Citation Nr: 21068821 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 09-19 245 DATE: November 15, 2021 ORDER A 30 percent rating, no higher, for right clavicle fracture residuals prior to July 27, 2017 is granted. A rating in excess of 30 percent for right clavicle fracture residuals from July 27, 2017 is denied. An earlier effective date of March 28, 2008 for a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the evidence supports limitation of motion of the right arm midway between side and shoulder prior to July 27, 2017. 2. The preponderance of the evidence is against finding right arm limitation of motion met or approximated 25 degrees from his side. 3. From March 28, 2008 to October 28, 2009, the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation consistent with his education, skills, training, and work history. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for right clavicle fracture residuals prior to July 27, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5201. 2. The criteria for a rating in excess of 30 percent for right clavicle fracture residuals from July 27, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5201. 3. The criteria for entitlement to a TDIU, effective March 28, 2008, have 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 January 1961 to January 1965. In August 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. A November 2017 Board decision denied a rating in excess of 20 percent for residuals of a fractured right clavicle prior to July 27, 2017 and granted a rating of 30 percent thereafter. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In November 2018, the Court issued an order that vacated the Board's decision and remanded the matters on appeal for adjudication consistent with the Joint Motion for Remand (JMR) by the parties. Increased Rating 1. Entitlement to a rating in excess of 20 percent for right clavicle fracture residuals prior to July 27, 2017 2. Entitlement to a rating in excess of 30 percent for right clavicle fracture residuals from July 27, 2017 The Veteran ia assigned a 20 percent rating for right clavicle fracture residuals prior to July 27, 2017 and a 30 percent rating thereafter. The Veteran contends that he is entitled to a higher rating. The Veteran's right arm is his major extremity. Under DC 5201, for the major extremity, limitation of motion of the arm at shoulder level warrants a 20 percent rating, limitation of motion of the arm midway between side and shoulder warrants a 30 percent rating, and limitation of motion of the arm to 25 degrees from side warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a, DC 5201. A September 2008 VA examination reported pain in the right shoulder, without swelling, heat, redness, instability, giving way, locking, fatiguability, or lack of endurance. The Veteran reported right shoulder flare-ups described as increased pain 3 times a month, generally lasting 6 hours, at a severity of 8 out of 10. He stated during flare-ups he had marked difficulty reaching overhead and heavy lifting. Range of motion of the right arm showed flexion to 140 degrees with pain at 130 degrees, abduction to 120 degrees with pain at 110 degrees, external rotation to 90 degrees with pain at 80 degrees, and internal rotation to 90 degrees without pain. The clinician noted there was no additional limitation of motion with pain, fatigue, weakness, lack or endurance, or incoordination with repetitive use. There was no evidence of ankylosis. A September 2008 Veteran statement reported although he is right-handed, because of pain to his right upper extremity, he used his left arm to eat, write, and comb his hair. A May 2009 VA Form 9 stated at the September 2008 VA examination he was able to raise his arm to shoulder level, only with assistance of his left arm. He stated he could not lift his right arm to shoulder level without assistance. The Veteran requested a 30 percent rating. At an August 2012 Board hearing, the Veteran demonstrated to the VLJ that he could not lift his arm above 45 degrees. He reported needing to comb his hair and eat with his left arm due to right arm pain. He reported his current right shoulder problems were of similar severity as when he filed his claim. At an October 2013 VA examination, the Veteran reported flare-ups described as pain and inflammation. Right arm range of motion testing showed flexion to 165 degrees with pain at 80 degrees and abduction to 160 degrees with pain at 65 degrees. The clinician denied evidence of ankylosis. At an April 2015 VA orthopedic treatment visit, the Veteran reported pain wakes him up at night if he turns onto his right shoulder and is worse with weather changes. He reported he is unable to do overhead work. Physical examination showed right arm flexion to 120 degrees, abduction to 100 degrees, external rotation to 45 degrees, and internal rotation to 60 degrees. A May 2015 VA occupational therapy visit reported right shoulder pain was exacerbated with reaching, lifting, laying on his arm, and cold. He reported pain affects the activities of daily living of dressing, bathing, reaching, lifting, and home maintenance/cleaning. Right arm range of motion testing showed flexion to 76 degrees, abduction to 86 degrees, and external rotation to 30 degrees. A June 2015 VA occupational therapy visit showed flexion to 72 degrees, abduction to 81 degrees, and external rotation to 33 degrees. A July 2015 VA examination stated the Veteran denied right shoulder flare-ups. Right arm range of motion testing showed flexion to 165 degrees, abduction to 165 degrees, external rotation was normal, and internal rotation to 85 degrees. The clinician stated the Veteran was examined immediately after repetitive use over time and opined pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time. The clinician denied evidence of ankylosis. A July 2017 VA examination reported continued right shoulder pain. The Veteran reported flare-ups described as increased pain with changes in the weather or using his arm too much. Right arm range of motion showed flexion to 90 degrees, abduction to 70 degrees, external rotation to 40 degrees, and internal rotation to 70 degrees. The clinician stated he was unable to say without resorting to speculation whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over a period of time or during flare-ups. The clinician noted the Veteran showed significant loss of range of motion during repetition on examination. The clinician stated there was no ankylosis. The Veteran reported sometimes feeling his arm is going to come off and he can barely move it. A March 2019 VA treatment visit showed right arm flexion to 100 degrees, abduction to 45 degrees, and external rotation to 45 degrees. An August 2019 VA physical therapy visit showed right arm flexion to 96 degrees, abduction to 94 degrees, external rotation to 45 degrees, and internal rotation to 30 degrees. A September 2019 VA physical therapy visit showed flexion to 110 degrees, abduction to 100 degrees, external rotation to 45 degrees, and internal rotation to 32 degrees. A December 2019 VA examination noted chronic pain, at times increasing to a severity of pain of 10 out of 10. The clinician noted the current symptoms of chronic pain, stiffness, loss of strength and reduced range of motion. The Veteran denied flare-ups. The Veteran reported the functional limitations of difficulty with daily activities, raising his arm, carrying items, lifting, sleeping, and getting dressed. Right arm range of motion testing showed flexion to 60 degrees, abduction to 70 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees. The clinician opined pain and fatigue would significantly limit functional ability with repeated use over time, described in terms of range of motion loss as flexion to 50 degrees, abduction to 60 degrees, external rotation to 50 degrees, and internal rotation to 50 degrees. The clinician noted the Veteran denied flare-ups. The clinician denied evidence of ankylosis. An April 2021 VA examination noted chronic baseline pain of 4 out of 10 with flare-ups to 8 out of 10. The Veteran reported flare-ups described as daily, lasting 3 to 12 hours, and limiting overhead lifting. Right arm range of motion testing showed flexion to 62 degrees, abduction to 62 degrees, internal rotation to 30 degrees, and external rotation to 30 degrees. The clinician opined pain would significantly limit functional ability with repeated use over time, described in terms of range of motion as flexion to 60 degrees and abduction to 60 degrees. The clinician opined pain would significantly limit functional ability during flare-ups, described in terms of range of motion as flexion to 50 degrees, abduction to 50 degrees, internal rotation to 25 degrees, and external rotation to 25 degrees. The clinician noted ankylosis in abduction up to 60 degrees or favorable ankylosis. The clinician opined the Veteran's disability limited the ability to lift weight overhead. A September 2021 addendum opinion, which was requested to estimate additional range of motion loss during flare-ups at prior examinations, stated estimates of range of motion during flare-ups are just estimates and such determinations are very inaccurate. The clinician stated it was impossible to estimate joint range of motion from an examination that occurred four and seven years prior. The clinician noted that he performed a detailed examination in April 2021 providing additional range of motion loss during flare-ups and with repeated use over time. The clinician opined the Veteran is quite impaired by his right shoulder condition. The Veteran is assigned a 20 percent rating for right clavicle fracture residuals prior to July 27, 2017. To warrant a higher rating under DC 5201, the evidence must show limitation of motion of the right arm midway between side and shoulder. Resolving reasonable doubt in favor of the Veteran, the Board finds evidence of limitation of motion of the right arm midway between side and shoulder. First, the Board gives probative weight to the Veteran's lay statements describing limitation of motion of the right arm to 45 degrees or midway between his side and shoulder. See May 2009 statement and August 2012 hearing testimony. Next, VA examinations prior to July 27, 2017 did not provide opinions on additional range of motion loss during flare-ups or after repeated use over time. A September 2021 VA addendum opinion stated that trying to provide estimates on additional range of motion loss for four and six years prior would be very inaccurate. As such, the Board will apply the December 2019 and April 2021 opinions on additional range of motion loss back to his claim date. The April 2021 VA examiner opined pain would additionally limit his right arm flexion and abduction to 50 degrees during flare-ups, most consistent with a 30 percent rating. The December 2019 VA examiner opined pain would additionally limit his right arm flexion to 50 degrees after repeated use over time, most consistent with a 30 percent rating. These opinions are consistent with the Veteran's descriptions of his pain and range of motion loss. See May 2009 statement and August 2012 hearing testimony. To warrant a rating in excess of 30 percent under DC 5201, the evidence must show limitation of motion of the arm to 25 degrees from his side. The preponderance of the evidence is against finding right arm limitation of motion met or approximated 25 degrees from his side. The Board gives probative weight to the April 2021 VA examiner finding pain would additionally limit right arm flexion and abduction to 50 degrees during flare-ups. The examiner considered and described additional range of motion loss during flare-ups and after repeated use over time. The Board considered lay reports of symptoms and functional loss related to his right shoulder and does not find evidence of limitation of motion of the arm approximating 25 degrees from the side. The Board considered whether any other diagnostic codes related to disabilities of the shoulder would provide for a higher disability rating. The evidence does not show, nor has the Veteran or his representative contended, intermediate ankylosis or impairment of the humerus to warrant a higher rating. The Board notes, effective February 7, 2021, VA amended DC 5201. However, the amended rating criteria for ratings in excess of 20 percent under DC 5201 are unchanged from the previously existing version of the Code. In conclusion, a 30 percent rating for right clavicle fracture residuals prior to July 27, 2017 is warranted. The preponderance of the evidence is against finding a rating in excess of 30 percent during the appeal period. 3. Entitlement to a TDIU prior to October 28, 2009 The Veteran raised the issue of TDIU during his increased rating claim for right clavicle fracture residuals. Accordingly, TDIU will be considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). An October 2015 rating decision granted entitlement to a TDIU, effective October 28, 2009. As the Veteran's increased rating claim dates back to March 28, 2008, the Board must consider entitlement to a TDIU from March 28, 2008. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board finds entitlement to a TDIU, effective March 28, 2008, is warranted. From March 28, 2008, the Veteran was service connected for bilateral hearing loss disability, rated at 40 percent; right clavicle fracture residuals, rated at 30 percent; right thumb disability, rated at 10 percent; tinnitus, rated at 10 percent; and painful scar, rated at 10 percent. From March 28, 2008, the Veteran meets the schedular criteria for entitlement to TDIU under 38 C.F.R. § 4.16(a). From March 28, 2008 to October 28, 2009, the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran has a 9th grade education. He last worked in 2006. He reported past work as a mechanic and in demolition. See March 2008 Application for Increased Compensation Based on Unemployability. A September 2008 VA examination noted he stopped working due to difficulty grasping equipment with his right hand, grabbing ladders and scaffolding, heavy lifting, and overhead lifting. At his Board hearing, the Veteran stated he had only performed heavy manual labor and did not have any experience with computers. Resolving reasonable doubt in favor of the Veteran, from March 28, 2008 to October 28, 2009, his service-connected disabilities prevented him from performing his past work, which required overhead work, heavy lifting, and handling tools. Looking to whether the Veteran could perform other substantial gainful employment, the Board finds his limited education and work history, in addition to his severe hearing loss, tinnitus, right shoulder disability, and right thumb disability, would have likely prevented the Veteran from finding or sustaining other substantial gainful employment. Accordingly, entitlement to TDIU, effective March 28, 2008, is warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.