Citation Nr: 21074223 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-34 508 DATE: December 14, 2021 ORDER Entitlement to an initial rating in excess of 40 percent for right (major) shoulder degenerative joint disease, with tear of superior labrum, and tendinosis of the rotator cuff and long head of the biceps tendon, status post arthrotomy, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) beginning July 7, 2020, is dismissed. REMANDED Entitlement to TDIU prior to July 7, 2020, to include on an extra-schedular basis, is remanded. FINDINGS OF FACT 1. Throughout the period of the appeal, the Veteran's service-connected right shoulder disability has been manifested by disability equating to abduction limited to 25 degrees with pain and lack of endurance due to flare-ups, but not ankylosis. 2. The Veteran's service-connected schizophrenia is rated 100 percent disabling effective July 7, 2020. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 40 percent for service-connected right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 4.1, 4.3, 4.59 4.7, 4.10, 4.71a, Diagnostic Code 5201. 2. For the period beginning July 7, 2020, entitlement to TDIU is dismissed as moot. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. §§. 4.16, 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1972 to October 1973. This case was before the Board of Veterans' Appeals (Board) in October 2018 when it was remanded for additional development. Right Shoulder Disability Initially, in a July 2015 rating decision, service connection was granted for the Veteran's right shoulder disability and a 20 percent disability rating was assigned, effective October 14, 2014. In a June 2020 rating decision the AOJ assigned a 40 percent schedular rating, effective October 14, 2014. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40 ; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As the VA examination reports of record show that the Veteran is right-handed, his right shoulder is the major extremity. The rating criteria for evaluating certain musculoskeletal disabilities under 38 C.F.R. § 4.71a , including Diagnostic Code 5201, were amended during the pendency of the appeal effective February 7, 2021. Prior to the regulatory change, Diagnostic Code 5201 assigned a maximum disability rating of 40 percent where limitation of the major arm is to 25 degrees from the side. 38 C.F.R. § 4.71a , Diagnostic Code 5201 (2020). The regulatory change amended Diagnostic Code 5201 only to the extent that it defined limitation of motion to 25 degrees from the side is based on flexion/abduction. 85 Fed. Reg. 76453 (Nov. 30, 2020). Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a , Plate I. Diagnostic Code 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 fact that Plate I in 38 C.F.R. § 4.71 shows how to measure motion of the shoulder joint in both flexion and abduction planes merely demonstrates that limitation of motion in either plane may establish a compensable disability rating under Diagnostic Code 5201. Id. at 1359 (citing Mariano v. Principi, 17 Vet. App. 305, 317 (2003)). Diagnostic Code 5200 provides a 50 percent disability rating, the maximum available, for ankylosis of the major arm. Ankylosis is the complete immobility of a joint in a fixed position, either favorable or unfavorable. Lewis v. Derwinski, 3 Vet. App. 259 (1992); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint"). The 2021 revisions to 38 C.F.R. § 4.71a did not change this diagnostic code. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. Here, the VA examination reports for the period (dated in June 2015 and October 2019) as well as the treatment records fail to show right shoulder ankylosis at any point since October 2014. Although the Veteran demonstrated restricted movement in his right shoulder, active range of motion findings for the disability were also documented. Therefore, a rating in excess of 40 percent under Diagnostic Code 5200 is not warranted on this basis. The Board has also considered other potentially applicable Diagnostic Codes and find none provide a rating higher than 40 percent. The 2015 and 2019 VA examination reports state there was no flail shoulder, false flail joint, or fibrous union of the humerus. Diagnostic Code 5202, then, is not applicable because there is no evidence of impairment of the humerus. The Board does acknowledge that functional loss due to pain or painful motion was present during the appeal period. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Johnson v. Brown, 9 Vet. App. 7 (1996). However, given that the Veteran was already in receipt of the schedular maximum for limitation of motion of the shoulder, inquiry into the DeLuca factors is moot. Johnston v. Brown, 10 Vet. App. 80, 87 (1997). TDIU Beginning July 7, 2020 A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Since July 7, 2020, the Veteran has been assigned a 100 percent for his service-connected schizophrenia. See March 2021 rating decision. The Veteran's claim for entitlement to TDIU from July 9, 2018 is moot. See Locklear v. Shinseki, 24 Vet. App. 311, 314 n.2 (2011) (finding entitlement to TDIU mooted from the effective date of a 100% schedular disability rating). The Board recognizes that an award of a 100 percent disability rating does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional disability ratable at 60 percent or higher. A 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render a Veteran eligible for special monthly compensation benefits pursuant to 38 U.S.C. § 1114 (s). Buie, supra; Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, as of July 7, 2020 the Veteran is service connected for schizophrenia rated 100 percent disabling; a right shoulder disability rated 40 percent disabling; and a scar rated noncompensable. The Veteran does not have an additional disability apart from his service-connected psychiatric disability that is ratable at 60 percent or higher. Furthermore, the record does not suggest that his service-connected disabilities render him unemployable apart from his service-connected schizophrenia. Notably, an October 2019 VA examiner opined that the Veteran's right shoulder disability would only prevent overhead activity. The medical evidence does not suggest that Veteran's service-connected disabilities excluding his schizophrenia render him unemployable. Accordingly, there is no evidence that further consideration of TDIU would benefit the Veteran by assisting him in obtaining SMC pursuant to 38 U.S.C. § 1114 (s). The issue of TDIU beginning July 7, 2020, is therefore rendered moot by the RO decision granting a 100 percent rating for service-connected schizophrenia as of July 7, 2020. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.101 (a). REASONS FOR REMAND TDIU Prior to July 7, 2020 The Veteran submitted a formal claim seeking TDIU in 2015. Although this decision finds entitlement to TDIU for the period beginning July 7, 2020, to be moot, TDIU could be awarded as early as the date of claim. Total disability will be considered to exist when there is present any impairment of mind or body which 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, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extra-schedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Here, the Veteran does not meet the schedular threshold for a TDIU contained in 38 C.F.R. § 4.16 (a), prior to July 7, 2020. Thus, a TDIU may only be assigned on an extra-schedular basis. 38 C.F.R. § 4.16 (b). A private vocational assessment received in October 2020 concludes the Veteran has been precluded from employment since at least October 14, 2014. The Board cannot award a TDIU rating under 38 C.F.R. § 4.16 (b) in the first instance, as that regulation requires that the Agency of Original Jurisdiction (AOJ) first submit the claim to the Director of the Compensation Service for extra-schedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Therefore, the Board finds that remand is necessary. The matter is REMANDED for the following action: Refer the case to the Under Secretary for Benefits or the Director, Compensation Service, for a determination as to whether the Veteran's disability picture warrants the assignment of a TDIU, on an extra-schedular basis, prior to July 7, 2020. K.R. FLETCHER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.