Citation Nr: 21006912 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 09-00 265A DATE: February 5, 2021 ORDER Entitlement to an extraschedular disability rating of 40 percent, for post-operative anterior right shoulder dislocation with osteoarthritic changes (right shoulder disability) is granted. Entitlement to an extraschedular disability rating of 40 percent, for left shoulder recurrent dislocation status post-surgery with arthritis (left shoulder disability) is granted. FINDING OF FACT The Veteran’s right and left shoulder disabilities have resulted in substantial interference with his ability to work, and the schedular rating criteria do not reasonably describe the disability picture of his right and left shoulder disabilities, as it does not account for the continuous worsening of his conditions. CONCLUSIONS OF LAW 1. The criteria for an extraschedular rating of 40 percent for the Veteran’s right shoulder disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.71a, Diagnostic Code 5201. 2. The criteria for an extraschedular rating of 40 percent for the Veteran’s left shoulder disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1979 to June 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, in a June 2004 decision, the Board granted a 30 percent rating for each shoulder but then remanded these claims to provide the Veteran additional information in fulfillment of the duty to notify, attempt to obtain additional records, and afford the Veteran additional VA examinations. The Agency of Original Jurisdiction (AOJ) has done so. The Board denied these claims in a December 2013 decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), the parties indicated that the Veteran did not challenge the Board’s decision with regard to increased schedular ratings and agreed to vacate the Board’s decision with regard to extraschedular ratings and remand the case to the Board for additional development. The JMR was incorporated by reference in a Court order dated in September 2014. The Board denied these claims again in a February 2015 decision. The Veteran again appealed the Board’s decision to the Court. In a July 2016 memorandum decision, the Court vacated the Board’s decision and remanded the case to the Board for additional development. These issues were remanded by the Board in February 2017 to afford the Veteran an additional VA examination and to refer these issues to the Director of the Compensation Service for extraschedular consideration. In March 2019, the Board issued a decision denying the Veteran’s claim for an extraschedular disability rating for his bilateral shoulder disabilities. Thereafter, the Veteran filed a motion for revision due to clear and unmistakable error. In July 2020, the Board issued a decision vacating the March 2019 Board decision. This decision was vacated because the Veteran had submitted additional evidence, including private medical treatment records, but the evidence was not associated with the claims file until July 2019, after the Board’s decision denying the Veteran’s claims. The Board, on its own motion, vacated the March 2019 decision and remanded the matters for RO consideration of the new evidence in a supplemental statement of the case in the same month. The Board notes that both shoulders have been evaluated at the 30 percent rate since July 22, 1997, except for periods of temporary total evaluations assigned under 38 C.F.R. § 4.30 at different intervals. The Board’s focus in this decision is on the underlying 30 percent ratings assigned since July 22, 1997. Generally, disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA’s Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA’s Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. 38 C.F.R. § 3.321(b)(1). Such a rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board did so in this case in January 2013 and August 2017. The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thun describes the three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating for that service-connected disability is inadequate. Second, if the schedular rating does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate the Veteran’s disability picture, and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service, to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. Thun, supra. The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). As explained in detail below, the Board finds that the record shows extraschedular evaluations are warranted. See 38 C.F.R. § 3.321(b)(1). Here, in compliance with the Board’s February 2017 Remand directives, this matter was referred to the Director of Compensation and Pension for a determination on whether extraschedular evaluations were warranted for the right and left shoulder disabilities. The August 2017 Memorandum to the Director regarding, specifically, the matter of extraschedular consideration, determined that the evidence does not show reports of frequent hospitalizations. Therefore, the extraschedular determination turns on whether the bilateral shoulder disabilities present an unusual disability picture with such related factors as marked interference with employment so as to render impractical the application of the regular schedular standards. The ultimate recommendation of the Director was that regular schedular standards have been rendered practical. Specifically, it was noted that there was no evidence of frequent periods of hospitalization or evidence of marked evidence of inconsistencies in the Veteran’s employment reports. The Board notes the record contains evidence to support a finding of an extraschedular rating for both the right shoulder disability and left shoulder disability individually. First, in the October 1998 VA examination report, the examiner noted that the Veteran was post-surgical repair of both shoulders but was found to have continued dislocations and marked limitation of motion bilaterally. See October 1998 VA Compensation and Pension Examination for Joints. The medical treatment records note that the Veteran continued to experience recurrent dislocations in his left shoulder, and in 2002 the right shoulder had just undergone a fourth surgery for dislocations with arthritic changes See August 2002 VA Compensation and Pension Exam. Then, in January 2003, the right shoulder was noted to still have functional loss, tender, weakness, instability, and fatigability. See January 2003 VA Compensation and Pension Exam. As for employment, the January 2007 VA examiner noted that the Veteran’s usual occupation was as a truck driver, but he was not currently working because his bilateral shoulder disabilities interfere with his driving. See January 2007 Compensation and Pension Examination Joints. Later that same year, the Veteran’s private physician noted that the Veteran had difficulty accepting his limitations in both shoulders and opined that the prospect of returning to driving a truck for employment was not likely due to his right shoulder disability and left shoulder disability. See August 2007 Private Garman & Proffitt Physical Therapy Note. In addition, the May 2012 VA examiner noted that the Veteran’s bilateral shoulder disabilities prevented the Veteran from working in any physical capacity, even sedentary employment at that point. See May 2012 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). It was also noted by the March 2017 VA examiner that the Veteran was unable to continue his employment as a driver because his bilateral shoulder disabilities prevented him from passing a physical. See March 2017 Shoulder and Arm Conditions DBQ. The examiner provided a medical opinion where he explained that the Veteran’s bilateral shoulder disabilities cause him chronic pain, extensive limitations related to lifting, holding any item of any weight, and the Veteran’s profession as a driver would be impossible due to limitations in range of motion of his shoulders. See March 2017 VA Medical Opinion DBQ. In addition to the above, the Board notes that the Veteran has undergone numerous surgeries of both shoulders and has continued to make complaints of and seek treatment for his bilateral shoulder disabilities during the entire period on appeal. Moreover, in July 2019, the Veteran’s bilateral shoulders were noted to have recurrent instability, severely limited motion and function, severe grinding, and crepitus. See July 2019 Private Sentara Martha Jefferson Hospital Progress Note. After a review of the evidence, and resolving all doubt in favor of the Veteran, the Board finds that an extraschedular disability rating of 40 percent for the right shoulder disability and an extraschedular disability rating of 40 percent for the left shoulder disability are warranted. The Board finds that the evidence in this case does show an exceptional disability picture regarding the right and left shoulder disabilities rendering the assigned schedular evaluations inadequate. The Veteran’s noted instability, chronic pain, fatigability, functional loss, and limitations of weight, lifting, and movement throughout the entire appeal period are not fully contemplated by the rating criteria. Additionally, the record does in fact support a finding that the Veteran’s bilateral shoulder disabilities prevent him from working as a driver, or in any other position. Specifically, the Veteran was unable to secure employment as a driver since he was unable to pass a physical due to his bilateral shoulder disabilities. Therefore, the Board finds the Veteran’s bilateral shoulder disabilities resulted in additional impact in his ability to maintain employment. In regard to the guidance as to any standard for assigning an extraschedular rating for bilateral shoulder disabilities that have resulted in interference with employment, but which have not resulted in a maximum schedular rating under the Diagnostic Code, per the holding in Kuppamala the standard for assessing an appropriate extraschedular rating, if any, is whether there was “average impairment in earning capacity” significant enough to warrant an extraschedular rating. Id. at 453-4. However, the Board also acknowledges that it is for the very reason of impact on earning capacity that service connection was established, and compensable ratings assigned under the schedular criteria in the first place. See 38 C.F.R. § 4.1. In this case, although the various examinations have not shown the Veteran to meet the schedular criteria beyond 30 percent for either his right shoulder disability or left shoulder disability, it is clear that his disabilities result in interference with employment due to the inability to pass a physical, instability, chronic pain, fatigability, functional loss, and limitations of weight, lifting, and movement. Thus, in light of the foregoing, and resolving doubt in favor of the Veteran, the Board finds that a 40 percent extraschedular rating is appropriate for the Veteran’s right shoulder disability for the entire appeal period. Also, the Board finds that a 40 percent extraschedular rating, but no more, is appropriate for the Veteran’s left shoulder disability for the entire appeal period. To this extent, the appeal is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.