Citation Nr: 21067677 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 11-01 369 DATE: November 5, 2021 ORDER A schedular rating in excess of 30 percent for residuals of a gunshot wound to the left shoulder with damage to muscle group I and clavicle fracture is denied. Referral for consideration of an extraschedular rating for residuals of a gunshot wound to the left shoulder with damage to muscle group I and clavicle fracture is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's service-connected residuals of a gunshot wound to the left shoulder with damage to muscle group I and clavicle fracture have been manifested by no more than severe injury to muscle group I. 2. The Veteran is in receipt of the highest schedular rating for injury to muscle group I, and his symptoms and their severity are contemplated by the schedular rating criteria. 3. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 30 percent for residuals of a gunshot wound to the left shoulder with damage to muscle group I and clavicle fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.73, Diagnostic Code 5301 (2020). 2. The criteria for referral for consideration of an extraschedular rating for residuals of a gunshot wound to the left shoulder with damage to muscle group I and clavicle fracture rating have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321(b) (2020). 3. The criteria for establishing entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the Board denied a rating in excess of 30 percent for residuals of a gunshot wound to the left shoulder, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a December 2015 Memorandum Decision, the Court determined that the Board failed to adequately explain why the Veteran was not entitled to a separate rating for arthritis of the left shoulder and failed to properly adjudicate a claim for TDIU, which had been reasonably raised by the record. The Court vacated the Board's October 2014 decision and remanded both claims for readjudication. The claims were subsequently remanded by the Board for further development in July 2016, August 2018, July 2020, and April 2021. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that in July 2020, the Board granted service connection for arthritis of the left shoulder as secondary to the Veteran's service-connected gunshot wound. In an October 2020 rating decision, a separate 20 percent rating for arthritis of the left shoulder was granted under Diagnostic Code 5201, effective February 11, 2020, and the Veteran was notified of that decision in a letter dated October 5, 2020. Thereafter, the Veteran called in inquiring as to retroactive payment regarding the left shoulder disability. In November 2020, the Veteran was provided an audit letter of his benefit payments. In February 2021, the Board advised the Veteran that if he wished to seek review of the rating or effective date assigned for arthritis of the left shoulder, he must elect an administrative review option by timely filing a request for Higher Level Review (VA Form 20-0996) or an appeal to the Board (Notice of Disagreement, VA Form 10182) within one year of the date of the letter accompanying the October 2020 rating decision. See 38 C.F.R. §§ 3.2500, 3.2601, 20.202, 3.203 (2020). The Veteran did not elect one of the aforementioned administrative review options; therefore, that issue is not presently before the Board. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Rating Schedule distinguishes between the major/dominant extremity and the minor/non-dominant extremity for rating purposes. 38 C.F.R. § 4.69. In this case, the record shows that the Veteran is right-handed. Thus, his service-connected left shoulder disability affects his non-dominant extremity. Additionally, the evaluation of the same manifestation or disability under different diagnoses is to be avoided. 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes are only permissible where none of the symptomatology for one condition is duplicative of or overlapping with the symptomatology of another condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 1. Entitlement to a schedular rating in excess of 30 percent for residuals of a gunshot wound to the left shoulder with damage to muscle group I and clavicle fracture For purposes of rating muscle injuries, the skeletal muscles of the body are divided into 23 muscle groups in five anatomical regions. 38 C.F.R. § 4.55(b). There are six muscle groups for the shoulder girdle and arm anatomical region (muscle groups I through IV). 38 C.F.R. §§ 4.55(b), 4.73, Diagnostic Codes 5301 -5304. The Veteran's service-connected residuals of a gunshot wound to the left shoulder with damage to muscle group I and clavicle fracture have been assigned a 30 percent rating under the criteria set forth in 38 C.F.R. § 4.73, Diagnostic Code 5301, relating to muscle group I. Muscle group I is comprised of the extrinsic muscles of the shoulder girdle, including the trapezius, levator scapulae, and the serratus magnus. The functions of muscle group I include upward rotation of the scapula and elevation of the arm above shoulder level. 38 C.F.R. § 4.73, Diagnostic Code 5301 Under Diagnostic Code 5301, a 0 percent rating is assigned for slight injury to muscle group I on the non-dominant extremity; a 10 percent rating is assigned for moderate injury to muscle group I on the non-dominant extremity; a 20 percent rating is assigned for moderately severe injury to muscle group I on the non-dominant extremity; and a maximum 30 percent rating is assigned for severe injury to muscle group I on the non-dominant extremity. 38 C.F.R. § 4.73, Diagnostic Code 5301. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, a lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and the objective findings related to the injury. 38 C.F.R. § 4.56(d). A severe disability of muscles involves a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with a shattered bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. It involves a history of hospitalization for a prolonged period for treatment and a record of consistent complaint of cardinal signs and symptoms of muscle disability worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings include ragged, depressed and adherent scars indicating wide damage to the muscle groups in the missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movement compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies, indicating intermuscular trauma and the explosive effect of the missile; (B) adhesion of the scar to one of the long bones, scapula, or pelvic bones, with epithelial sealing rather than the true skin covering in an area where the bone is normally protected by muscle; (C) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) visible or measurable atrophy; (E) adaptive contractions of an opposing group of muscles; (F) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (G) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). The Veteran is in receipt of the highest schedular rating available for injury to muscle group I. Thus, the Board will consider other potentially applicable diagnostic codes relating to disabilities of the shoulder. Under Diagnostic Code 5200, a 20 percent rating is assigned for favorable ankylosis of the scapulohumeral articulation of the minor extremity, abduction to 60 degrees, can reach mouth and head. A 30 percent rating is assigned for intermediate between favorable and unfavorable ankylosis of the scapulohumeral articulation of the minor extremity. A maximum 40 percent rating is assigned for unfavorable ankylosis of the scapulohumeral articulation of the minor extremity, abduction limited to 25 degrees from side. 38 C.F.R. § 4.71a, Diagnostic Code 5200. Generally, there will be no rating assigned for injuries to muscle groups which act upon an ankylosed joint. 38 C.F.R. § 4.55(c). However, if muscle groups I and II are severely disabled, the evaluation of the shoulder joint under Diagnostic Code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups themselves will not be rated. 38 C.F.R. § 4.55(c)(2). Thus, a higher, but not separate, rating may be assigned for unfavorable ankylosis under Diagnostic 5200 if muscle groups I and II are severely disabled. Upon review of the record, the Board finds that a rating is not warranted under Diagnostic Code 5200. The Veteran underwent VA examinations in March 2010, September 2013, September 2017, August 2019, and February 2020. However, there was no evidence of ankylosis noted during any of the VA examinations, and the Veteran's treatment records likewise do not show evidence of ankylosis. Accordingly, a higher rating is not warranted for ankylosis of the left shoulder under Diagnostic Code 5200. Treatment records and VA examination reports show that the Veteran's left shoulder exhibited pain, decreased strength, fatigability, lack of coordination, and decreased range of motion. Under Diagnostic Code 5201, a maximum rating of 30 percent is warranted for limitation of motion of the minor arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Plate I, Diagnostic Code 5201. Thus, a higher schedular rating under that Diagnostic Code is not assignable. Moreover, the Veteran is already in receipt of a 30 percent rating for a severe injury to muscle group I, which controls upward rotation of the scapula and elevation of the arm above shoulder level. See 38 C.F.R. § 4.73, Diagnostic Code 5301. That rating specifically contemplates functional loss, including loss of power, weakness, fatigue, pain, impairment of coordination and uncertainty of movement of the arm. See 38 C.F.R. § 4.56(c), (d)(4). The Board finds that assigning a separate rating under Diagnostic Code 5201, which likewise contemplates symptoms of pain, fatigue, weakness, and impaired coordination with movement and elevation of the arm, would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261-62. Therefore, the Board finds that a separate rating may not be assigned under Diagnostic Code 5201. The Board acknowledges that the RO has already assigned a separate 20 percent rating for left shoulder arthritis based on limitation of motion of the arm under Diagnostic Code 5201 beginning February 11, 2020; however, the Board will not disturb that rating. Additionally, the evidence of record shows no impairment of the humerus (fibrous union, nonunion or malunion, or dislocation of the scapulohumeral joint), nor malunion or nonunion of the clavicle or scapula. Thus, Diagnostic Codes 5202 and 5203 are not for application. The Board has also considered whether ratings under other muscle group codes is warranted. However, the August 2020 VA examiner noted that the injury was to muscle group I, which was consistent with prior examinations, and there did not appear to be involvement of muscle group III or other muscle groups. Thus, a rating under other muscle diagnostic codes is not warranted. Extraschedular Rating Ratings shall be based, as far as practicable, upon the average impairments of earning capacity. 38 C.F.R. § 3.321(b). To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, VA may assign an extraschedular rating commensurate with the average impairment of earning capacity due exclusively to that disability. Id. An extraschedular rating may not be assigned based on the combined effects of multiple service-connected disabilities. See 82 Fed. Reg. 57830 (Dec. 8, 2017) (eff. Jan. 8, 2018); see also Thurlow v. Wilkie, 30 Vet. App. 231, 239-40 (2018) (holding that applying the amendment barring extraschedular ratings based on the combined effect of multiple service-connected disabilities to all claims pending before VA, the Court, or the Federal Circuit on January 8, 2018, did not have an impermissible retroactive effect). The governing norm in these exceptional cases is a finding that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b). Extraschedular ratings are only appropriate after VA has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. Long v. Wilkie, 33 Vet. App. 167, 173-75 (2020). "[W]here a disability proves capable of evaluation by conventional means, it cannot be deemed exceptional." Id. The Board is precluded from assigning a rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for extraschedular consideration to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). 2. Entitlement to referral for consideration of an extraschedular rating for residuals of a gunshot wound to the left shoulder Upon review of the record, the Board finds that referral to the Director of Compensation service for consideration of an extraschedular rating is not warranted. As previously noted, the rating assigned under Diagnostic Code 5301 contemplates symptoms of loss of power, weakness, a lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement of the arm. 38 C.F.R. § 4.56(c). Moreover, the 30 percent rating assigned for a severe injury to muscle group I also contemplates symptoms including ragged, depressed and adherent scars indicating wide damage to the muscle groups in the missile track; loss of deep fascia or muscle substance; soft flabby muscles in the wound area; muscles that swell and harden abnormally in contraction; severe impairment of strength, endurance, or coordinated movement upon testing; X-ray evidence of minute multiple scattered foreign bodies; adhesion of the scar to one of the long bones, scapula, or pelvic bones, with epithelial sealing rather than the true skin covering in an area where the bone is normally protected by muscle; atrophy, including of muscle groups not in the track of the missile; adaptive contractions of an opposing group of muscles; and induration or atrophy of an entire muscle; and a history of an inability to keep up with work requirements. 38 C.F.R. § 4.56(d)(4). In this case, the Veteran's residuals of a gunshot wound to the left shoulder have been manifested by pain, limitation of motion, decreased strength, fatigability, and lack of coordination, which he asserts affect his ability to perform overhead work, climb, engage in heavy lifting, sleep on his left side, and perform his prior work as an electrician for U.S. Steel. Thus, all of the Veteran's symptomatology and level of impairment are contemplated by the schedular rating criteria. Accordingly, referral for consideration of an extraschedular rating is not warranted. TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service. See Bowling, 15 Vet. App. at 10. 3. Entitlement to TDIU During the period on appeal, service connection has been in effect for residuals of a gunshot wound to the right shoulder with damage to muscle group I and clavicle fracture, rated as 30 percent disabling; arthritis of the left shoulder, rated as 20 percent disabling beginning February 11, 2020; and a scar, rated as 0 percent disabling. The Veteran's combined disability rating was 30 percent prior to February 11, 2020, and 40 percent thereafter. Thus, the schedular criteria for entitlement to TDIU have not been met at any time. Upon review of the record, the Board finds that referral to the Director of Compensation Service for consideration of TDIU on an extraschedular basis is not warranted. The highest level of education attained by the Veteran is a high school diploma with additional electrical training. The Veteran worked as an electrician for U.S. Steel from 1967 until his retirement in 2000. The Veteran asserts that he retired when he did because he could no longer perform overhead work of lifting heavy materials due to his service-connected left shoulder disability. A December 2020 correspondence from the Veteran's former employer indicates that the Veteran retired on a 30-year pension in March 2000, and there was no mention of disability. As found above, the Veteran's service-connected left shoulder disability has been manifested by pain, limitation of motion, decreased strength, fatigability, and lack of coordination. During the March 2010 VA examination, the Veteran reported daily shoulder pain, which was worse in the morning and improved somewhat throughout the day. He stated that his pain worsened with cold or damp weather and when he did too much activity, such as cleaning his house or shoveling show. He reported being unable to shovel his snow during a recent snowstorm and no longer being able to row his boat. He also reported limiting his lifting to no more than 40 or 50 pounds and having to stretch his arm after driving for an hour. He also reported that his left shoulder disability caused some difficulty buttoning and zipping his clothes, particularly after the items have been in the dryer and were stiff. During the September 2013 and September 2017 VA examinations, the Veteran reported constant achy pain, which increased with cold or damp weather, when elevating the arm above the head, and when lifting heavy objects. He denied any limitations in activities of daily living due to his left shoulder disability, and he reported being able to care for the responsibilities of his home, but noted that he had someone help him with housekeeping and yard work that required overhead work or heavy lifting. The September 2017 VA examiner indicated that the Veteran reported being able to drive and perform activities of daily living independently and without difficulty. The examiner indicated that the Veteran's service-connected left shoulder disability would prevent him from working a physically laborious job. During the August 2019 VA examination, the Veteran reported being unable to push a lawn mower, having to be cautious when turning the wheel, and being unable to do any lifting. During the February 2020 VA examination, the Veteran reported difficulty lifting and carrying groceries in from the car. In summary, the record shows that the Veteran's service-connected left shoulder disability has been manifested by pain, limitation of motion, decreased strength, fatigability, and lack of coordination, which reportedly affected his ability to perform overhead work, climb, engage in heavy lifting, push a lawnmower, and perform physically laborious work, including his prior job as an electrician for U.S. Steel. However, for purposes of establishing entitlement to TDIU, the question is whether, given the Veteran's education and occupational experience, he is capable of performing the physical and mental acts required by employment. See Van Hoose, 4 Vet. App. at 363. In this case, the Veteran's service-connected left shoulder disability affects his non-dominant arm and does not prevent the Veteran from standing, walking, bending, squatting, kneeling, driving, writing, or interacting with others. Although he cannot perform overhead work with his left arm or engage in heavy lifting or pushing, the record does not show that the Veteran's left shoulder disability prevents him from using both hands and moving the left arm below shoulder level. Given the Veteran's education and experience working as an electrician for over 30 years, the Board finds that his left shoulder disability does not prevent him from performing a variety of jobs that do not require physically laborious work, such as answering telephones, scheduling appointments, or providing estimates for an electrical company or working in customer service or retail. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. Therefore, referral for extraschedular consideration of entitlement to TDIU is not warranted. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a rating in excess of that already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.