Citation Nr: 21065741 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 20-16 305 DATE: October 27, 2021 ORDER Entitlement to a rating of 30 percent, but no higher, for the rating period from October 19, 2017 to December 26, 2019 for service - connected right shoulder rotator cuff tear with acromioclavicular joint osteoarthritis and limitation of motion is granted subject to the rules and regulations governing the award of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. It was factually ascertainable from October 19, 2017 that the Veteran's right shoulder disorder has been manifested by limitation of motion to midway between the side and shoulder level. 2. The competent evidence reasonably establishes the Veteran's service-connected disabilities are of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. For the rating period from October 19, 2017 to December 26, 2019, the criteria for a disability rating of 30 percent but no higher, for a right shoulder disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71A, Diagnostic Code (DC) 5201. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1959 to September 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the claim for TDIU, as will be discussed in greater detail below, the evidence in this case raises the question of whether the Veteran is unemployable as a result of his service-connected disabilities. The Board thus finds that entitlement to a TDIU has been raised by the record and has re-characterized the issues on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding the request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather, can be part of claim for increased compensation); see also Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001) (holding that a separate formal claim is not required in cases where an informal claim for a TDIU has been reasonably raised). Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non - weight bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. 303. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Entitlement to a rating in excess of 20 percent prior to December 26, 2019 for service - connected right shoulder rotator cuff tear with acromioclavicular joint osteoarthritis and limitation of motion. For the rating period prior to December 26, 2019, the Veteran's right shoulder rotator cuff tear with acromioclavicular joint osteoarthritis and limitation of motion is evaluated at 20 percent under Diagnostic Code (DC) 5010-5201. 38 C.F.R. § 4.71a. He seeks an increase for this period. Hyphenated Diagnostic Codes (DCs) are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2021). The additional DC, shown after the hyphen, represents the basis for the rating, while the primary DC indicates the underlying source of the disability. Diagnostic Code 5010 represents arthritis due to trauma, substantiated by X-ray findings, which in turn is to be rated under Diagnostic Code 5003 as degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id., Diagnostic Code 5003. In this case, the Veteran's right shoulder disability affects the dominant (major) upper extremity because the Veteran is right-handed as documented in the October 2017 Shoulder and Arm Conditions VA examination report. Under Diagnostic Code 5201, limitation of motion of an arm at the shoulder level warrants a 20 percent rating whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 30 percent rating is warranted for the major extremity and 20 percent for the minor extremity. When motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and 30 percent for the minor extremity. 38 C.F.R. § 4.71a. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2017). In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. After a review of all the evidence, lay and medical, the Board finds that prior to December 26, 2019 the criteria for a 30 percent rating under DC 5201 for the Veteran's right shoulder disability have been more nearly approximated. 38 C.F.R. §§ 4.3, 4.7. Here, the date of claim was April 24, 2018. Accordingly, the Veteran is entitled to a one year look back period through April 24, 2017. Hart v. Mansfield, 21 Vet. App. 505 (2007). A September 2017 MRI of the right shoulder confirmed a full thickness near complete tear of the right rotator cuff. A September 2017 private orthopedic consultation report recommended reverse right shoulder joint replacement surgery. The Veteran underwent a VA Shoulder and Arm Conditions examination on October 19, 2017, during which he reported being unable to lift his right arm, hold items with his right arm and was unable to drive. The Veteran also reported spontaneous dislocations with any attempt to raise the right arm. The examiner noted that the Veteran was in significant pain and his right arm was in guarded status due to a full thickness right shoulder rotator cuff tear. A civilian physician recommended right shoulder joint replacement surgery and the Veteran was waiting for cardiac clearance for that procedure. The examiner indicated that given the high risk for spontaneous dislocations with any attempt to manipulate the right arm, range of motion testing could not be conducted. Evidence of pain with weight bearing, objective evidence of localized tenderness or pain on palpation of the joint, and objective evidence of crepitus was noted. The Veteran required the constant use of a shoulder brace. The October 2017 VA examiner concluded that Veteran's ability to perform physical activities that required him to lift his right arm were affected but opined that sedentary occupational activities would be less severely affected. A subsequent June 2018 Shoulder and Arm Conditions VA examination indicated that the Veteran had shoulder instability with frequent episodes of recurrent dislocations. As a result, range of motion testing was unable to be performed. Symptoms included right shoulder pain, numbness, and weakness. The June 2018 VA examiner stated that the Veteran's right shoulder disability impacted his ability to perform occupational tasks such as lifting and weight bearing. It prevented him from participating in any strenuous activity. Further, he could not lift his shoulder above his waist, or it would pop out of place. A September 2018 Addendum Shoulder report confirmed that the Veteran was unable to raise his arm above his waist due to his shoulder condition. Based on the above, from October 19, 2017 to December 26, 2019, it is factually ascertainable that the right shoulder disability has been manifested by symptoms of painful motion that more nearly approximates limitation of motion of the arm midway between his side and right shoulder. Thus, from October 19, 2017 to December 26, 2019, the Board finds that the criteria for a rating of 30 percent (but no higher) under Diagnostic Code 5201 have been met. 38 C.F.R. §§ 4.3, 4.7. The Board further finds that, for the entire rating period prior to December 26, 2019, a higher rating in excess of 30 percent for the right shoulder disability under any of the other diagnostic codes pertaining to the shoulder is not warranted. With respect to Diagnostic Code 5201, the Board notes that the Veteran is only entitled to a single disability rating for the right arm for limited motion at the shoulder joint. In Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013), the Federal Circuit held that 38 C.F.R. § 4.71a, Diagnostic Code 5201 does not provide separate ratings for limitation of motion in the flexion and abduction planes for a single arm, but rather a single rating based on "limitation of motion of" the arm. As such, even though arguably the Veteran has limitation of motion both in flexion and abduction in this case, only a single rating, based on the greatest type of limitation of motion, is warranted. The Board notes that the Veteran is also in receipt of a 30 percent rating under DCs 5003-5202 for recurrent dislocations of/at the right scapulohumeral joint with frequent episodes and guarding of all arm movements. The Board will not disturb that rating. Lastly, the evidence of record, to specifically include the VA examination reports dated October 2017, June 2018 and September 2018, does not demonstrate that the right shoulder disability has manifested in ankylosis of the scapulohumeral articulation, fibrous union, nonunion, or loss of head of the humerus, or that the Veteran underwent a total shoulder joint replacement; thus, the Board finds that a higher rating in excess of 30 percent under Diagnostic Codes 5200, 5202, and 5051 is not warranted. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. 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 justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran contends that his service-connected disabilities render him unemployable. On review of the record, the Board finds that such is reasonably shown. The Veteran's current service-connected disabilities radiculopathy of the right upper extremity rated at 40 percent, hypothyroidism associated with squamous cell carcinoma rated at 30 percent, are hypertension with chronic kidney disease, rated 60 percent; right shoulder rotator cuff tear with frequent episodes and guarding of all arm movements associated with squamous cell carcinoma rated at 30 percent, right shoulder rotator cuff tear with limitation of motion associated with squamous cell carcinoma rated at 30 percent, bilateral hearing loss rated at 20 percent, cervical spine degenerative joint disc disease associated with squamous cell carcinoma rated at 20 percent, tinnitus rated at 10 percent, squamous cell carcinoma of the right base of the tongue rated at 10 percent, dysphagia associated with squamous cell carcinoma rated at 10 percent, scarring s/p repair of macular hole left eye associated with squamous cell carcinoma rated at 10 percent, sinus bradycardia rated at 0 percent, chest scar rated at 0 percent, and coronary artery disease rated at 60 percent. At all times during the period on appeal the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16 (a), have been met. A January 2012 Application for Increased Compensation Based on Unemployability (TDIU claim) reflects he has not worked full time since June 2002. As discussed above, the October 2017, June 2018 and September 2018 VA examiners all indicated that the Veteran's the right shoulder disability prevented the Veteran from engaging in occupations requiring physical activities and impacted his ability to perform sedentary work. Specifically, his right shoulder was so unstable that it would spontaneously dislocate with any movement. A total shoulder replacement was recommended by a civilian physician however the Veteran did not receive cardiac clearance for the procedure. In addition to restrictions and limitations in movement of his right shoulder, right upper extremity and his dominant right hand, the Veteran also experienced pain, weakness, numbness, and fatigue due to his right shoulder condition. He reported that he could not drive as a direct result of his right shoulder disability. (Continued on the next page) The Board has carefully reviewed the medical and lay evidence of record and it is consistent with the symptomatology discussed by the VA examiners as well as by the Veteran's civilian orthopedist. The Board finds that the symptoms caused by the Veteran's service - connected right shoulder disability as well symptoms from hearing loss, neck degenerative joint disease, and difficulty swallowing including pain, fatigue, weakness, and spontaneous dislocation and other impairment of arm motion, when taken in combination are of sufficient severity to produce unemployability. In particular, the severity of the Veteran's symptomatology precludes him from maintaining the persistence and pace required to sustain employment in any occupation. Given the foregoing body of evidence, the Board resolves all reasonable doubt in the Veteran's favor (as required by law) and concludes that the evidence supports a finding that his service-connected disabilities preclude him from securing or following substantially gainful employment. Therefore, the criteria for establishing entitlement to TDIU are met. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.