Citation Nr: 21074140 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-55 657 DATE: December 14, 2021 ORDER Entitlement to a compensable rating under Diagnostic Code 7802 for a superficial left shoulder scar is denied. Entitlement to a disability rating higher than 10 percent under Diagnostic Code 7804 for a painful left shoulder scar is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a rating in excess of 40 percent for service-connected left shoulder reconstruction, status post recurrent dislocation (left shoulder disability) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The evidence of record establishes that the Veteran's one shoulder scar associated with his left shoulder reconstruction measures 1 cm. x 0.5 cm. 2. The evidence of record establishes that the Veteran's one shoulder scar associated with his left shoulder reconstruction is painful. 3. The Veteran's left ear hearing loss was no worse than Level I, and right ear hearing loss was no worse than Level I for the period under consideration. 4. The Veteran's left shoulder disability has been manifested by recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for a superficial non-linear scar of the left upper extremity associated with left shoulder reconstruction have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7802. 2. The criteria for a rating higher than 10 percent for a painful scar due to left shoulder reconstruction have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. 3. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. 4. The criteria for entitlement to a rating in excess of 40 percent for left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5203-5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1984 to January 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in March 2021, at which time they were remanded for additional development. The issue of TDIU was also remanded as an intertwined issue with the increased rating claims. In October 2021, the RO granted service connection and a 10 percent disability rating for a painful scar under Diagnostic Code 7804, essentially creating service connection under two distinct diagnostic codes for the same scar. The Veteran is now service connected under DC 7802 (noncompensable rating) and DC 7804 (10 percent rating) for his left shoulder scar. The Veteran testified before the undersigned Veterans Law Judge during a March 2021 virtual hearing. A copy of the transcript has been associated with the file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 1. Entitlement to a compensable rating under Diagnostic Code 7802 for left shoulder scar associated with reconstruction 2. Entitlement to a disability rating higher than 10 percent under Diagnostic Code 7804 for painful residual left shoulder scar associated with reconstruction By way of background, the Veteran was originally assigned a noncompensable rating for his left shoulder scar, pursuant to DC 7802, effective July 8, 2015. In an October 2021 rating decision, a separate 10 percent disability rating was assigned for the painful scar, effective June 16, 2021. See Diagnostic Code 7804, Note (3). Therefore, the Veteran's scar of the left shoulder is rated as noncompensable under DC 7802 and 10 percent disabling under DC 7804. Scars are rated under 38 C.F.R. § 4.118. The diagnostic criteria instruct that scars (including linear scars) and other effects of scars are rated as burn scar(s) of the head, face, or neck (DC 7800); scar(s) not of the head, face, or neck, that are deep and nonlinear (DC 7801); scar(s) not of the head, face, or neck, that are superficial and nonlinear (DC 7802); or, unstable or painful scars (DC 7804), depending upon the predominant disability. Alternatively, disabling effects not considered under ratings for scars are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Regulations regarding skin disabilities were amended, effective August 13, 2018. The amendments, in pertinent part, amended DCs 7801 and 7802. Claims pending prior to the effective date are to be considered under both the old and new rating criteria, and whichever criteria are more favorable to the Veteran will be applied. Diagnostic Code (DC) 7801 is not applicable as the Veteran's scar has not been shown to be associated with underlying soft tissue damage. Prior to August 13, 2018, DC 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. The Veteran's left shoulder scar, measured during the August 2021 VA examination, was 1 cm. x 0.5 cm. This does not satisfy a compensable rating under DC 7802. Under 7804, one or two scars that are unstable or painful warrant a 10 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See Id., Note 1. If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. See Id., Note 2. Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. See Id., Note 3. During the Veteran's August 2021 VA examination, only (1) painful scar was documented. As such, this does not satisfy a higher rating than 10 percent under DC 7804. DC 7805 provides that other scars (including linear scars), not otherwise rated under DCs 7800-7804, in addition to the other effects of scars which are otherwise rated under DCs 7800-7804, are also to be rated based on any disabling effects not provided for by DCs 7800-7804. This includes, where applicable, DCs pertaining to limitation of function. 38 C.F.R. § 4.118. However, in the present case, the evidence of record does not support the finding that the Veteran's scar manifests with disabling effects compensable under another diagnostic code that has not yet been considered. The pain associated with the (1) scar has been considered under DC 7804 and no other manifestations of the scar have been reported. DC 7800 is not applicable as the Veteran's scar is not of the head, face, or neck. Based on the foregoing, the Board finds that the preponderance of the evidence is against a compensable rating under DC 7802 for scar associated with left shoulder reconstruction. Additionally, the preponderance of the evidence is against a rating higher than 10 percent for residual left shoulder painful scar associated with reconstruction under DC 7804. Consequently, the benefit of the doubt is not applicable in such regard, and the Veteran's claim for a higher rating under DC 7802 or 7804 is otherwise denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a compensable disability rating for bilateral hearing loss The Veteran seeks a compensable disability rating for his bilateral hearing loss, which is rated noncompensable under 38 C.F.R. § 4.86, Diagnostic Code 6100. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100, Table VI. In order to establish entitlement to an increased rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. A review of the record shows the Veteran was most recently afforded an audiological examination in June 2021. Pure-tone thresholds, in decibels, were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 25 dB 20 dB 25 dB 25 dB 23.75 dB Left Ear 20 dB 20 dB 25 dB 25 dB 22.50 dB Maryland CNC speech recognition scores were 98 percent in the right ear and 96 percent in the left ear. Utilizing Table VI, the combination of the 23.75 dB pure-tone threshold average and the 98 percent speech discrimination for the right ear results in the designation of a Roman numeral I. The combination of the 22.50 dB pure-tone threshold average and the 96 percent speech discrimination for the left ear results in the designation of a Roman numeral I. When the Roman numerals I and I are applied to Table VII, the resulting percentage evaluation is noncompensable. Additionally, the examiner is listed as an audiologist, as required for rating purposes. See 38 C.F.R. § 4.85. As such, the audiogram is adequate for VA purposes and holds probative value. Id. Furthermore, the examination did not reveal any exceptional patterns of hearing impairment as defined in 38 C.F.R. § 4.86. Therefore, Table VIA is not for application. In addition to the June 2021 hearing examination, the Veteran was also provided a VA Hearing examination in October 2015. Pure-tone thresholds, in decibels, were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 25 dB 25 dB 30 dB 35 dB 28.75 dB Left Ear 30 dB 35 dB 40 dB 50 dB 38.75 dB Maryland CNC speech recognition scores were 94 percent in the right ear and 94 percent in the left ear. Utilizing Table VI, the combination of the 28.75 dB pure-tone threshold average and the 94 percent speech discrimination for the right ear results in the designation of a Roman numeral I. The combination of the 38.75 dB pure-tone threshold average and the 94 percent speech discrimination for the left ear results in the designation of a Roman numeral I. When the Roman numerals I and I are applied to Table VII, the resulting percentage evaluation is noncompensable. Moreover, and specifically in respect to hearing loss, an audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this case, the June 2021 VA examiner indicated that the Veteran reported he has to increase the volume on the TV and has difficulty hearing conversations. The Board observes that these difficulties are encompassed in the disability rating table. The Board has considered and weighed the lay statements submitted by the Veteran and his inability to hear well. He is competent to describe his hearing loss. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, his description of his service-connected disability must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. In this regard, the Board emphasizes that ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the Board has based its determination on the results of the audiology studies of record. Here, mechanical application of the rating schedule to the Veteran's audiometric findings does not establish entitlement to a compensable evaluation for hearing loss. Accordingly, as the preponderance of the evidence does not show worse than Level I hearing acuity in the right ear and worse than Level I acuity in the left ear throughout the period on appeal, entitlement to a compensable rating for hearing loss is not warranted. As such, the benefit of the doubt doctrine is not applicable and a compensable rating for hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to a rating in excess of 40 percent for left shoulder disability Here, the Veteran contends that his left shoulder reconstruction, status post recurrent dislocation (left shoulder disability) warrants a higher rating. The Veteran's left shoulder disability is evaluated pursuant to 38 C.F.R. § 4.71a, DCs 5203-5202. The use of a hyphenated Diagnostic Code indicates the rating is based on a residual condition. 38 C.F.R. § 4.27. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (DC 5200), limitation of motion of the arm (DC 5201), other impairment of the humerus (DC 5202), or impairment of the clavicle or scapula (DC 5203). For rating purposes, under Diagnostic Codes 5200 through 5203, a distinction is made between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. The Board notes that the Veteran's left shoulder has been shown to be his minor or non-dominant extremity for purposes of evaluation. See VA examination, June 2021. The Board notes that during the pendency of the Veteran's appeal, VA amended the criteria for rating musculoskeletal disabilities effective February 7, 2021. Unless otherwise indicated, in cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. If an increased rating is warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). As of February 7, 2021, the criteria for DCs 5201 and 5202 were amended. The Board notes that changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5201 were not to the rating schedule itself, but added clarifying range of motion limitations in specific degrees. Pursuant to DC 5201, a 20 percent disability rating is warranted for limitation of motion of the minor arm at shoulder if it is limited to shoulder level or midway between the side and shoulder level. A maximum 30 percent rating is warranted if motion is limited to 25 degrees from the side. See 38 C.F.R. § 4.71a, DC 5201. DC 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). The revised VA regulations, effective February 7, 2021, clarify that limitation of motion of the arm under DC 5201 includes either flexion or abduction. The revised regulations also clarify that "shoulder level" equates to flexion and/or abduction limited to 90 degrees, "midway between side and shoulder level" equates to flexion and/or abduction limited to 45 degrees, and "to 25 degrees from side" equates to flexion and/or abduction limited to 25 degrees from side. For reference, 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. DC 5202 addresses impairment of the humerus. Under DC 5202, malunion of the minor humerus with either a moderate or a marked deformity warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5202. A 20 percent evaluation is also warranted for recurrent dislocation of the minor humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, and also for frequent episodes and guarding of all arm movements. Id. Impairment of the minor humerus is rated at 40 percent if there is fibrous union, 50 percent if there is nonunion or false flail joint, and 70 percent if there is loss of head (flail shoulder). Id. After February 7, 2021, a 20 percent disability is warranted for the minor shoulder with recurrent dislocation of a scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees). DC 5203 addresses impairment of the clavicle or scapula. The maximum rating under DC 5203 is 20 percent for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. DC 5203 provides that the shoulder disability may alternatively be rated on impairment of function of the contiguous joint. Turning to the evidence of record, a higher rating under DC 5202 is not warranted, as there was no evidence of nonunion or false flail joint or loss of head. See VA examination, June 2021. Additionally, under DC 5203, there is no evidence of nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. DC 5200 is not applicable because there is no evidence of ankylosis. However, the Board notes there is evidence of limitation of motion of the Veteran's left arm. As such, a separate increased disability rating under DC 5201 must be considered. In this regard, the Veteran was provided a VA Shoulders examination in October 2015. The Veteran reported daily shoulder pain as well as a feeling of instability. He also indicated it was hard to lift his left arm, especially overhead. Initial range of motion testing of the left shoulder flexion was 0 to 90 degrees, abduction 0 to 90 degrees, external rotation 0 to 55 degrees, and internal rotation 0 to 50 degrees. The March 2021 Board decision found this examination to be inadequate, as it did not meet updated examination requirements. However, his contentions of pain and an inability to raise his left arm overhead are relevant to his increased rating claim. A private orthopedic record from November 2015 noted the Veteran was seen for left shoulder pain. The examiner noted multiple dislocations over the past 20-30 years, which the Veteran related to service. He reported having grinding, popping, pain, decreased motion, difficulty sleeping, and overall usage of the arm that has worsened over the past few years. Upon examination, his left shoulder was noted to have decreased motion, grinding, and crepitus. Slight positive apprehension of the left shoulder was noted. X-rays of the left shoulder showed significant osteoarthritis. Arthritis with instability of the left shoulder was assessed. A January 2018 private treatment record noted the Veteran was seen for left rhomboid pain. Moderate cervical guarding and extension reproduces left rhomboid pain. Full left shoulder motion was noted, that exacerbates mid scapular pain. Global left upper extremity weakness was noted. The Veteran was provided a left rhomboid trigger point injection of Lidocaine and Kenalog. A March 2018 private treatment record noted the Veteran was seen for numbness and weakness in the left arm. The Veteran related these symptoms to his injection in January 2018. He noted only mild left arm pain. Upon examination, good left shoulder motion was noted. Consents for long-term opioid therapy for pain of the left shoulder were noted in June 2018 and October 2019. An October 2018 primary care note reported the Veteran had little use of the left arm and reported only being able to lift 5 pounds with his right arm. An October 2019 treatment record recorded the Veteran's left shoulder pain at a 5 out of 10. During his March 2021 virtual Board hearing, the Veteran testified to experiencing chronic pain in his left arm and shoulder that has gotten worse over the past few years. See Hearing Transcript, Page 5. He further contended that he experiences daily flare-ups. He noted a 5-pound limitation for lifting with his left arm/shoulder. He was provided his most recent VA examination in June 2021. A 1984 diagnosis of left glenohumeral joint dislocation/recurrent dislocation was noted. The Veteran self-reported daily flare-ups and severe pain that radiates down his arm to his elbow and wrist. He reported an increase in his left shoulder pain with radiculopathy and instability, that has gotten progressively worse since 2015. He noted he was afraid to lift his left arm for fear of dislocation/subluxation. The Veteran described his daily flare-ups as moderate to severe, and last 4-8 hours. They are precipitated by movement of arm, pronation, supination, raising arm, or sleeping on it. On examination, the Veteran's active range of motion (ROM) flexion was 0 to 90 degrees, abduction 0 to 45 degrees, and external/internal rotation to 45 degrees. There was objective evidence of pain on all movements that causes functional loss. Passive ROM results were the same as active ROM. There was objective evidence of localized tenderness or pain on palpitation of the joint and objective evidence of crepitus. No malunion of the humerus (false fail shoulder) or loss of head (flail shoulder) were documented. No clavicle, scapula, acromioclavicular (AC) joint, sternoclavicular joint conditions were noted. Frequent episodes of guarding of all arm movements were noted, that affect range of motion. A treatment record from August 2021 noted the Veteran reported chronic left shoulder pain that is aggravated by lifting and twisting. Pain is alleviated by pain medications. Upon examination, pain was noted on left shoulder motion and relative weakness to grip in the left hand. Mild muscle wasting in the left forearm was reported, with tenderness below the lateral epicondyle. Though there is evidence of the Veteran limiting the movement of his left shoulder due to pain, a separate rating cannot be awarded. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board finds that the 40 percent rating assigned under DCs 5203-5202 encompasses all functional limitations and impairments of the left shoulder, to include limitation of motion and guarding, such that a separate rating under DC 5201 would compensate the Veteran twice for the same symptoms including pain, limitation of motion due to pain, and functional impairment, violating the anti-pyramiding provisions of 38 C.F.R. § 4.14. As such, the Veteran does not have any separately identifiable residual symptoms or functional impairment due to the left shoulder disability that is not already being compensated by the 40 percent rating under DCs 5203-5202 that would warrant additional compensation. As explained above, the Veteran is in receipt of a 40 percent rating under DCs 5203-5202 for fibrous union of the humerus, pain, limited motion of the left shoulder, chronic instability, and recurrent subluxation. See Rating Decisions November 1998; November 2003; November 2015. A separate rating under DC 5201 is not available because DC 5202 contemplates limitation of motion, including due to pain, which is described as guarding in DC 5202. Guarding is defined as an involuntary reaction to protect an area of pain. See "guarding." Merriam-Webster Medical Dictionary. "Guarding" is defined as a spasm of muscles to minimize motion or agitation of sites affected by injury or disease. https://medical-dictionary.thefreedictionary.com/guarding. Guarding may also be a sign detected during physical pain whereby the patient involuntarily contracts muscles second to pain. Jonas: Mosby's Dictionary of Complementary and Alternative Medicine. (c) 2005, Elsevier. All medical definitions of guarding involve the element of minimized or limited motion of the affected area due to injury or disease. That is, separate ratings distinguishing between left shoulder limitation of motion, including as due to pain, under DC 5201, and guarding due to pain or dislocations under DC 5202 would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14 as guarding, by definition, includes limitation of left shoulder motion. In this case, the left shoulder disability has been manifested by pain, and painful motion of the left shoulder, as well as guarding (including due to dislocations), which are all specifically contemplated under DC 5202. See 38 C.F.R. §§ 4.40, 4.45, 4.59. To the extent that the Veteran has difficulties with shoulder or arm movement or elevation, such limitation of motion is specifically contemplated as guarding under DC 5202, such that rating the symptoms of limitation of motion and guarding causing limitation of motion would result in rating the same symptoms under different disabilities and would compensate the Veteran twice for the same symptoms, constituting impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.71a, DC 5202. In addition, it would be pyramiding to assign a separate rating under DC 5201 for limitation of elevation of the left shoulder that results in symptoms of dislocation, pain, and weakness as these symptoms are based in part on joint rating factors, which are fully contemplated under DC 5202 as dislocation with episodes of guarding due to pain and weakness. Rating the symptoms of dislocation with guarding (causing limitation of motion) as shoulder weakness and limitation of elevation under DC 5201 would result in rating the same symptoms under different disabilities and would compensate the Veteran twice for the same symptomology as the 40 percent disability rating assigned under DCs 5203-5202, which already encompasses all functional limitations and impairments of the left shoulder, to include painful motion and weakness. In this case, the Veterans left shoulder disability has been manifested by painful motion of the left shoulder, and frequent episodes of subluxation of the left shoulder and guarding of all arm movements. The Veteran avoids movement of the left shoulder, to include raising his left arm for fear of dislocation/subluxation and sleeping on his right side due to pain that wakes him several times a night. Such limitation of motion has been considered in assigning the 40 percent rating. In short, for the Board to assign separate ratings of the left shoulder disability under DC 5201 and DCs 5203-5202 would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities, to include on an extraschedular basis The Veteran seeks a TDIU, to include on an extraschedular basis. See Correspondence, October 2018. He contends due to his service-connected shoulder disability, he has been unemployable since June 2015. As an initial matter, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice, 22 Vet. App. 447 (2009). Here, the Veteran submitted a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (TDIU) in December 2016. He reported he last worked in June 2015. 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). The question in a TDIU claim is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances. Rice, 22 Vet. App. at 452. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage." Faust v. West, 13 Vet. App. 342 (2000). 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). 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). In this case, the Veteran is service connected for left shoulder reconstruction status post recurrent dislocation evaluated at 10 percent disabling effective May 12, 1998, 20 percent disabling effective June 5, 2000, and 40 percent disabling effective August 22, 2003; left elbow radiculopathy evaluated at 10 percent disabling effective September 22, 2005; decreased range of motion of the left wrist with weakness and pain associated with left shoulder reconstruction evaluated at 10 percent disabling effective September 22, 2005; tinnitus evaluated at 10 percent disabling effective July 8, 2014; residual left shoulder painful scar evaluated at 10 percent disabling effective June 16, 2021; bilateral hearing loss evaluated as non-compensable effective January 3, 1987; and scar associated with left shoulder reconstruction evaluated as noncompensable effective July 8, 2015. Since July 8, 2014, his combined evaluation was 60 percent. Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the minimum percentage requirements of 38 C.F.R. § 4.16(a). In cases where the schedular criteria are not met, an extraschedular rating is for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321, 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance, because regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). More recently, the Court clarified that the initial decision whether to remand for extraschedular referral to the Director of Compensation Service under § 4.16(b) should address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. The Board's initial finding that extraschedular referral for TDIU is warranted is a factual one but is necessarily based on an evidentiary threshold that is lower than that for the ultimate decision to award an extraschedular TDIU rating. Ray v. Wilkie, 31 Vet. App. 58, 62-66 (2019). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, if the Director of Compensation denies an extraschedular TDIU rating, the Board then, reviewing that decision without deference and bearing in mind the benefit of the doubt standard, decides whether the veteran is unemployable by reason of his or her service-connected disabilities. Id. at 66. In other words, if, and only if, the Director of Compensation has determined that an extraschedular evaluation under § 4.16(b) is not warranted, does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. If the Board then decides to deny entitlement to an extraschedular TDIU evaluation under § 4.16(b) after a referral to the Director of Compensation has occurred, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." Id. at 62. The Board has considered whether the Veteran's disability picture warrants referral for consideration of an extraschedular evaluation for TDIU and finds that referral is warranted. On the Veteran's December 2016 VA Form 21-8940, he indicated his service-connected left shoulder disability prevents him from securing or following any substantially gainful occupation. The Veteran reported becoming too disabled to work in June 2015. Social Security Administration (SSA) records from November 2018 found that the Veteran had not engaged in any substantially gainful work since June 25, 2015 and has since possessed the following severe medical impairments: advanced degenerative osteoarthritis of the non-dominant left shoulder joint; advanced degenerative disc disease of the cervical spine, with multi-level disc syndrome; longstanding post-traumatic degenerative osteoarthritis of the right knee joint; and degenerative disc disease of the lumbar spine, eventually necessitating decompressive surgery at the L4-5 interspace. SSA found the Veteran was unable to perform any past relevant work, and the Veteran has been under a disability as defined in the Social Security Act since June 25, 2015 and has continued through to the present. During his June 2021 Shoulder Conditions VA examination, the Veteran reported an increase in left shoulder pain with radiculopathy and instability that has progressively worsened since 2015. He reported he was afraid to lift his left arm for fear of dislocation/subluxation and experiences pain with numbness and tingling radiating down his left arm to his wrist. He reported flare-ups of the left shoulder occur daily, with flare-ups being moderate to severe. His range of motion was limited to flexion 0 to 90 degrees, abduction 0 to 45 degrees, and external/internal rotation to 45 degrees. In November 2021 correspondence, the Veteran's representative argued that the Veteran worked for 15 years as an able-bodied seaman, requiring lifting and physical demands. The Veteran has no training to transition to less physically demanding jobs and his left shoulder impairment would affect his ability to perform sedentary or light jobs. Regarding his service-connected left upper extremity impairments, he reported painful daily flare-ups and he is afraid to lift his arm for fear of dislocation/subluxation. In addition, he reported difficulty sleeping due to shoulder pain, which would further affect his ability to perform work on an ongoing, continual basis. During his March 2021 virtual Board hearing, the Veteran testified that his left elbow/shoulder/wrist disabilities impact his ability to work in that he is limited to lifting 5 pounds or less. In addition, he testified that when he tries to do anything with the left arm, pain will shoot down his arm and once the pain starts, he described it as "uncontrollable." He noted a "stinging sensation" in the whole left arm. See Hearing Transcript, Page 17. He testified that he last worked in 2015 and his highest level of education was a high school diploma. See Hearing Transcript, page 22. There is sufficient evidence of record to suggest the Veteran's service-connected conditions impaired his ability to obtain or maintain gainful employment. The VA medical examinations indicate that his shoulder condition results in severe pain and an inability to raise his arm fully. The Veteran has also provided testimony that he experiences daily flare-ups of pain in his left shoulder and can only lift items less than 5 pounds with his left hand. The matter is REMANDED for the following action: 1. Refer the Veteran's claim of entitlement to a TDIU on an extraschedular basis to the Director of the VA Compensation Service for appropriate extraschedular consideration under 38 C.F.R. § 3.321(b)(1) and for an opinion with respect to whether the Veteran is unemployable due to his service-connected disabilities under 38 C.F.R. § 4.16(b). (Continued on the next page) 2. After completing the above, and any additionally indicated development, re-adjudicate the claim. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.