Citation Nr: 21069808
Decision Date: 11/19/21	Archive Date: 11/19/21

DOCKET NO. 17-36 859
DATE: November 19, 2021

ORDER

Entitlement to a disability rating in excess of 40 percent for left shoulder degenerative joint disease (DJD) with recurrent dislocations is denied.

Entitlement to a finding of total disability based on individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran's residuals of the left shoulder DJD with dislocation are assigned a 40 percent rating, which is the maximum rating authorized under Diagnostic Code 5200, for the minor upper extremity (the Veteran's left arm in this case).

2. There is no nonunion or loss of the head of the humerus.

3. The Veteran's service-connected disabilities do not render him unable to secure and follow substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 40 percent for left shoulder degenerative joint disease with recurrent dislocations have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200, 5202.

2. The criteria for entitlement to a finding of total disability based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.15, 4.16, 4.18.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service with the U.S. Army from January 1977 to September 1978.  This case comes before the Board of Veteran's Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ).

In October 2019, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record.

In March 2021, the Board remanded this matter for additional development, which has been completed. See Stegall v. West, 11 Vet. App. 268 (1998).

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran....").

Increased Rating 

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Veteran's residuals of the left shoulder disability are rated pursuant to Diagnostic Code 5200, for ankylosis of the scapulohumeral joint; the Board has also considered Code 5202, for "other" impairment of the humerus. These Codes provide differing evaluations depending on which limb is disabled, differentiating between the major/dominant limb and the minor/nondominant limb. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant; if a Veteran is ambidextrous, the more severely injured limb is considered dominant. 38 C.F.R. § 4.69.  

Here, examiners have consistently identified the Veteran as right handed. In a September 2021 statement, the Veteran alleged that his left arm should be considered dominant, as he had always used the left arm playing sports when younger.  He also stated he wrote with the right hand. The Board finds the Veteran to be right handed, not left handed or ambidextrous. When asked by doctors which hand was dominant, he reported the right.  Further, the activities he describes as relying on the left hand- sports- ae not occupational. The rating schedule is designed to compensate the "average impairment in earning capacity" due to disability, and it is writing, not playing youth sports, which represent a work-related activity.   As the Veteran in the case at hand is right-handed, his service-connected residuals of the left shoulder dislocation affect his minor extremity and will be evaluated accordingly.

The Veteran also argued in the September 2021 statement that he had muscle injuries that was documented in his April 2021 muscle injury VA examination. The Veteran argued that he should also be rated for his muscle injuries. However, as the Veteran is already rated for functional unfavorable ankylosis of the shoulder joint, at the maximum schedular evaluation, a separate rating for muscle injury is prohibited.  38 C.F.R. § 4.55(c).

Under Code 5200, a 40 percent rating is warranted where there is unfavorable ankylosis (minor extremity) of scapulohumeral articulation with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Code 5200. Under this Diagnostic Code, a 40 percent rating is the maximum rating for the minor extremity.

Alternatively, under Code 5202 nonunion of the humerus (false flail joint) warrants a 50 percent disability rating for the minor extremity. Loss of the head of the humerus (flail shoulder) warrants a 70 percent disability rating for the minor extremity. 38 C.F.R. § 4.71a, Code 5202.  This is the only potentially applicable Code to provide an evaluation in excess of 40 percent.

Standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71 Plate I

In June 2012, the Veteran was afforded a VA shoulder examination. The Veteran was diagnosed with left shoulder post traumatic arthritis. He reported that he had constant pain in his left shoulder, which was rated a 7 out of 10. He indicated that he was limited in performing activities. The Veteran reported that he was not able to lift his arm or do overhead type activities. He indicated that his shoulder flared up once a week and he did not know what caused it. His flare-ups lasted 5 minutes and improved with pantoprazole. The Veteran was right hand dominant.  His initial range of motion (ROM) for flexion ended at 50 degrees and abduction ended at 45 degrees. The Veteran was able to do repetitive use testing. The Veteran had less movement than normal, weakened movement, and pain on movement. He did not have localize tenderness or pain on palpation of joints/soft tissue/ biceps tendon of either shoulder. He had left shoulder guarding. He had an abnormal muscle strength testing. The Veteran had ankylosis in his left shoulder and his abduction was limited between 60 and 25 degrees. He was unable to perform the Hawkins' impingement test, lift-off subscapularis test, and empty-can test. He had a negative external rotation/Infraspinatus strength test. He had a positive cross-body adduction test. The Veteran had a history of recurrent dislocation of the scapulohumeral joint. He did not have an AC joint condition or impairment of the clavicle or scapula. He had residuals signs and/or symptoms due to shoulder surgery described as chronic pain, weakness, and decreased ROM. The Veteran had a scar related to his left shoulder condition that was not painful and/or unstable. The examiner indicated that the Veteran's left shoulder condition impacted his ability to work. The examiner remarked that the Veteran had been unemployed since December 2008 as an electrician. The Veteran received social security disability secondary to his recent heart attack and multiple joint pain including neck, shoulder, and back. The examiner indicated that the Veteran had significant decreased ROM, moderate weakness, and mild to moderate verbalized pain during the physical examination. There was significant guarding and inability to perform some physical examination secondary to pain. There was no additional loss of motion or function after 3 repetitions. The examiner concluded that it was conceivable that the Veteran's left shoulder pain could further limit function particularly after strenuous and repetitive lifting and overhead activities. However, it was feasible that the Veteran was physically capable of performing light duty/none-lifting /sedentary type employment activities.

A December 2012 private treatment note from S Orthopedics and Spine note documented that he was seen for left shoulder complaints. His left shoulder ROM was limited by pain. His flexion ended at 40 degrees and internal rotation ended at 80 degrees.

A January 2013 S Orthopedics and Spine note documented he complained of pain that was aching, sharp, and throbbing in his left shoulder. His pain was aggravated by lifting, movement, and pushing.  ROM demonstrated flexion ended at 40 degrees, abduction ended at 40 degrees, and adduction ended at 40 degrees.

A January 2013 VA treatment note documented his complaints of left shoulder pain. He had had a negative drop arm test. His external rotation ended at 30 degrees, internal rotation ended at 30 degrees with pain, and forward flexion ended at 90 degrees with complaints of discomfort.

In October 2013, the Veteran was afforded a VA shoulder examination. The Veteran was diagnosed with left shoulder arthritis. He reported that he had significant shoulder pain and limited ROM. The Veteran was right hand dominant. He indicated that he had flare-ups that were worse with activity. His initial ROM for flexion ended at 5 degrees and abduction ended at 5 degrees. The Veteran did not have additional limitation in ROM of the shoulder following repetitive-use testing. He had less movement than normal, weakened movement, and pain on movement. He did not have localized tenderness or pain on palpation of joints/soft tissue/biceps tendon. He did not have guarding of the shoulder. He had an abnormal muscle strength testing. He did not have ankylosis of the shoulder. He was unable to perform the Hawkins' impingement test, empty-can test, external rotation/infraspinatus strength test, crank apprehension and relocation test, and lift-off subscapularis test. The Veteran had a history of mechanical symptoms such clicking or catching. He did not have a history of recurrent relocation of the scapulohumeral joint. He did not have an AC joint condition or an impairment of the clavicle or scapula. There was no tenderness on palpation of the AC joint. The Veteran did not have any residual signs and/or symptoms due to arthroscopic or other shoulder surgery. The examiner opined that the Veteran's left shoulder condition impacted his ability to work. The examiner noted that the Veteran was unable to use his left shoulder.

An August 2014 S Orthopedics and Spine note documented he had a moderate to severe level of pain in his shoulder. ROM for flexion ended at 20 degrees, abduction ended at 20 degrees, and adduction ended at 40 degrees.

In April 2014, the Veteran was afforded a VA shoulder examination. The Veteran was diagnosed with rotator cuff tear and DJD with recurrent dislocation. The Veteran was right hand dominant. The Veteran had difficult with recurrent dislocations. He reported that he had throbbing and sharp pain in his shoulder. He indicated that he was unable to lift any weight. He stated that he could not reach over his head, open doors, or steer a steering wheel. He was prescribed Oxycodone for temporary relief. The Veteran reported that he really could not use his arm. He explained that he could not hold a glass of water. The examiner noted that the Veteran was in too much pain to participate in ROM assessment. The examiner was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limit functional ability with flare ups. The examiner explained that the Veteran did not report any flare-ups. The Veteran did not have ankylosis of the shoulder. He had a history of recurrent dislocation, with infrequent episodes. There was tenderness on palpation of the AC joint. The Veteran did not have AC joint or any other impairment of the clavicle or scapula. He was unable to perform cross-body adduction test. The examiner opined that the Veteran's left shoulder condition impacted his ability to work. He explained that the Veteran had difficulty performing a job requiring pushing, pulling, lifting, and reaching overhead due to rotator cuff tear and arthritis.

In October 2019, the Veteran testified that he did not use his left shoulder because of pain. He stated that he had constant pain in his shoulder even when he was not moving. He testified that the pain was so bad that it brought tears to his eyes. His pain was so severe that it woke him up at night. The Veteran indicated that he had pain on movement and pain associated with non-movement.

In January 2020, the Veteran was afforded a VA shoulder examination. The Veteran was diagnosed with rotator cuff tear and glenohumeral joint osteoarthritis. The Veteran was right hand dominant. The Veteran indicated that he could not push, pull, reach overhead, or attempt to lift any objects without pain increasing. The Veteran took hydrocodone and Tylenol for his condition. He also had Cosentyx injections monthly for his condition. He reported that his condition limited his household chores. He noted that he had constant help from his wife to clothe himself, clean up, and drive. He reported that his flare-ups occurred weekly and were moderate to severe. His flare-ups lasted at least for 10 minutes and were at random. He had a functional loss described as difficulty with heavy lifting, overhead reaching, and pushing/pulling objects. His initial ROM was 30 degrees for flexion, 20 degrees for abduction, 5 degrees for external rotation, and 5 degrees for internal rotation. ROM itself contributed to a functional loss. Pain was noted on examination and caused a functional loss. There was evidence of pain with weight bearing. There was a moderate severity of anterior/lateral joint pain that was related to his DJD. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or ROM. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain and lack of endurance significantly limited the functional ability with repeated use over a period of time. Described in terms of ROM was 30 degrees for flexion, 20 degrees for abduction, 5 degrees for external rotation, and 5 degrees for internal rotation. Pain and lack of endurance significantly limited the functional ability with flare-ups. Described in terms of ROM was 30 degrees for flexion, 20 degrees for abduction, 0 degrees for external rotation, and 0 degrees for internal rotation. There were additional contributing factors described as less movement that normal. He had a normal muscle strength testing. He did not have muscle atrophy. He did not have ankylosis. There was a rotator cuff condition suspected. The Veteran was unable to perform the Hawkin's impingement test, empty can test, external rotation/ infraspinatus strength test, and lift-off subscapularis test. The Veteran had a history of recurrent dislocation of the glenohumeral joint. He had some guarding of all arm movement in the left arm. He was unable to perform the crank apprehension and relocation test. There was no clavicle, scapula, acromioclavicular joint or sternoclavicular joint condition suspected. He did not have conditions or impairments of the humerus. There was objective evidence of pain on passive ROM testing and non-weight bearing testing. The Veteran had a scar related to his condition. His scar was not painful, unstable, or have a total area equal to or greater than 39 square CM. The Veteran did not use an assistive device for his condition. The examiner opined that the Veteran's shoulder condition impacted his ability to perform any type of occupational task. The examiner noted that the Veteran would have difficulty with task requiring repetitive heavy lifting, overhead reaching, pushing, and pulling. 

In April 2021, the Veteran was afforded a VA muscle injury examination. The Veteran was diagnosed with a left shoulder muscle injury. The Veteran reported that he had left shoulder pain and limited Rom. The Veteran had an injury to muscle group I, muscle group II, and muscle group IV. The Veteran did not have any associated scars with a muscle injury. The Veteran did not have muscle injuries that affected muscle substance or function. He had signs and/or symptoms attributable to muscle injuries described as loss of power. He had less than normal strength in his left shoulder abduction, left elbow extension, and left wrist flexion. He had no movement against gravity in left elbow flexion. He did not have muscle atrophy. The Veteran wore a sling constantly for his condition. The examiner opined that the Veteran's muscle condition did not impact his ability to work, such as resulting in inability to keep up with work requirements due to muscle injuries.

In April 2021, the Veteran was afforded a VA shoulder examination. The Veteran was diagnosed with ankylosis of glenohumeral articulations with an onset date of 2011. The Veteran's current symptoms was pain, sharp pain, needle-like pain, and not being able to move his shoulder. The Veteran was right hand dominant.  He reported that he kept his shoulder in a sling. The Veteran currently treated his condition with an injection twice a month (Codeine, and Hydrocodone). He did not report any flare-ups of the left shoulder. He did not report any functional loss/impairment of the left shoulder. Initial ROM reflected 0 degrees for flexion, abduction, internal rotation, and external rotation. Pain was noted on flexion, abduction, and internal rotation. Passive ROM was the same as active ROM. There was evidence of pain on active motion, passive motion, on rest/non-movement, and caused functional loss. The examiner commented that the Veteran had all functional loss, and his left shoulder was frozen. His left elbow had good ROM and his fingers had good movement with no contraction. There was no objective evidence of crepitus. There was severe pain when the examiner palpated the 9" scar or anywhere around the scar. The Veteran's left shoulder pain was rated 10/10. The Veteran was not able to perform repetitive-use testing with at least 3 repetitions. The examiner explained that the unrelated condition did not allow. Fatigability, lack of endurance, pain, weakness, and incoordination significantly limited functional ability with repeated use over time. Estimated ROM in degrees for the joint was 0 degrees for flexion, abduction internal rotation, and external rotation. The procured evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with flare-ups. The examiner noted that the Veteran denied having flare-ups. He had additional factors contributing to his disability such as less movement than normal and atrophy of disuse. The examiner noted that the Veteran had a frozen shoulder. The Veteran was in a sling to LUE and the Veteran's shoulder was non-functional. The Veteran had muscle atrophy due to his claimed condition. The examiner was unable to measure his muscle atrophy due to frozen shoulder. The Veteran had ankylosis. His ankylosis was in abduction at 25 degrees or less from side (unfavorable ankylosis). There was 2 degrees of ankylosis in abduction. There was involvement of muscle group I and II for his ankylosed condition. The examiner was unable to test for rotator cuff conditions. The examiner noted that the Veteran reported he had a rotator cuff tear in his left shoulder by an Orthopedic surgeon. The examiner was not able to do any shoulder instability testing. He had frequent episodes and guarding of all movements that affected his ROM. He did not have loss of head, nonunion, or fibrous union of the humerus. In 2011, the Veteran had Putti-Platt procedure to his left shoulder. The residuals were decreased of ROM, an increase of pain, frozen shoulder, and inability to move. The examiner noted that the Veteran was told by Dr. KN and an Orthopedic surgeon in 2019 that he had a rotator cuff tear in his left shoulder and needed a total left shoulder replacement. The Veteran used a sling to LUE constantly for his condition. Due to the Veteran's shoulder condition, there was not a functional impairment of an extremity such that no effective functions remain other than that which would be equally well-served by an amputation with prosthesis. The examiner opined that the Veteran's shoulder condition impacted his ability to perform any type of occupational task. The examiner explained that the Veteran did not have the ability to use or move his left shoulder. He noted that the Veteran would not be able to do a physically demanding job. The examiner noted that the Veteran was currently a pastor on the radio. 

In light of the above, the Board finds that during the entire appeal period, the Veteran's left shoulder disability is productive of the functional equivalent of unfavorable ankylosis. Accordingly, a 40 percent rating is warranted. 

The Veteran has not raised any extraordinary circumstance or symptomatology that is not compensated under the criteria for his residuals of the left shoulder under Code 5200, or under one of the other Codes now applied to ensure all manifestations of the left shoulder disability have been compensated. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, an even higher rating is not warranted for the left shoulder disability.

As noted, under Diagnostic Code 5200, the maximum rating for a minor upper extremity (the Veteran's left arm in this case) is 40 percent (which is currently assigned) for unfavorable ankylosis of glenohumeral articulations. Also, the only other Diagnostic Code predicated on limitation of motion for which a higher rating is potentially assignable is Diagnostic Code 5202. Under Diagnostic Code 5202, for a 50 percent rating for a minor upper extremity, the Veteran would need to present with nonunion of the humerus (false flail joint), and he does not. Further, the competent medical evidence does not establish the functional equivalent of impairment of the humerus required to warrant a higher evaluation. The Board is cognizant that the Veteran has experienced functional impairment and pain due to his left shoulder disability. However, because the 40 percent evaluation is the maximum for impairment (ankylosis) of the minor shoulder joint under Diagnostic Codes 5200, further DeLuca consideration is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Furthermore, the competent medical evidence does not establish the functional equivalent of impairment of the humerus required to warrant a higher evaluation.

Thus, in this case, a 40 percent, but no higher rating is warranted for the left shoulder disability for the entire appeal period.

The Board has additionally considered whether special monthly compensation (SMC) based on loss of use of the limb is warranted, but as the Veteran retains use of the hand and elbow, he would not be equally well served by amputation of the limb at shoulder level.  38 C.F.R. § 4.63.  SMC entitlement is not shown.  See Akles v. Derwinski, 1 Vet. App 118 (1991).

TDIU

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 as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16.

Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Marginal employment or employment in a protected environment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a).

Basic eligibility for TDIU is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent, but even if these percentage thresholds are not met, it is VA policy that an unemployable Veteran be rated totally disabled. Such Veterans must first be referred to the Director, Compensation and Pension Service, for consideration of TDIU prior to adjudication of such by the Board. 38 C.F.R. § 4.16(a) and (b). 

Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16.

The Veteran's service-connected disabilities include left shoulder DJD with recurrent dislocations rated as 40 percent disabling; painful scar left shoulder rated 10 percent disabling; and scar left upper extremity rated as noncompensable (zero percent). His combined rating is 50 percent, and may be considered a "single disability" under 38 C.F.R. § 4.16(a).  He does not meet the percentage requirements for TDIU on a schedular basis.

The Board must now consider whether referral for TDIU on an extraschedular basis is warranted. The Board finds that referral is not appropriate. The most probative evidence does not reflect that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.

On a May 2012 VA 21-8940, the Veteran indicated that his left shoulder condition, back condition, and neck condition prevented him for securing and following gainful occupation. He indicated that December 2008 was the dated that his disabilities affected his full-time employment and the last he worked full-time. He wrote that he last worked as an electrician. The Veteran indicated that he had 2 years of a college education.  

A March 2011 clinic note documented that the Veteran was seen for complaints of back pain, bilateral knee pain, leg pain, and foot pain. The Veteran inquired if he was capable of working. The examiner indicated that he did not feel that the Veteran was capable of any meaningful employment.

On February 2012 statement, the Veteran wrote that he had a letter for Social Security Administration (SSA) indicating that he was disabled and unemployable. The February 2012 SSA notice of award indicated that benefits were awarded based on primary disorders of the back to include discogenic and degenerative, ankylosing spondylitis with secondary disorder of psoriasis and similar disorder with psoriatic arthritis.

On June 2012 shoulder VA examination, the examiner remarked that the Veteran had been unemployed since December 2008 as an electrician. The Veteran received social security disability secondary to his recent heart attack and multiple joint pain including neck, shoulder, and back. The examiner indicated that the Veteran had significant decreased ROM, moderate weakness, and mild to moderate verbalized pain during the physical examination. The examiner concluded that it was conceivable that the Veteran's left shoulder pain could further limit function particularly after strenuous and repetitive lifting and overhead activities. However, it was feasible that the Veteran was physically capable of performing light duty/none-lifting /sedentary type employment activities.

In June 2012, the Veteran had a VA general medical examination. The Veteran had a medical history of history of scars, sleep apnea, ischemic heart disease, esophageal disorders, male reproductive organ condition, back condition, neck condition, and shoulder/arm condition. The Veteran previously worked as an electrician and had to quit working in September 2008 due to his back and neck condition. The Veteran' lower back and neck pain lead to his inability to climb a ladder and prolonged standing, walking, or sitting.

In October 2013, the Veteran was afforded a VA shoulder examination. The examiner opined that the Veteran's left shoulder impacted his ability to work. The examiner noted that he was not able to use his left shoulder. 

An April 2017 VA shoulder examination documented that he had throbbing and sharp pain in his shoulder. He indicated that he was unable to lift any weight. He could not reach over his head, open doors, or steer a steering wheel. The examiner opined that the Veteran's left shoulder condition impacted his ability to work. He explained that the Veteran had difficulty performing a job requiring pushing, pulling, lifting, and reaching overhead due to rotator cuff tear and arthritis.

In October 2019, he testified that his left shoulder impacted his ability to work. He stated that he had an associate degree in law enforcement /criminal justice.  The Veteran indicated that he did some light bookkeeping kind of work but that was over 20 to 30 years ago. He indicated that his medication caused him to have trouble concentrating.  

In January 2020, the Veteran was afforded a VA examination. The Veteran reported that he had symptoms of sharp, throbbing, aching, and burning pain. The Veteran indicated that he could not push, pull, reach overhead, or attempt to lift any objects without pain increasing. The examiner opined that the Veteran's shoulder condition impacted his ability to perform any type of occupational task. The examiner noted that the Veteran would have difficulty with task requiring repetitive heavy lifting, overhead reaching, pushing, and pulling.

On April 2021 scar VA examination documented that his scar was tender to touch. The Veteran reported that he was unable to touch his scar. The examiner noted that he was able to palpate around the scar without voiced complaints. The Veteran's scar was painful even before he touched it. The examiner opined that the Veteran's scar did not impact his ability to work. The examiner commented that the scar itself did not cause any functional impairment. However, the Veteran reported severe pain if anyone including himself even lightly touched his scar.

On April 2021 VA shoulder examination documented that he had symptoms of pain, sharp pain, needle-like pain, and not being able to move his shoulder. The examination showed that his left elbow had good ROM and his fingers had good movement with no contraction. The examiner opined that the Veteran's shoulder condition impacted his ability to perform any type of occupational task. The examiner explained that the Veteran did not have the ability to use or move his left shoulder. He noted that the Veteran would not be able to do a physically demanding job. The examiner noted that the Veteran was currently a pastor on the radio. 

In consideration of the evidence outlined above concerning the Veteran's left shoulder disability and the lay evidence of record, the Board finds that the Veteran is not entitled to TDIU and does not merit referral for extraschedular consideration. While the Veteran undoubtedly has functional impairment and loss due to his left shoulder including reduced range of motion, limitations on heavy lifting, overhead reaching, pushing, and pulling, his physical disabilities do not prevent him from securing or following a substantially gainful occupation. The Veteran retains the physical ability to perform occupational tasks in an office-type environment and has demonstrated the ability to do so when working as a pastor on the radio. Although the Veteran is not able to move his left shoulder, the record reflects that it does not interfere with him doing house chores he already does or working in typical office task. The Veteran's left elbow has good ROM, and his fingers have  good movement with no contraction. Just because the Veteran could no longer work as an electrician or seek a demanding physical job, it does not follow that he would be unable to secure or follow a substantially gainful occupation that involved non-physical work. He could supervise or direct or work primarily at a desk location. Further, the Veteran has an Associate degree in law enforcement/ criminal justice. The Veteran has submitted numerous letters showing that he is able to write and perform an office duty type job. The record suggest that the Veteran can secure and follow substantially gainful employment. As noted in the April 2021 VA examination the Veteran is a pastor on the radio. 

The Board notes that the Veteran also argues that nonservice-connected back condition, and neck condition prevented him for securing and following gainful occupation. As discussed above, the Board is not able to consider his nonservice-connected neck and back condition in determining entitlement to TDIU.

The Board notes that the Veteran is in receipt of Social Security disability benefits, but that this determination included consideration of non-service-connected disabilities, such as disorders of the back and neck. Further, the VA is not bound by determinations made by the Social Security Administration. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).

The Veteran has not been shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. A preponderance of the evidence is against the claim; extraschedular referral is not warranted, and the Veteran's claim for TDIU is denied.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Baxter

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.