Citation Nr: 21075467 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-29 376 DATE: December 20, 2021 ORDER Entitlement to a disability evaluation of 40 percent for a right shoulder disability prior to August 26, 2021, is granted. Entitlement to a disability evaluation in excess of 40 percent for a right shoulder disability from August 26, 2021 is denied. Entitlement to a disability evaluation of 20 percent for scarring of the bilateral feet is granted. Entitlement to a TDIU prior to October 20, 2018 is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right shoulder condition has manifested in severely painful motion in virtually any range of abduction. 2. There is no evidence of ankylosis of the right shoulder, or of functional limitation equating to ankylosis during the appeal period. 3. The Veteran has four painful scars in total affecting the lower extremities. 4. Throughout the period on appeal, the Veteran's service-connected disabilities have rendered him unable to secure and maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation of 40 percent for a right shoulder disability have been met for the entirety of the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 5201. 2. The criteria for entitlement to a disability evaluation in excess of 40 percent for a right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 5201. 3. The criteria for entitlement to a disability evaluation of 20 percent for scarring of the bilateral feet have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 7804. 4. The criteria for entitlement to a TDIU for the entire appeal period have been met. 38 U.S.C. § 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to February 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February 2017. The transcript is of record. These matters have been before the Board on several occasions, most recently in July 2021, at which time they were remanded for development. They return now to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating 1. Entitlement to a disability evaluation in excess of 20 percent for a right shoulder disability prior to August 26, 2021, and in excess of 40 percent thereafter Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume §§ 4.40 and 4.45. The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's shoulder disability is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Prior to August 26, 2021, the Veteran was in receipt of a 20 percent evaluation. The Board notes that this Diagnostic Code, and all diagnostic codes dealing with the shoulder and arm, have separate criteria based on whether a veteran is left or right-handed. The record indicates the Veteran is right-handed, and the appeal concerns his dominant or "major" arm. The regulations define normal range of motion for the shoulder as forward flexion from zero to 180 degrees, abduction from zero to 180 degrees, and internal and external rotation to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2018). With forward elevation (flexion) and abduction, range of motion for the arm is from the side of the body (zero degrees) to above the head (180 degrees) with the mid-point of 90 degrees where the arm is held straight out from the shoulder. Id. With external rotation, range of motion for the arm is from the shoulder level (zero degrees) to in line with the side of the head (90 degrees). Id. With internal rotation, range of motion for the arm is from the shoulder level (zero degrees) to in line with the side of the torso (90 degrees). Id. Under Diagnostic Code 5201, a 20 percent rating is assigned for limitation of motion of the major shoulder at shoulder level, a 30 percent rating is for limitation of motion midway between the side and shoulder level, and a 40 percent rating is for limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a , DC 5201. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. 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 In the instant case, VA must consider the claim for a higher rating pursuant to the former and revised regulations only after February 7, 2021. See VAOPGCPREC 32000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The evidence of record shows significant functional limitation associated with the Veteran's right shoulder disability throughout the period on appeal. Critically, as explained below, the Board observes that the Veteran's demonstrated right shoulder range of motion has not necessarily been indicative of functional use of the right arm throughout that range of motion, and the functional limitation conferred by the Veteran's right shoulder disability has exceeded what tested range of motion suggests. For instance, at a November 2019 VA examination, right shoulder flexion and abduction were limited to 80 degrees each, but there was evidence of pain on motion, and the Veteran's shoulder was too tender for repeat testing. With repetitive use of the joint over time, the examiner indicated that range of motion would not be expected to change, but the Veteran would be expected to experience more pain and weakness in the joint. These findings mirror the Veteran's February 2017 Board hearing testimony, where the Veteran endorsed right shoulder symptoms including pain, weakness, and cramping, indicating that they necessitate the use of pain medication and cause functional impairment independent of lost range of motion. A February 2021 VA examiner noted nearly normal flexion and abduction, with no atrophy, no ankylosis, no history of subluxation, and no mechanical symptoms, but noted the Veteran's substantial pain on motion. In August 2021 however, range of motion was dramatically reduced, the Veteran's shoulder flexion limited to 15 degrees, with substantial pain on motion in all tested maneuvers, and with weight bearing and non-weight bearing, the pain rising to such a level as to cause functional loss. Moreover, repeat testing was not possible due to pain, and rotator cuff testing was contraindicated due to the symptoms the Veteran exhibited on examination. These examination findings vary substantially with respect to objective symptomatology (e.g., tested range of motion tends to vary,) but they are consistent with each other, and with the Veteran's credible lay statements and hearing testimony, with respect to debilitating pain and weakness resulting in functional loss. Based on this functional loss, the Board finds that the Veteran's right shoulder condition has most closely approximated the criteria associated with a 40 percent evaluation for limitation of motion of the dominant shoulder for the entire period on appeal. Critically, range of motion testing alone has not captured the full extent of limitation, and the Veteran's ability to move the arm in an examination setting does not appear to accord with his ability to use the arm in everyday life. He has credibly testified that his use of the arm is so limited as to render him in need of assistance with everyday tasks, and evidence of pain, tenderness, and weakness with use of the shoulder on testing supports these statements. There is, however, no basis for an evaluation in excess of 40 percent for any portion of the period herein on appeal. The Veteran's shoulder is not ankylosed, and there is no objective evidence that his limitations, while substantial, functionally approximate ankylosis, nor is there evidence of the equivalent of ankylosis during flareups. 38 C.F.R. § 4.71a, Diagnostic Code 5201; Chavis v. McDonough, Vet.App. , No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare."). There is no objective evidence of humeral head impairment, or impairment of the clavicle or scapulae, and no evidence of any history of subluxation or mechanical symptoms. Thus, in sum, the Board finds warranted entitlement to a 40 percent evaluation for a right shoulder disability for the entire appeal period, and to that extent, the appeal is granted. 2. Entitlement to a disability evaluation in excess of 10 percent for scarring of the bilateral feet The Veteran is in receipt of a 10 percent evaluation for scarring of the bilateral feet and avers that his disability warrants an increased evaluation. The disability is evaluated under DC 7804. The Board notes that on July 13, 2018, VA published a final rule amending its regulations on skin disabilities. 83 Fed. Reg. 32592 (July 13, 2018). The effective date of the final rule is August 13, 2018. However, for this final rule, VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran filed his initial increased rating claim before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. The pre-amended DC 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, DC 7801 (2017). In contrast, the amended DC 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square cm) but less than 12 square inches (77 square cm). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square cm) but less than 72 square inches (456 square cm). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square cm) but less than 144 square inches (929 square cm). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square cm) or greater. 38 C.F.R. § 4.118, DC 7801. Note (1) to the pre-amended DC 7801 stated that a deep scar is one 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. 38 C.F.R. § 4.118, DC 7802. 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 cm) or greater. Under both the old and new rating criteria, DC 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating for is assigned for one or two such scars. A 20 percent rating is warranted for three to four such scars, and a 30 percent disability rating is assigned for five or more scars. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118, DC 7804. Under the old rating criteria, DC 7805 provided 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, DC 7805. The Board notes that this DC is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under DCs 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, DC 7805. A review of the evidence in this case shows the Veteran is beset by four scars on his feet, two on the right foot and two on the left. A VA examiner with whom the Veteran met in November 2019 measured the scars as 5 cm x 0.5 cm, 3 cm x 0.5 cm, 2 cm x 0.5 cm, and 1 cm x 0.5 cm. The examiner indicated that none of the scars were painful or unstable, but the findings, and specifically the basis for their variance from the Veteran's contentions, is left unexplained. A second VA examiner, with whom the Veteran met in March 2021, indicated that each of the Veteran's scars measured 1 cm x 0.5 cm, and that all were painful, but none unstable. Finally, an August 2021 VA examiner measured the scars at 11 cm x 0.2 cm, 3 cm x 0.4cm, 8 cm x 0.1 cm, and 2.5 cm x 0.3 cm, characterizing all scars as painful and tender to palpation, but with no underlying tissue damage. Specifically, the Veteran's bilateral foot scars are achy, sore, and particularly painful when wearing shoes and socks. A review of this evidence convinces the Board that entitlement to a 20 percent evaluation is warranted for the entire appeal period based on the presence of 4 painful scars. The scars' dimensions do not meet the minimum requirements for a compensable evaluation, but the majority of the evidence in this case indicates they cause the Veteran pain. A higher evaluation under DC 7804 is unwarranted because there are no more than 4 painful scars, and evaluation under a different DC is unwarranted because the scars are superficial and do not affect the head, face, or neck. In sum, the Board finds warranted entitlement to a 20 percent evaluation, but no higher, for the entirety of the appeal period, and to that extent the appeal is granted. 3. Entitlement to a TDIU prior to October 20, 2018 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 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. Id. Disabilities resulting from common etiology or a single accident will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. Id. Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), his or her case shall be submitted for extraschedular consideration. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). The instant claim arises from an August 21, 2012 TDIU claim. A review of the record shows the Veteran is service connected for a right shoulder condition, a thyroid condition, hemorrhoids, disabilities of the bilateral feet, a right knee condition, a gastrointestinal condition, chronic urticaria, and painful scarring of the upper and lower extremities from that date, and for TMJ dysfunction from October 16. 2013. The schedular criteria for entitlement to a TDIU are, by virtue of the increased awards in the instant decision, met from the date of claim. The Veteran completed four years of college, with no additional training or education, and last worked in 2008 as a nuclear security guard. He has received Social Security Disability benefits since May 2012. The record reflects significant and widespread symptoms affecting the Veteran's occupational capabilities throughout the period on appeal. The Veteran has credibly averred, and the record supports his contentions that his exertional and postural capacities are severely limited by disabilities of the right knee, right shoulder, and bilateral feet, his capacity to sustain focus and concentration are impacted by pain due to various disabilities, side effects from pain medication, and from October 2013, pain, headaches, and difficulty focusing due to his TMJ disability. VA examinations of the Veteran's shoulder have revealed severely limited use of the right arm, with constant pain and weakness. The Veteran's hemorrhoids limit his ability to remain seated for prolonged periods. Scarring on the bilateral feet cause discomfort when wearing shoes and socks. A private vocational expert who submitted an October 2021 assessment of the Veteran's occupational capabilities concluded that the Veteran has been unable to secure or maintain gainful employment for most or all of the appeal period due to a range of symptoms including pain, postural limitations, difficulty with concentration due to pain and side effects of medication, absenteeism due to service connected disability, and the need for frequent breaks throughout the work day due to symptoms associated with service connected disability. The Board observes that this private vocational assessment is the only assessment of record explicitly to consider holistically the Veteran's symptoms attributable to service -connected disability, and moreover, the opinion is fully reasoned and explained, and has been furnished by a certified vocational evaluator with relevant expertise. Accordingly, the Board affords great probative weight to the assessment. The Board also regards as credible the Veteran's statements with respect to the occupational impact of symptoms attributable to service-connected disability. Critically, those symptoms attributable to disabilities of the shoulder, knee, bilateral feet have caused pain and postural limitations, limited significant use of the right arm, and necessitated the ongoing use of pain medication throughout the appeal period, and the evidence indicates that limitations associated with these conditions alone have essentially precluded even the performance of sedentary work. Accordingly, the Board finds the evidence in favor of the claim, and the appeal for entitlement to a TDIU prior to October 20, 2018 will be granted. Finally, the Board notes that the Veteran is not entitled to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), because the grant of TDIU contemplates the aggregate effect of all his service-connected disabilities, and he does not have a single disability evaluated at 60 percent or higher. See Bradley v. Peake, 22 Vet. App. 280 (2008). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.