiner stated that it was difficult to ascertain for any impingement type symptoms and/or the integrity of the rotator cuff given his limited ROM; however, during certain parts of the examination, his pain response appeared to be somewhat exaggerated and out of proportion to the rest of the examination.  His ROM during repetitive motion was somewhat difficult given his arthrofibrosis of the left shoulder as well as his fatigability.  Regarding employability, the examiner opined that it is more likely than not that the Veteran could seek gainful employment as his right upper extremity is dominant and no abnormalities of the latter were noted.  He can perform desk type work.

In June 2011, the Veteran submitted a statement from his attending psychiatrist.  The examiner stated that the Veteran is unemployable due to his left shoulder disability.  The psychiatrist stated that when he first met the Veteran, the Veteran was working a full-time job at a restaurant.  However, as the problem with his left shoulder worsened, he was less and less able to perform his duties.  Towards the end of his employment, co-workers were performing his duties for him.  However, by the end of 2005, the situation finally became so severe that he was terminated.  The examiner stated that the Veteran had not been able to find employment since the sequelae of his left shoulder injury caused him to lose his job at the restaurant.  The examiner considered the Veteran to be completely disabled by his medical condition (the issue with his left shoulder) and his mood disorder-which is severely impacted by the left shoulder disability for which he is already partially service-connected.

In April 2012, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  The Veteran's shoulder condition impacted his ability to work, i.e., he had no motion in his left shoulder.  There was also no muscle movement in the left shoulder.  

In May 18, 2012, the Veteran stated that someone had stolen his car; however, he was able to purchase another one.  He reported, in the past week, he enjoyed driving his car.  He also reported playing with his grandchild.

As noted above, on April 10, 2012, the Board noted that the Veteran's vocational rehabilitation file revealed that the Veteran served in the Marine Corps as a cook, and his relevant post-service work has also been in food service mainly as a cook.  The Board concluded that there was evidence indicating that the Veteran might be unemployable due to his left shoulder disability.  Based on this information, the Board remanded the claim and instructed the RO to refer the issue to the Director for extraschedular consideration.

In a November 2012 opinion, the DRO determined that the Veteran was not entitled to individual unemployability on an extraschedular basis.

In August 2013, the Board stated that it appeared that, in November 2012, the AMC prepared a Memorandum in which entitlement to TDIU on an extraschedular basis was denied.  The Board noted that the November 2012 memo did not satisfy the Board's April 2012 remand instructions.  As such, the Board remanded the claim.

In January 2014, the Veteran was afforded a VA examination to determine the nature and etiology of his peripheral nerve conditions.  The examiner stated that the Veteran's peripheral nerve condition and/or peripheral neuropathy impacted his ability to work.  The examiner stated that the Veteran would have difficulty lifting things and using his left arm because of local musculoskeletal injury (not because of a nerve injury-as there is no nerve injury).  However, because the Veteran is right-handed, he should be able to perform desk work.

In March 2014, the Board noted that the April 2012 remand instructions instructed the RO to referred both issues on appeal to the Director for extraschedular consideration.  In 2013, the Board again remanded the issues for referral to the Director.  However, there was no indication that this was accomplished.  The March 2014 Board determined, in order to comply with the remand instructions, an additional remand was required for the referral to be completed.  

In November 2018, VA obtained an advisory opinion from the Director.  The Director noted that service connection is established for left clavicle separation at 30 percent and left shoulder scar at 10 percent.  The Veteran's combined evaluation is 40 percent.  The Veteran claimed TDIU citing clavicle impairment as the reason he stopped working in December 2004 as a cook.  The Veteran's past medical treatment included, but not limited to, chronic rhinitis, obstructive sleep apnea, anxiety, cervicalgia, depressive disorder, type II diabetes, morbid obesity, hyperlipidemia, arm limited motion, hypertension, migraines, bipolar disorder, and shoulder separation.  The Veteran's vocational rehabilitation file showed that he served in the Marine Corps as a cook, and his post service work has also been in food service.  The Director stated that based on the totality of evidence, extra-schedular entitlement to TDIU was not shown due exclusively to migraines or hand scar, nor was there any collective impact shown.  While the Veteran's migraines and hand scar made occupational activity difficult, no preclusion was shown.  

In February 2019, the Board acknowledged that the RO complied with the Board's March 2014 remand order.  However, the February 2019 Board found that a clarification was warranted.  The Board stated that the advisory opinion provided that TDIU was not warranted based on an extraschedular basis.  However, the language following the extraschedular evaluation for TDIU made it unclear whether an extraschedular rating was granted for the Veteran's left shoulder disability.  The Board remanded the claim for a clarifying opinion.  

As discussed above, in November 2020, the Director provided an advisory opinion regarding an extraschedular evaluation for the Veteran's left shoulder disability.  

In February 2021, the Board noted that in the November 2018 advisory opinion addressing whether TDIU was warranted on an extra-schedular basis, the Director discussed whether the Veteran was unemployable due to migraines and a hand scar.  The Board noted that the Veteran's service-connected disabilities include left shoulder disability and left shoulder scar.  The Board determined that the RO should refer the TDIU and left shoulder disability claims back to the VA Director for extra-schedular consideration.  

In May 2021, the Veteran was afforded a VA examination to determine the severity of his left shoulder disability.  The Veteran's condition impacted his ability to perform any type of occupational task.  The examiner stated, "speaking solely from the standpoint of his service-connected left shoulder condition, the Veteran could have problems in an occupational setting performing jobs that involve strenuous physical work such as lifting, pushing, and pulling heavy loads using his left arm or performing overhead work using his left arm.  He could tolerate other types of work that fall in the sedentary to light duty range of physical demand."

The Board notes that the Veteran's service-connected left shoulder scar did not impact his ability to work.

In a June 2021 advisory opinion, the Director denied entitlement to TDIU under 38 C.F.R. § 4.16(b).  The Veteran reported a high school level education.  He last worked as a cook in 2004.  The Director stated that the Veteran had a history of left shoulder pain from a left clavicle acromioclavicular separation and fracture.  The left arm is the non-dominant arm.  The left shoulder condition caused painful and reduced ROM for the left arm.  The pain was aggravated by lifting and carrying with the left arm.  The left arm pain and ROM was reported to improve with physical therapy, home exercise, and corticosteroid injections.  There was a keloid scar to the left shoulder that was reported to be non-tender.  The scar did not additionally limit left arm ROM.  The Veteran was not able to perform activities that involved heavy lifting, carrying, or reaching overhead using his left arm.  The Director stated that while the Veteran had limitations caused by his service-connected left shoulder condition, the evidence did not support a finding that the left shoulder condition alone would preclude all forms of substantially gainful activity.  The Director determined that the overall evidence failed to support the contention that the service-connected disabilities or a combination of the effects of those disabilities prevented employment.  Entitlement to extra-schedular TDIU benefits was not established.

In adjudicating the TDIU question, the Board is permitted to exercise jurisdiction over the question and gives no deference to the Director's adjudication.  See Kuppamala v. McDonald, 27 Vet. App. 447 (2015).

However, after consideration of the medical and lay evidence of record, the Board finds that the preponderance of record does not show that TDIU on an extraschedular basis is warranted.  The Board notes that the central inquiry is whether the Veteran's service-connected disabilities, alone, is of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment.  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The Board acknowledges the Veteran experiences limitations as a result of his service-connected left shoulder disability; however, the Board finds the totality of the evidence weighs against the claim.  The Veteran's psychiatrist considered the Veteran to be completely disabled due to the left shoulder disability, and the examiner also considered the Veteran to be completely disabled by his medical condition (the issue with his left shoulder) and his mood disorder-which is severely impacted by the left shoulder disability.  The psychiatrist stated that the Veteran worked as a cook in a restaurant; but, as the problem with his left shoulder worsened, he was less and less able to perform his duties.  The situation finally became so severe that he was terminated.  The examiner stated that the Veteran had not been able to find employment since the sequelae of his left shoulder injury caused him to lose his job at the restaurant.  However, only service-connected disabilities may be considered in a claim of entitlement to TDIU.  The psychiatrist considered the Veteran to be completely disabled by his medical condition (the issue with his left shoulder) and his mood disorder.  However, the VA examiners stated that the Veteran is right hand dominant; therefore, the Veteran would be able to perform sedentary-type work.  The Board notes that even with his pain, the Veteran was able to, and enjoyed, learning how to work with the computer, play games on the computer for hours, and was able to follow a group or seminar all the way through to the end.  Therefore, although the Veteran is unable to perform the tasks required at his previous employment, his records do not demonstrate that he is precluded from performing all types of gainful employment.       

The Board notes that the Veteran was awarded SSA benefits and VA is required to consider the SSA's findings.  The Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA.  See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).  However, the Board notes that in awarding the Veteran unemployability, SSA considered the Veteran's non-service-connected psychiatric condition.  However, only service-connected disabilities may be considered in a claim of entitlement to TDIU.

While the Board does not doubt that the Veteran's service-connected disabilities had a significant impact on his employability, the weight of the evidence does not support his contention that his service-connected disabilities were of such severity so as to preclude his participation in any form of substantially gainful employment.   

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Moore

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.