Citation Nr: 21071214 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-03 083 DATE: November 30, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for a left humerus fracture, to include on an extraschedular basis, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's left humerus fracture was not manifested by motion limited to 25 degrees from the side. The Rating Schedule contemplates the Veteran's left shoulder symptoms, to include pain and range of motion loss. 2. The Veteran was gainfully employed during the period on appeal and evidence does not reflect that she is unable to engage in substantially gainful employment due to her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 20 percent for a left humerus fracture, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to July 2011. The Veteran appealed an April 2012 rating decision by the Agency of Original Jurisdiction (AOJ). The Veteran appealed the May 2018 Board of Veterans' Appeal (Board) decision to the Court of Appeals for Veterans Claims (Court). In February 2019, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded this issue to the Board for further proceedings consistent with the JMPR. In August 2019, February 2021, and July 2021, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A September 2020 rating decision granted an initial rating of 20 percent for the Veteran's left shoulder condition. The Board notes the Veteran filed a new claim for TDIU in November 2019 and noted her left shoulder pain. See November 2019 Veteran statement and VA Form 21-8940. Therefore, the issue of TDIU has been raised and will be addressed in this decision. Increased Rating When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Board notes that during this appeal, Department of Veterans Affairs (VA) promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the new regulations are not advantageous to the Veteran since they now reference specific range of motion (ROM) measurements that the Veteran's medical records do not demonstrate. Therefore, the Board will not address them in this decision. Under Diagnostic Code 5201, a rating of 20 percent is warranted when motion of the minor or major arm is limited to shoulder level. A 20 percent evaluation is also warranted for limitation of motion of the minor arm midway between the side and shoulder level. A 30 percent rating contemplates limitation of motion of the minor arm to 25 degrees from the side or limitation of motion of the major arm to midway between the side and shoulder level. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Veteran is right handed. See September 2021 examination report. Therefore, the rating criteria for the minor arm will be applied. The June 2011 examination report noted flexion to 100 degrees. The Veteran's April 2012 notice of disagreement (NOD) noted that she was unable to raise her arm above shoulder level without tingling, and that her limited range of motion prevents her from performing everyday activities. The August 2016 examination report noted flexion to 90 degrees. The December 2019 examination report noted flexion to 110 degrees. The March 2021 examination report noted flexion to 80 degrees. The September 2021 examination report noted flexion to 95 degrees during repeated use over time and during flare-ups. Overall, the evidence does not reflect functional impairment congruent with a higher rating for the left shoulder. The Veteran is still able to raise her left arm to at least shoulder level. Thus, the Board finds that the currently assigned 20 percent rating is appropriate, even after considering her statements and functional limitations during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran also has not been found to have, and the evidence does not demonstrate, ankylosis or impairment of the clavicle or scapula as to warrant a higher or separate rating for the right shoulder. Furthermore, although the Veteran had a left humerus fracture, she has not been noted to have loss of head, nonunion, or fibrous union of the scapulohumeral joint under Diagnostic Code 5202. As such, the preponderance of the evidence is against the claim for an evaluation greater than 20 percent for a left humerus fracture and an increased rating is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Furthermore, the left shoulder scar has not been noted by competent medical evidence to be painful/tender, unstable, deep, nonlinear. It also does not cover an area of 144 square inches or more or limit function of the left shoulder. See March and September 2021 examination reports. Although the Veteran noted her scar gets irritated when scratched, resulting in hives, and sensitivity in the cold, the evidence still does not note a painful scar and competent medical evidence does not note a residual skin condition due to scratching the scar. See April 2012 NOD. As such, a separate, compensable rating for a left shoulder scar is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. The Board additionally notes that the Veteran's representative has raised extraschedular consideration of her left shoulder symptoms. See January 2021 informal hearing presentation (IHP). To accord justice to the exceptional cases where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of the Compensation Service or his or her delegate is authorized to approve an extraschedular evaluation commensurate with the average impairment of earning capacity due exclusively to this disability. See 38 C.F.R. § 3.321(b). In Morgan v. Wilkie, the Court held that VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered. See No. 17-0098 2019 U.S. App. Vet. Claims LEXIS 779, at *12-13 (May 16, 2019). In that case, the Court stated VA had powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code. Four such tools are secondary service connection, the assignment of a higher rating where there is a question as to which of two evaluations shall be applied if the disability picture more nearly approximates the criteria for that rating, resolving reasonable doubt in favor of the Veteran, and TDIU. Id. at *9-13. In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential analysis to determine whether a case should be referred for extraschedular consideration. Step one is to determine whether the schedular rating adequately contemplates a Veteran's disability picture. If the criteria reasonably describe the Veteran's disability level and symptomatology, then her disability picture is contemplated by the Rating Schedule. The assigned schedular evaluation would, therefore, be adequate, and an extraschedular rating would not be required. If the schedular criteria do not contemplate the Veteran's level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the Veteran's disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. Based on the above evidence, the Board finds that the rating criteria reasonably describe the Veteran's service-connected left shoulder condition and its symptomatology. The Board has specifically considered the tool box described in Morgan. Importantly, the rating criteria contemplate the Veteran's key symptoms, namely range of motion loss and her functional loss, to include the range she can lift her left arm. Additionally, as noted above, the Veteran is awarded a 20 percent rating for the entire period on appeal based in part on pain and flare-ups. See May 2018 Board decision; September 2020 rating decision. As such, painful motion has been considered in assigning the current rating under the Diagnostic Code. The Veteran has mostly complained of her overall pain and limitation in motion and functionality. However, these symptoms are specifically contemplated in the Diagnostic Code and considered in assigning the higher 20 percent rating. Medical evidence has not associated other symptoms with the Veteran's left shoulder condition. The Board also notes the Veteran has already been granted service connection for left wrist carpal tunnel syndrome. The threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate. Thus, extraschedular consideration is not warranted under 38 C.F.R. § 3.321(b)(1). TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; or (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2018). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has worked full time doing administration work since 2015, but had a year off between 2017 and 2018. See November 2019 VA Form 21-8940. Evidence suggests that the Veteran currently works full time. See December 2019 examination report. The Veteran stated in November 2019 that she has daily pain, she missed many days of work due to pain, and that she is unable to do certain physical activities. The Veteran does not meet the schedular criteria for TDIU. For the entire period on appeal, the Veteran's combined rating is at 80 percent disabling. However, no single disability is rated at 40 percent disabling or more. The Board is prohibited from awarding extraschedular TDIU in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Nevertheless, as noted below, the Board finds referral of extraschedular TDIU to the Director of the Compensation Service is not warranted in this case and ultimately finds entitlement to TDIU is not warranted. After retiring from the military, the Veteran worked full-time in administrative positions from May 2015 to March 2017 and since April 2018. Although the Veteran had a year lapse of employment from 2017 to 2018, the Veteran was ultimately able to find employment and the Veteran has not argued that she was unable to find employment during that year period due to her service-connected disabilities. Furthermore, the evidence does not demonstrate that the Veteran's employment is in a protected environment or that she has been given special accomodations due to her service-connected disabilities. Although the Veteran has missed several days of work due to associated pain, she is ultimately still able to perform her job duties and has not alleged negative treatment due to her absences. As such, TDIU is not warranted from May 2015 since the Veteran has been gainfully employed. Prior to May 2015 the Veteran was not working since her retirement from the military in July 2011. However, it appears the Veteran's service-connected disabilities did not prevent gainful employment as she would eventually be able to find full-time administrative positions. The Veteran also did not argue that prior to May 2015 she was unable to work or find gainful employment. The Veteran does not provide details as to why she was not working prior to May 2015. Prior to May 2015, the Veteran was service connected for a bilateral foot condition, uterine leiomyoma, a left shoulder condition, bilateral carpal tunnel syndrome, an eye condition, and a heart valve condition. The Veteran's musculoskeletal and nervous conditions would arguably prevent her from working in physical labor positions that required heavy lifting or prolonged standing or walking. However, an administrative position as a desk job would not have required such physical activities and do not greatly impacted clerical work as typing and paperwork. The Veteran's other service-connected disabilities at the time also have not been noted to disrupt the Veteran's occupational functioning. See June 2011 examination reports. Specially, the Veteran was still noted to be able to vacuum, drive a car, cook, climb stairs, take out the trash, walk, shop, and perform gardening activities. Id. Overall, the Veteran was either gainfully employed during much of the period on appeal. However, during the periods she was not working, the evidence does not demonstrate such unemployment was due to her service-connected disabilities. All in all, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of her service-connected disabilities. Thus, the Board finds the Veteran is able to obtain or retain substantially gainful employment despite her service-connected disabilities, and TDIU referral to the Director of the Compensation Service is not warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.