Citation Nr: 21075989 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-15 748A DATE: December 22, 2021 ORDER Entitlement to a rating in excess of 50 percent for a right shoulder disability prior to May 18, 2011; from July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present, is denied. Entitlement to a total disability based on individual unemployability (TDIU) from July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present is granted. FINDINGS OF FACT 1. The Veteran has been entitled to the highest schedular rating for the residuals of non-dominant shoulder replacement throughout the appeal period, based on his June 2011 claim, for all periods when a temporary 100 percent rating was not in effect. 2. From July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present, the Veteran meets the schedular percentage requirements for TDIU due to a combined 60 percent rating for service-connected disabilities resulting from a common etiology with these disabilities also rendering him incapable of securing and following substantially gainful employment consistent with his education background and work history. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for a right shoulder disability prior to May 18, 2011; from July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present have not been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.71a, Diagnostic Code 5051. 2. The criteria for entitlement to TDIU from July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board remanded this matter in March 2018, January 2020, and March 2021, respectively, for further development, including the obtainment of outstanding private and VA medical records, as well as Social Security Administration (SSA) records, and the provision of an adequate VA examination. The RO has completed this additional development; therefore, there has been substantial compliance with the Board's prior remand directives. During the pendency of the appeal, rating decisions by the RO assigned a temporary 100 percent rating for the Veteran's total right shoulder arthroplasty surgery, effective May 18, 2011, which was then extended through June 30, 2012. Other temporary 100 percent ratings were assigned for follow-up corrective surgeries, effective from August 8, 2013 to September 31, 2014 and from July 24, 2019 to August 31, 2020. As such, the Board's jurisdiction for consideration of the Veteran's appeal is limited to the specific times during the appeal period when he was not assigned a 100 percent temporary rating, which was from July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present, as well as the one-year period prior to the June 2011 increased rating claim in accordance with 38 C.F.R. § 3.400(o). The Board notes that the evidence of record reflects that the Veteran was scheduled for a videoconference hearing before the Board in September 2016, but he cancelled his request by a letter dated August 2016. Thus, the hearing request is considered withdrawn. 1. Entitlement to a rating in excess of 50 percent for a right shoulder disability prior to May 18, 2011; from July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present, is denied. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's service-connected right shoulder disability has been rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5051, based on the residuals non-dominant shoulder replacement dating back several years prior to the applicable appeal period based on the Veteran's June 2011 claim. The Board notes the RO previously denied a rating in excess of 50 percent for the right shoulder in a January 2010 rating decision. VA did not receive new and material evidence, to include on a constructive basis, or a notice of disagreement within one year of the January 2010 rating decision; therefore, it is final. On June 30, 2011, the Veteran submitted a Statement in Support of Claim seeking a temporary 100 percent evaluation for a surgical procedure he underwent on May 18, 2011. In the September 2011 rating decision on appeal, the RO assigned a temporary 100 percent rating for the Veteran's right shoulder disability from the date of the May 2011 procedure until June 30, 2012, with a 20 percent rating effective thereafter on July 1, 2012. The Veteran filed a timely Notice of Disagreement (NOD) in December 2011, and the current appeal ensued. Subsequently, in March 2014, the RO increased the Veteran's right shoulder disability rating outside of his convalescence periods from 20 percent to 50 percent, noting the medical evidence of record reflects chronic residuals consisting of severe painful motion in the right shoulder. As such, with the exception of the temporary 100 percent ratings granted during his convalescent periods for his right shoulder, the Veteran's right shoulder disability has been rated at 50 percent throughout the appeal period, to include the one-year appeal period prior to his June 2011 claim. The Board acknowledges the evidence reflects that the Veteran has a severe shoulder disability, including chronic residuals from his total right shoulder arthroplasty surgery and subsequent corrective surgeries, all culminating into severe painful motion and movement; however, as previously noted, the Veteran has been in receipt of the schedular maximum 50 percent rating under Diagnostic Code 5051 throughout the appeal period based on his June 2011 claim, to include the one-year period prior to the claim. Rating the Veteran's right shoulder under any other applicable diagnostic code would not result in a higher rating. Only Diagnostic Code 5202 provides for a rating higher than 50 percent for impairment of a minor upper extremity. To warrant a 70 percent rating under 5202, the Veteran would have to have a loss of the head of the humerus, i.e., a flail joint, which the medical evidence does not demonstrate in this case. Finally, separate ratings for the right shoulder under Diagnostic Codes 5200 through 5203 would constitute impermissible pyramiding in this case. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Although his right shoulder disability was initially rated (20 percent) under Diagnostic Code 5203, which was appropriate for the status of his disability at the time and the maximum allowed under that diagnostic code, the Veteran was subsequently granted a higher rating of 50 percent under Diagnostic Code 5051 due to his surgeries. The Veteran's currently assigned 50 percent evaluation under Diagnostic Code 5051 contemplates all residuals of his right shoulder replacement surgeries, including but not limited to pain, limited motion, and weakness. Based on the above, the Board concludes that the criteria for a higher rating for the right shoulder outside of the periods that the Veteran was awarded a 100 percent temporary rating have not been met. The Veteran is already in receipt of the highest rating currently available under Diagnostic Code 5051. No other potentially applicable diagnostic code would result in a rating in excess of 50 percent. Assigning a separate rating for any manifestation of his right shoulder disability would constitute impermissible pyramiding. He has not lost use of his right hand or arm such that amputation is approximated. Thus, entitlement to a rating in excess of 50 percent for a right shoulder disability prior to May 18, 2011; from July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present is denied. 2. Entitlement to TDIU from July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present is granted. TDIU is an element of the Veteran's appeal of the rating assigned for his service-connected right shoulder disability because he has explicitly raised the issue of unemployability during the pendency of his appeal. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A 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. Entitlement to a TDIU is based on an individual's circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). A TDIU 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 that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The RO has denied TDIU based on a finding that the Veteran does not meet the schedular percentage requirements outlined in 38 C.F.R. § 4.16(a) during the portions of the appeal period when a temporary 100 percent rating has not been assigned; however, the Board finds the Veteran does indeed meet the schedular percentage requirements since the combination of the Veteran's evaluations for his right shoulder disability result in a combined 60 percent rating and are considered one disability for TDIU purposes due to their common etiology in accordance with 38 C.F.R. § 4.16(a). Specifically, the Veteran is currently service connected and in receipt of compensable ratings for total right shoulder arthroplasty to correct recurrent dislocation of right shoulder, including degenerative osteoarthritic changes (50 percent, effective July 1, 2012), painful scars of the right shoulder and right iliac crest associated with total right shoulder arthroplasty (10 percent, effective July 16, 2009) and right iliac crest, bone graft associated with total right shoulder arthroplasty (10 percent, effective December 23, 2011). Consequently, the Board finds that the Veteran meets the required 60 percent threshold based on the common etiology of his service-connected disabilities. The Board further finds the Veteran's service-connected disabilities have rendered him incapable of securing and following substantially gainful employment consistent with his education background and work history from July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present, warranting TDIU during these periods. In reviewing the evidence of record, the Board notes SSA records, which were recently received in September 2021, reflect the Veteran has been receiving SSA disability benefits throughout the appeal period. Although a nonservice-connected psychiatric disability appears to have factored into the award of SSA disability benefits, the Veteran's service-connected right shoulder disability was also a significant factor, even more so when viewed in light of his occupational history. Specifically, the record establishes the Veteran has worked almost exclusively as a warehouse worker and in the auto repair industry, which entailed laborious work, such as using heavy tools and equipment, including a forklift, lifting supplies and transporting them within the work area, all of which the Veteran reports he is unable to do as a result of impairment resulting solely from his service-connected right shoulder disability. As previously discussed, the evidence of record also includes corresponding surgical and treatment records for the Veteran's right shoulder disability, reflecting severe symptoms, such as chronic residuals consisting of painful motion, limited range of motion, and weakness. Based on a holistic view of all of the evidence, particularly in light of the Veteran's laborious past occupations, the Board finds that the Veteran's service-connected disabilities have at least as likely as not precluded him from securing and following substantially gainful employment from July 1, 2012 to August 7, 2013; from October 1, 2014 to July 23, 2019; and from September 1, 2020 to the present. The Board again notes the Veteran was entitled to a temporary 100 percent rating from May 18, 2011 to June 30, 2012; from August 8, 2013, to September 31, 2014 and from July 24, 2019, to August 31, 2020; therefore, consideration of TDIU is not warranted during these periods because the Veteran's only service-connected disabilities result from the right shoulder etiology. (CONTINUED ON NEXT PAGE) The Board also acknowledges the exception to the general effective date rules for increased compensation outlined in 38 C.F.R. § 3.400(o) that allow for an effective date up to one year prior to the date of claim if it is factually ascertainable that a definitive increase in disability occurred during that period, but there is no such evidence in this case. The record establishes the Veteran has had a severe chronic residuals of right shoulder replacement dating back several years prior to the appeal period. The AOJ awarded a temporary 100 percent rating dating back to the May 18, 2011 procedure based on the Veteran's June 2011 claim. Further, there was no change in the Veteran's employment status in the one-year period prior to the June 2011 claim, as the record establishes the Veteran had not worked for several years at that time. As a result, the exception to the general effective date rules for increased compensation outlined in 38 C.F.R. § 3.400(o) is not for application in this appeal. Nevertheless, the Veteran meets the requirements for TDIU for all periods after the date of his June 2011 claim for which a temporary 100 percent rating was not assigned. To that extent, his appeal is granted. L. S. Kyle Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. B. King, 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.