Citation Nr: 21074768 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-14 369 DATE: December 16, 2021 ORDER A rating in excess of 60 percent for right shoulder arthroplasty with scars is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected right shoulder arthroplasty with scars is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's right shoulder arthroplasty with scars is manifested by chronic residuals consisting of severe, painful motion and weakness in the affected extremity, without scars that are unstable or painful, of a size warranting a compensable rating, or result in functional impairment. 2. Resolving all doubt in favor of the Veteran, his service-connected right shoulder arthroplasty with scars rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for right shoulder arthroplasty with scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5051. 2. The criteria for a TDIU due to right shoulder arthroplasty with scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2011 by a Department of Veterans Affairs (VA) Regional Office. In January 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2018, the Board denied an increased rating for the Veteran's right shoulder disability and remanded the TDIU claim for additional development. He subsequently appealed the denial of the increased rating claim to the U.S. Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Remand (JMR) that vacated and remanded the Board's May 2018 decision. In December 2019, the Board remanded the Veteran's claim for an increased rating for his right shoulder disability, as well as his claim for a TDIU, for additional development. The case now returns for further appellate review. The Board observes that additional evidence was associated with the record since the issuance of the most recent July 2020 supplemental statement of the case. However, in December 2020, the Veteran, through his representative, waived Agency of Original Jurisdiction (AOJ) of such evidence. 38 C.F.R. § 20.1305(c). Therefore, the Board may properly consider the entirety of the evidence of record. 1. Entitlement to a rating in excess of 60 percent for right shoulder arthroplasty with scars. 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods 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). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation 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. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he 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). Further, 38 C.F.R. § 4.59 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 evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board stems from the Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) that was received on April 27, 2010. For the entire appeal period, a 60 percent rating has been assigned for his right shoulder disability, exclusive of the period from February 22, 2011, to April 1, 2012, where a temporary total rating is in effect, pursuant to DC 5010-5051, which pertains to traumatic arthritis and shoulder replacements, respectively. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. As such, in the instant case, the Veteran's traumatic arthritis is rated based on the residuals of his shoulder replacement. The Board notes that, 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). These amendments revised select DCs "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. As relevant to the instant case, DC 5010, which, under the old regulations, pertains to arthritis due to trauma and directs that such disability should be rated as degenerative arthritis under DC 5003, was revised to address post-traumatic arthritis and directs that such disability should be rated as limitation of motion, dislocation, or other specified instability under the affected joints. As pertinent to DC 5010 as in effect prior to February 7, 2021, DC 5003 provides that degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In the absence of limitation of motion, DC 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under DC 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, the shoulder is considered a major joint. 38 C.F.R. § 4.45. Under DC 5051, as in effect prior to and as of February 7, 2021, a 60 percent rating is assigned for prosthetic replacement of the shoulder joint with chronic residuals consisting of severe, painful motion or weakness in the affected extremity. A 100 percent rating is assigned for prosthetic replacement of the shoulder joint for one year following implantation of prosthesis. As the record shows that the Veteran is right-handed, the rating criteria pertaining to the "major" joint apply. 38 C.F.R. § 4.69. The normal range of motion of the shoulder is from 0 degrees of flexion (forward elevation) to 180 degrees of flexion, from 0 degrees of abduction to 180 degrees of abduction, from 0 degrees of external rotation to 90 degrees of external rotation, and from 0 degrees of internal rotation to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I. In the July 2019 JMR, the parties determined that, in denying the Veteran's claim for an increased rating for his right shoulder disability in the May 2018 decision, the Board erred in relying upon inadequate VA examinations conducted in September 2009 and September 2013. In this regard, the parties found that such examiners failed to test 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 as required by Correia, supra. The parties further found that the Board erred in failing to afford the Veteran a new VA examination so as to assess the nature and severity of his scars in light of the conflict between the September 2009 VA examination, September 2013 VA examination, and the Veteran's January 2017 Board hearing testimony as to the number and severity of such scars. Consequently, the case was remanded in December 2019 in order to obtain additional VA examinations that addressed such matters. Nonetheless, after a review of the evidence, to include recent VA examinations conducted in January 2020 and May 2021 that address the concerns raised in the JMR, the Board finds that the preponderance of the evidence is against a rating in excess of 60 percent for the Veteran's right shoulder arthroplasty with scars. In this regard, following the one-year period after prosthesis implantation, a 60 percent rating is the maximum evaluation assignable for the major joint under DC 5051. The only DC providing a rating higher than 60 percent for the major joint is DC 5202, which allows a 70 percent rating when there is loss of head of the humerus (flail shoulder). Here, X-rays taken on multiple occasions do not indicate such condition; rather, they show that the humerus was replaced as part of the prostheses and it was well-seated. See May 2010, April 2011, March 2012, August 2014, and October 2018 VA treatment records. Additionally, the VA examinations conducted throughout the appeal period reflect no loss of head of the humerus. See September 2009, September 2013, January 2020, and May 2021 VA examinations. Further, DCs 5200, 5201, and 5203 for scapulohumeral articulation, limitation of motion of the arm, and impairment of the clavicle or scapula do not provide for ratings in excess of 60 percent. Moreover, the Board finds that the currently assigned 60 percent rating for the Veteran's right shoulder arthroplasty with scars contemplates the totality of his symptomatology and related functional impairment. In this regard, the record reflects that the Veteran's right shoulder range of motion is severely limited as demonstrated by testing conducted at the September 2009, September 2013, January 2020, and May 2021 VA examinations; however, the joint is not shown to be ankylosed, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. In this regard, while the parties to the July 2019 JMR found that range of motion testing at the September 2009 and September 2013 VA examinations was inadequate, such conducted in January 2020 and May 2021 is adequate. Specifically, at the former examination, active and passive range of motion of the right shoulder joint, with pain on weight-bearing and nonweight-bearing, revealed flexion to 70 degrees, abduction to 60 degrees, external rotation to 15 degrees, and internal rotation to 90 degrees, which was greatly reduced when compared to the left shoulder, which is not undamaged as such is also service-connected. However, the examiner estimated that he had a further loss in range of motion of the right shoulder as a result of repeated use over time and flare-ups, which resulted in flexion to 65 and 50 degrees, abduction to 50 and 30 degrees, external rotation to 10 and 10 degrees, and internal rotation to 90 and 80 degrees, respectively. However, there was no ankylosis. At the May 2021 VA examination, the Veteran reported pain that was an 8 to 10 on a scale of 1 to 10. On examination, active and passive range of motion of the right shoulder joint, without pain on weight-bearing and nonweight-bearing, revealed flexion to 45 degrees, abduction to 40 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees, which was greatly reduced when compared to the left shoulder, which is not undamaged as such is also service-connected. He had no additional loss of function or range of motion after repetitive-use testing, and denied flare-ups. Additionally, there was no ankylosis. Further, at the September 2013, January 2020, and May 2021 VA examinations, muscle strength testing was 4/5 for flexion and abduction of the right shoulder, and, while the January 2020 VA examiner found that muscle mass was decreased around the right shoulder with 2 centimeters of atrophy, the other examinations revealed no atrophy. Furthermore, the September 2013 VA examiner found that the Veteran's residuals of his right shoulder replacement included intermediate degrees of residual weakness, pain, and/or limitation of motion, and chronic residuals consistent with severe painful motion and/or weakness. Additionally, the January 2020 VA examiner found that the Veteran experienced chronic residuals of his right shoulder arthroplasty consistent with severe painful motion and/or weakness, and the May 2021 VA examiner determined that he experienced chronic residuals of his right shoulder arthroplasty consistent with severe painful motion and/or weakness, limited range of motion, and scars. However, other than surgical scars (which will be addressed below), no additional pertinent physical findings, complications, conditions, signs and/or symptoms related to his right shoulder disability were noted, and the examiners found that the Veteran's resulting functional impairment associated with his right shoulder disability was not such that no effective function remains other than that which would be equally served by an amputation with prosthesis. With regard to the DeLuca factors, the Board acknowledges the Veteran's pain and functional limitations. However, his pain and functional loss is explicitly considered in the maximum 60 percent rating he has been awarded under DC 5051. Therefore, the Board finds insufficient evidence to support a finding that his pain is so disabling as to actually or effectively limit shoulder motion to such an extent as to warrant the assignment of a higher rating based on amputation. The Board has also considered the Veteran's reports of right hand and arm tingling/ numbness made throughout the appeal. However, the September 2013, January 2020, and May 2021 VA examiners found that, other than surgical scars, no additional pertinent physical findings, complications, conditions, signs and/or symptoms related to his right shoulder disability were noted. Consequently, while the Veteran is competent to report the nature of his symptoms, to include tingling and numbness, he is not competent, as a lay person, to relate them to a specific diagnosis, such as his right shoulder arthroplasty. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, to the extent that he alleges that he has separate conditions of carpal tunnel syndrome and/or ulnar neuropathy, the Veteran is advised that he may file claims for such conditions at the AOJ. Furthermore, the Veteran's reports of pain, severe limitation of motion, and loss of muscle, and their resulting functional impairment, to include the inability to sit, stand, or lay down for any length of time and difficulty with lifting, are contemplated by his assigned 60 percent rating under DC 5051 for severe painful motion and weakness in the affected extremity. Consequently, a rating in excess of 60 percent for right shoulder arthroplasty is not warranted. The Board has also considered whether a separate compensable rating is warranted for the Veteran's right shoulder surgical scars. Specifically, he alleged at the January 2017 Board hearing that such were tender on occasion. In this regard, scars are rated under 38 C.F.R. § 4.118, DCs 7800 through 7805. DC 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118. As the scars in this case do not involve the head, face, or neck this DC is not for application. DC 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear. 38 C.F.R. § 4.118. Under this DC, a 10 percent rating is to be assigned when the scar(s) cover an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm). Area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) is assigned a 20 percent rating. Area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) is assigned a 30 percent rating. Area or areas of 144 square inches (929 sq. cm) or greater is assigned a 40 percent rating. As will be discussed below, the evidence of record does not indicate that the Veteran's surgical scars are deep and nonlinear, or that they involve a total area of at least 6 square inches (39 sq. cm). See September 2009, September 2013, January 2020, and May 2021 VA examination reports. DC 7802 pertains to burn scars or scars due to other causes not of the head, face, or neck that are superficial and nonlinear. 38 C.F.R. § 4.118. Under this DC, a 10 percent rating is assigned when the scar(s) cover an area or areas of 144 square inches (929 sq. cm) or greater. No other rating is provided by this DC. Note (1) states that a superficial scar is one not associated with underlying soft tissue damage. In this case, as will be noted below, the Veteran's surgical scars do not have the requisite measurement for a compensable rating under this DC. See September 2009, September 2013, January 2020, and May 2021 VA examination reports. DC 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Id. at Note (3). DC 7805 provides that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118. As noted in the May 2018 decision, the September 2009 VA examination revealed two scars: scar # 1 was linear and superficial and measured 19 cm. x 1 cm. and scar # 2 was linear and superficial and measured 16 cm. x 1 cm. Scar #1 was across the anterior right shoulder and scar #2 was across the anterior of the right shoulder distal to scar #1. The examiner stated the scars were not painful on examination and did not cause impairment of function or motion. Additionally, a September 2013 VA examination report noted one linear scar located on the right anterior shoulder and the examiner concluded that there was no change in the scar diagnosis. He also noted that the Veteran's scar condition was quiescent. However, at the January 2017 Board hearing, the Veteran stated that his scars were sometimes tender. Thus, in light of the conflicting reports as to the number and severity of such scars, the Veteran underwent additional VA examinations in January 2020 and May 2021 in accordance with the July 2019 JMR and December 2019 remand. In this regard, the January 2020 examiner explained that the Veteran previously had two separate scars on the right shoulder, but, as a result of additional surgery, he now had one complex scar that measured 19 cm. x .5 cm. He noted the scar was not painful or unstable on examination and did not cause impairment of function or motion. Similarly, the May 2021 examiner noted two scars, but stated such had improved. Specifically, the scars measured 10 cm. x 1 cm. and 12 cm. x 1 cm. The examiner noted such were painless and stable, with no underlying tissue loss. The Board notes the discrepancy as to whether there are one or two scars residual to the Veteran's right shoulder arthroplasty; however, it seems that, due to the complex nature of the scarring due to repeated surgeries, the examiners interpreted the scarring differently. Moreover, while the Veteran reported at his January 2017 Board hearing that his scars were sometimes tender, such is contradicted by the comprehensive examinations conducted throughout the appeal, to include those performed in January 2020 and May 2021, in part, for the purpose of determining the presence of painful scarring. Consequently, upon review of the evidence of record, the Board finds the preponderance of the evidence shows the Veteran's surgical scars of the right shoulder are linear, superficial, stable, not painful on examination, and measure less than 6 square inches (39 sq. cm). Further, the scars cause no functional impairment of the right shoulder. Accordingly, a separate compensable rating for the Veteran's surgical scars of the right shoulder is not warranted. In reaching its conclusions in this case, the Board acknowledges the Veteran's belief that his right shoulder symptoms are more severe than as reflected by the current disability rating. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert, supra. The Board finds the medical evidence in which professionals with medical expertise examined the Veteran's right shoulder, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition. The Board has considered whether staged ratings under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In adjudicating the increased rating claim herein, the Board finds the preponderance of the evidence is against higher or separate ratings. Consequently, the benefit of the doubt doctrine is not applicable in such regard, and the Veteran's claim for an increased rating for right shoulder arthroplasty with scars is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay and profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility that when the same claimant worked before." In other words, "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration Regulations.) Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In regard to determining whether a protected work environment exists, the Court has indicated that factors to consider may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Additionally, in Judge Lance's concurring opinion, it was noted that where a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Id. at 396. 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 v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As an initial matter, the Board notes that the Veteran meets the schedular threshold for consideration of a TDIU for the entire appeal period stemming from his April 27, 2010, claim. Specifically, since such date, he is service-connected for right shoulder arthoplasty with scars, evaluated as 60 percent disabling prior to February 22, 2011, 100 percent disabling from February 22, 2011, to April 1, 2012, and 60 percent disabling thereafter; diabetes mellitus, type II, evaluated as 20 percent disabling as of January 27, 2012; left shoulder with degenerative changes, evaluated as 10 percent disabling; residuals of a fracture of the distal left tibia; scar residual to a laceration left lower leg; and warts of the arms/legs, each evaluated as noncompensably disabling. Such results in a combined disability rating of 70 percent prior to February 22, 2011; 100 percent from February 22, 2011, to April 1, 2012; and 80 percent thereafter. However, the Board notes the Veteran does not contend, and the record does not show, that his service-connected diabetes mellitus, type II, left shoulder disability, residuals of fracture distal left tibia, scarring, or warts impact his ability to work. Rather, in his April 2010 and December 2020 VA Forms 21-8940, he only alleged his right shoulder disability rendered him unemployable. With respect to the Veteran's education, his VA Forms 21-8940 show that he completed high school and two years of college. As pertinent to his work history, the Veteran reported that he last worked full-time from August 2007 to October 2009 as a cook in a detention center. In his December 2020 VA Form 21-8940, he indicated that, prior to such position, he worked full-time from 2006 to 2007 as a guard on an Air Force base, and from 2004 to 2006 as a cook in a correctional facility. Additionally, the Veteran reported that he worked part-time in 2015 and 2016 as a cook in a jail and, at his January 2017 Board hearing, he indicated that he worked 16 hours a week. In further support of such report, the Veteran submitted his earnings from the Social Security Administration (SSA), which reflects that, with exception of earing $1,521 in 2015 and $7,189 in 2016, he received no earnings since 2009. Moreover, as the earnings from 2015 and 2016 are less than the poverty thresholds for a single-person household for those years ($11,770 and $11,880 in 2015 and 2016, respectively), and the positions were part-time only, the Board finds that such job was marginal in nature. Consequently, for the entire appeal period stemming from the Veteran's April 27, 2010, TDIU claim, the Board finds that he has not worked in any substantially gainful capacity. As to the functional impairment associated with the Veteran's service-connected right shoulder disability, the September 2009 VA examiner indicated that such disability limited his ability to use his right arm in cooking duties, and he had limited right arm use when dressing, toileting, and performing household chores. Additionally, a November 2009 VA treatment record reflects that the Veteran reported that he quit his job because his shoulder and knees hurt too much, and he could not work as a cook as the job was too physical. In March 2010, he reported any movements with the right arm will aggravate his shoulder pain, particularly when going to the bathroom and having to reach behind to wipe himself. He further stated he used to work as a cook, but had to quit in October 2009, partly because of problems he had with his right shoulder pain associated with his work activities. At the September 2013 VA examination, the examiner opined such disability impacted the Veteran's ability to work as he had very limited use of his right arm. At an August 2014 orthopedic consultation, a VA orthopedic surgery resident noted that the Veteran was a candidate for disability as he was unable to return to his prior job as a result of limited shoulder function. An August 2015 occupational therapy note reflects the Veteran had pain and hand cramping with chopping, cooking, and using a knife. Similarly, a March 2016 orthopedic note reflects the Veteran's right shoulder continued to be significantly painful for him, he had very limited motion, and was unable to do even basic activities of daily living (ADLs), such as chop vegetables, with his right upper extremity. The record also reflects the Veteran reported doing yard work using a riding lawn mower during the appeal period. See July 2015, April 2016, and August 2017 VA treatment records. However, the record also reflects the Veteran testified that he could not cut his grass, drive, or do his home cooking, and his spouse needed to help him shower. At the Veteran's January 2020 VA examination, the examiner opined that his ability to use his right shoulder is greatly diminished due to pain and restricted range of motion as he had difficulty in using right hand for things like putting on shirts, getting a wallet out of back pocket, and using the toilet. Additionally, he indicated that the Veteran was unable to bring his arm above his right shoulder due to limited range of motion and had deceased muscle mass in his right shoulder. In July 2020 statement, the Veteran's spouse noted that the Veteran's right shoulder disability caused difficulty in taking the trash out, cooking, cutting up food, driving, putting on socks, and bathing himself, he required assistance with routine ADLs, and his sleep was disrupted as a result of pain. In December 2020, the Veteran submitted a private report in which the examiner, Dr. P.C., opined the Veteran's right shoulder disability is, more likely than not, the sole cause of his unemployability since October 2009. In this regard, he noted that the Veteran has a GED and has taken some college classes, as opposed to completing two years of college as indicated on his VA Forms 21-8940. Dr. P.C. provided a detailed review of the evidence of record, to include the impact his right shoulder disability, with severe pain and limited range of motion, had on his ADLs and ability to function as a cook. Specifically, he noted chopping vegetables, a common cooking duty, would be significantly restricted. Dr. P.C. further noted that, following the Veteran's retirement in October 2009, he attempted a part-time job as a cook for a short period between 2015 and 2016, but ultimately had to leave due to functional limitations and inability to lift, carry, prepare, or cook food without significant pain in his right shoulder, which was well-documented in his medical history. Further, he acknowledged that ,while the Veteran participated in hobbies such as doing puzzles or fishing, such did not demonstrate the ability to work effectively or safely in a commercial kitchen, or any other employment consistent with his prior work history. Finally, at the May 2021 VA examination, the examiner noted that, as a result of his right shoulder disability, the Veteran could not perform overhead work, could not lift more than 5 pounds with his right arm, and was not able to type for more than 15 minutes without a break. Based on the foregoing evidence, the Board resolves all doubt in favor of the Veteran and finds that his service-connected right shoulder disability rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history for the entire appeal period. Specifically, the evidence demonstrates that such service-connected disability hinders his ability to work in a physical and sedentary environment as he has difficulty with lifting and carrying over 5 pounds, and with repetitive motions like chopping vegetables or typing for more than 15 minutes at a time. The Veteran's right shoulder limitations are further exhibited by his inability to accomplish basic ADLs without help, to include bathing, toileting, dressing, and cooking. Additionally, the Board notes such limitations would additionally cause a safety issue in a kitchen environment where sharp knives, heavy equipment, and boiling water are commonplace. Thus, the Board resolves all doubt in favor of the Veteran and finds that his service-connected right shoulder disability rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Consequently, a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.