Citation Nr: 21006907 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-17 523 DATE: February 5, 2021 ORDER Entitlement to a rating in excess of 20 percent for service-connected postoperative recurrent left shoulder dislocation, Bristow repair with degenerative joint disease is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s left (non-dominant) shoulder dislocation, Bristow repair with degenerative joint disease is not manifested by limitation of motion to 25 degrees from side. 2. The Veteran’s service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for service-connected postoperative recurrent left shoulder dislocation, Bristow repair with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to January 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board. In October 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. These matters were remanded in March 2016 and January 2019 for further development. A July 2020 rating decision awarded service connection for residual scar of the left shoulder. A noncompensable evaluation was assigned from June 17, 1996. This issue is not currently before the Board as the Veteran has not expressed disagreement with this decision. Regardless, scar symptoms to support a compensable rating are not shown. 1. Entitlement to a rating in excess of 20 percent for service-connected postoperative recurrent left shoulder dislocation, Bristow repair with degenerative joint disease The Veteran contends that a higher rating is warranted for his left shoulder disorder. He filed the current claim in May 2011. A 20 percent rating has been assigned throughout the appeal period. 38 C.F.R. § § 4.71a, Code 5201. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In addition, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all the facts should be examined to determine the date the disability first manifested. Accordingly, the effective date for an increased rating, initial rating, or staged rating is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence must be considered, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (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. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. 38 C.F.R. § § 4.69. The Veteran is right-hand dominant; thus, his service-connected left shoulder disability involved his minor extremity. Shoulder disabilities are rated under Codes 5200 to 5203. Under DC 5201, for limitation of motion of the minor shoulder and arm, a 20 percent rating is warranted when range of motion is limited at shoulder level or to midway between side and shoulder level and a 30 percent rating is assigned when range of motion of the arm is limited to 25 degrees from the side. 38 C.F.R. § § 4.71a. Code 5200 contains the criteria for rating ankylosis of scapulohumeral articulation. Under DC 5202, for other impairment of the humerus for the minor shoulder and arm, malunion (marked or moderate deformity) warrants a 20 percent rating, recurrent dislocation is rated at 20 percent; and fibrous union of the humerus is rated at 40 percent; nonunion of the humerus is rated 50 percent; and a loss of the humerus head is rated at 70 percent. Id. Under DC 5203, for impairment of the clavicle or scapula of the minor shoulder and arm, malunion or nonunion without loose movement warrant a 10 percent rating, nonunion with loose movement or dislocation warrant a maximum rating of 20 percent. Id. Normal range of motion of the shoulder is set forth in 38 C.F.R. § § 4.71, Plate I. Normal forward elevation, or flexion, is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees. 38 C.F.R. § § 4.71, Plate I. Initially, the Board notes that applicability of Codes 5200, 5202, and 5203 have been considered. The March 2020 VA examiner found no ankylosis or clavicle or scapula impairment. Shoulder instability, dislocation or labral pathology was suspected, but the symptoms necessary for a separate compensable rating under 5202 are not shown. As the evidence of record does not show that pathology or separate and distinct symptoms required for ratings under such Codes (ankylosis, impairment of the humerus, impairment of the clavicle or scapula) was present during the evaluation period, the Board finds that these Codes do not have applicability in this matter. 38 C.F.R. § § 4.71a. With respect to Diagnostic Code 5201, the examination reports and treatment records do not demonstrate (and the Veteran does not assert) that limitation of motion of the arm more nearly approximates 25 degrees from the side so as to warrant the next higher 30 percent rating for the minor arm. The June 2014 VA examination showed full strength on shoulder abduction and forward flexion. The Veteran reported that flare ups resulted in limited motion, tenderness, and aching. Scars were noted, but they were not painful, unstable, or greater than 39 square cm. Reduced range of motion was noted with flexion 0 to 75 degrees, abduction 0 to 60 degrees, external rotation 0 to 70 degrees, and internal rotation 0 to 70 degrees. The examiner stated bursitis is acute and likely temporary with the decreased range of motion likely to improve as the acute bursitis does. The limitations were unlikely due to service-connected degenerative joint disease. The examiner opined that the Veteran’s shoulder condition did not impact his ability to work. The June 2016 VA examination showed abnormal range of motion of the left shoulder with flexion 0 to 45 degrees, abduction 0 to 45 degrees, external rotation 0 to 50 degrees, and internal rotation 0 to 50 degrees. There was no evidence of pain with weight bearing. The Veteran reported pain in shoulder is constant and he is unable to clean floors and overhead work secondary to pain and weakness. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. There was a reduction in muscle strength to 3/5 for forward flexion and abduction. The examiner found no ankylosis, no rotator cuff condition, no shoulder instability, dislocation or labral pathology suspected, no clavicle, scapula, acromioclavicular joint and sternoclavicular joint conditions, and no conditions or impairments of the humerus. The examiner opined the Veteran could only do supervisor work. He was employed as contractor for janitorial company. At the March 2020 VA examination, the Veteran reported pain in his left shoulder was constant and he was unable to clean floors or reach overhead because of pain and weakness. He reported increased pain when he drives his car. The examination showed abnormal range of motion of the left shoulder with flexion of 0 to 35 degrees, abduction 0 to 40 degrees, external rotation 0 to 5 degrees, and internal rotation of 0 to 5 degrees. There was evidence of pain with weight bearing. The Veteran was not able to perform repetitive use testing with at least three repetitions due to flare up pain. His range of motion during a flare up was assessed as remaining the same. There was no ankylosis, no rotator cuff conditions, no clavicle, scapula, acromioclavicular joint and sternoclavicular joint conditions, and no conditions or impairments of the humerus. Shoulder instability, dislocation or labral pathology was suspected, but there was no history of recurrent dislocation. The examiner opined that due to the amount of daily left shoulder pain and limited range of motion, the Veteran would likely need to work a shortened workday. Considering the evidence of record, the Board finds that the Veteran's left shoulder disability approximates a 20 percent rating under DC 5201, but no higher. The record does not contain limitation of motion to 25 degrees from side even with consideration of symptoms such as pain. All VA examination reports noted range of motion well in excess of 25 degrees from side. The Board has considered the Veteran’s reports of pain; however, the 2020 VA examiner assessed there was no additional range of motion lost during flare-ups. As such, an increased rating above 20 percent for his left shoulder disability is not warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) At the October 2015 Board hearing, the Veteran raised the issue of entitlement to a TDIU rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an October 2015 application for increased compensation based on unemployability, the Veteran stated his service-connected shoulder disability prevents him from securing or following any substantially gainful occupation since October 1, 2015. Total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38C.F.R. § 4.15; see also 38 C.F.R. § 3.340 (a). Consideration may be given to the Veteran's level of education, special training and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38C.F.R. §§3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). TDIU may be assigned where the schedular rating is less than 100 percent, 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 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 C.F.R. §§ 3.340, 3.341, 4.16 (a). However, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Thus, if a veteran fails to meet the schedular requirements above, an extraschedular rating is for consideration where the veteran is nonetheless unable to secure or follow a substantially gainful occupation due to service-connected disability. Id.; see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Board may not grant a TDIU on an extraschedular basis in the first instance. The matter must be referred to the Director of the Compensation Service (Director) for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The schedular requirements are not met. Throughout the appeal period, the Veteran’s service-connected left shoulder disability and scar, his only service-connected disabilities have been rated 20 percent and 0 percent, respectively. Accordingly, the Board's analysis at this stage is limited to whether referral for TDIU to the Director is warranted to consider the claim on an extraschedular basis under § 4.16(b). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). The Board will refer the matter to the Director under § 4.16 (b) only if the Board determines that there is plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. The record shows the Veteran has some work activity during the period at issue. The evidence includes lay statements from the Veteran’s supervisor stating that he can no longer perform many tasks due to the pain of his left shoulder. However, the 2016 VA examiner noted that the Veteran could do supervisor work and employability limitations focused on overhead work and lifting above shoulder level or objects over 10 pounds. The March 2020 VA examiner opined the Veteran would likely need to work a shortened workday. Here, the most probative and persuasive evidence of record does not suggest that during the period on appeal the record contains plausible evidence that the Veteran was unable to secure or follow a substantially gainful occupation due to his left shoulder disability. Social Security Administration records shows work was impacted by lumbar spine and cardiovascular impairments and was silent as to the left shoulder. Accordingly, the Board finds that referral for extraschedular consideration is not warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sowden, 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.