Citation Nr: 21073187 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-19 519 DATE: December 7, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for left shoulder labral and rotator cuff tear (left shoulder disability) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's left shoulder disability has manifested with pain with limitation of motion to, at worst, flexion to 20 degrees and abduction limited to 10 degrees; there was no left shoulder ankylosis or impairment of the humerus. 2. The Veteran's service-connected left shoulder disability does not preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for service-connected left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to a 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 October 2000 to March 2001 and from December 2005 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously remanded by the Board in January 2018 and May 2020 for further development. 1. Entitlement to a disability rating in excess of 30 percent for a left shoulder disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for 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. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Musculoskeletal Disabilities Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. Further, in claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complaints of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require "objective" evidence but can be satisfied with lay and other nonmedical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). An initial higher rating than 30 percent for a left shoulder disability. The Veteran's left shoulder disability is rated under Diagnostic Code 5201. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). DC 5201 rating criteria was not amended, other than clarifying that the loss of motion included flexion or abduction and provided specific range of motion measurements for the ratings. Ratings assigned pursuant to this DC may differ depending on whether the extremity at issue is considered the major (dominant) extremity or the minor (non-dominant) extremity. The Veteran is right-handed; therefore, his left shoulder disability affects his minor extremity. Under Diagnostic Code 5201, limitation of motion to shoulder level (e.g., flexion or abduction to 90 degrees) warrants a 20 percent rating. Limitation of motion to midway between side and shoulder level (e.g., flexion or abduction to 45 degrees) warrants a 20 percent rating. Limitation of motion to 25 degrees from the side warrants a 30 percent rating. Id. A higher rating is warranted if ankylosis of the shoulder is shown. Diagnostic Code 5200. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Turning to the evidence, the Veteran underwent VA examinations during the appeal in February 2016, January 2017, January 2019, September 2020, January 2021, and July 2021, where range of motion testing revealed flexion at worst to 20 degrees and abduction to be reduced to 10 degrees at worst, even upon repetitive-use testing. During the examinations the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The Veteran reported left shoulder pain and flare ups and described them as consisting of increased pain with activity. The July 2021 VA examiner estimated that during periods of pain, weakness, fatigability, incoordination, and flare ups, the Veteran's flexion would be limited to 40 degrees and abduction would be limited to 50 degrees. During the appeal period, the examiners indicated that there was no ankylosis or ankylosis or impairment of the humerus of the left shoulder. For the following reasons, a rating higher than 30 percent for the Veteran's left shoulder disability is not warranted. A 30 percent rating under DC 5201 is the highest schedular rating for the minor extremity. Therefore, the Veteran is in receipt of the highest schedular rating for the right shoulder disability of the minor extremity under DC 5201. Despite the Veteran's limited ranges of left shoulder motion, the Board finds that even considering left shoulder pain, flare ups, and other functional factors, the Veteran did not experience actual ankylosis or the functional equivalent of ankylosis during the appeal period. Treatment records do not show greater limitation of motion than the above examination findings, nor do the Veteran's statements. Given the above, the Board finds that the criteria for a disability in excess of 30 percent for a left shoulder disability is not warranted. The Board has also considered whether the Veteran is entitled to an increased rating under any alternative diagnostic code for the shoulder. However, the evidence fails to establish ankylosis or impairment of the humerus. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202. Further, while Diagnostic Code 5203 (impairment of the clavicle or scapula) provides for a maximum rating of 20 percent, or directs rating on impairment of function of the contiguous joint, the Veteran is rated on the impairment of function and cannot receive a higher rating under Diagnostic Code 5203, nor can a separate rating be awarded without pyramiding. 38 C.F.R. §§ 4.14, 4.71a. Therefore, the Board concludes that the symptoms associated with the Veteran's left shoulder disability do not more nearly approximate the criteria for a rating higher than 30 percent at any point during the appeal and the claim must be denied. 38 C.F.R. §§ 4.3, 4.7. Entitlement to a TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran does not meet the schedular criteria for TDIU. His service-connected disabilities include a left shoulder disability rated as 30 percent disabling, a cervical strain rated as 20 percent disabling, left upper extremity radiculopathy rated as 20 percent disabling, and a left shoulder scar rated as 0 percent disabling, for a total rating of 60 percent. The Veteran does not have a single disability rated at least 60 percent or two or more disabilities where one is rated at least 40 percent for a total rating of 70 percent. If a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Id. Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Military personnel records reflect the Veteran's military occupation specialty (MOS)/rating was that of field artillery cannon crewman. In his March 2019 and December 2020 applications for unemployability he reported his left shoulder prevents him from following a substantially gainful occupation. He also stated that he had sleepless nights that resulted "in overtried days". The Veteran reported completing high school and that he last worked full-time in 2015 as a bricklayer and welder. His employer stated that he was unable to perform his job requirements due to his shoulder injury. A July 2021 VA examination states that the Veteran's left shoulder disability and radiculopathy causes difficulty pushing, pulling, and lifting for prolonged periods of time. His neck and scar were not found to impact his employability. A July 2021 VA examiner stated that the Veteran was able to perform sedentary work including but not limited to work where he exerts up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, or pull. Treatment records are not in significant conflict with findings during VA examination. Although the Board sympathizes with the Veteran's claim that he is unable to work due to his service-connected disabilities, taken as a whole, the Veteran's symptoms do not suggest he was unable to obtain and maintain employment consistent with his education and occupational background. Given the Veteran's education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board does not consider this level of impairment as one that would preclude employment. The Board considered the Veteran's lay statements that his shoulder makes it difficult to work and the Board acknowledges that the Veteran would experience some physical limitations. However, after review of the evidence of record the Board finds that the Veteran's functional limitations would not preclude employment consistent with his education and occupational background due to his left shoulder disability. To this extent, after a physical examination of the Veteran, the July 2021 VA examiner found that the Veteran would be able to exert himself up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, or pull. Additionally, the Veteran indicated that he had sleepless nights; however, the Veteran service-connected disabilities do not include a sleep disability. Based on all the evidence, the Board finds that the Veteran's service-connected left shoulder disability does not preclude him from securing and following substantially gainful employment consistent with his education and occupational experience, and thus, a referral to the Director of Compensation under 38 C.F.R. § 4.16(b) is not warranted. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.