Citation Nr: 21010587 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-56 274 DATE: February 25, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for right shoulder disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 1, 2011 is dismissed as moot. Entitlement to a TDIU from June 1, 2011 is granted. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran’s right shoulder disability has not limited his motion to midway between the side and shoulder level; neither the Veteran’s flexion nor abduction is limited to 45 degrees. 2. From April 6, 2011 to May 31, 2011, the Veteran was in receipt of a 100 percent rating for his right shoulder disability with additional disabilities independently ratable at 60 percent or more. 3. From June 1, 2011 to July 9, 2012, resolving doubt in favor of the Veteran, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5201. 2. The claim of entitlement to TDIU is moot prior to June 1, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. The criteria for TDIU have been met from June 1, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to May 1989 with additional service in the Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2012 and April 2013 rating decisions. In January 2019, the Board denied the issue of entitlement to a disability rating in excess of 20 percent for right shoulder acromioclavicular degenerative joint disease, status post arthroscopic. The Veteran appealed the denial, and in January 2020, the United States Court of Appeals for Veterans Claims (the Court) granted a November 2019 Joint Motion for Partial Remand (JMPR) filed by the parties and remanded the issue for action consistent with the terms of the joint motion. In August 2020, the Board remanded the matters for further development. The Board finds that there has been substantial compliance with the Board’s former remand and the matters are ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to an initial rating in excess of 20 percent for right shoulder disability is denied. The Veteran seeks an initial rating in excess of 20 percent for his right shoulder disability. The Veteran’s right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5201. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Prior to February 7, 2021, Diagnostic Code 5010, for arthritis due to trauma, instructs that the disability is to be rated as degenerative arthritis, under Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis substantiated by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. Diagnostic Code 5201 applies to limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Effective February 7, 2021, Diagnostic Code 5010 for post-traumatic arthritis instructs that the disability should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. Effective February 7, 2021, the criteria for limitation of motion of the arm under Diagnostic Code 5201 was revised to clarify that limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran’s claims file contains Sharp-compliant VA medical opinions. The Veteran filed his claim of service connection for right shoulder disability in April 2011, the day before his scheduled April 6, 2011 right shoulder arthroscopy at a VA facility. A December 2012 rating decision granted service connection for the right shoulder disability as secondary to left shoulder disability. The disability was rated 100 percent from April 6, 2011 based on a period of convalescence following the right shoulder arthroscopic, and 20 percent from June 1, 2011. The Veteran underwent VA examination in October 2012. The Veteran reported pain and limitation of motion. The Veteran reported flare-ups requiring the use of medications for relief. Range of motion testing showed flexion to 80 degrees and abduction to 70 degrees. Repetitive use testing did not show additional limitation of motion. The VA examiner noted less movement than normal, weakened movement, and pain on movement. The VA examiner noted no ankylosis of the glenohumeral articulation. There was no history of recurrent dislocation of the scapulohumeral joint. The Veteran underwent VA examination in March 2013. The VA examiner noted the Veteran’s right shoulder acromioclavicular degenerative joint disease status post arthroscopic decompression. The Veteran reported pain and limitation of movement. The Veteran reported flare-ups which became so severe that he relied on nonsteroidal anti-inflammatory drugs for relief. Range of motion testing showed flexion to 80 degrees and abduction to 70 degrees. Repetitive use testing did not show additional limitation of motion. The VA examiner noted functional impairment from less movement than normal, weakened movement, and pain on movement. The VA examiner noted no ankylosis of the glenohumeral articulation. There was no history of recurrent dislocation of the scapulohumeral joint. The Veteran underwent VA examination in June 2019 relating to his left shoulder. The June 2019 VA examiner also examined the Veteran’s right shoulder. The Veteran reported flare-ups from physical activity which result in pain at a level of 6 out of 10 approximately 5 times a month for 2-3 days. The Veteran reported pain from lifting over 10 pounds or lifting overhead and from prolonged walking. Range of motion testing showed flexion to 160 degrees and abduction to 90 degrees. The VA examiner noted pain with flexion and abduction but no evidence of pain with weight-bearing. Repetitive use testing did not result in additional limitation of motion. Passive range of motion was the same as active range of motion. The VA examiner opined that pain limits functional ability with repeated use over a period of time and that the Veteran’s flexion would be limited to 160 and his abduction to 85 degrees in such situations. The VA examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups and did not result in additional limitation of motion. The VA examiner noted no ankylosis and no malunion of the humerus. The Veteran underwent additional VA examination in December 2020. The Veteran reported limitation of motion and pain and that he has to work at waist level to accomplish tasks. He reported that he cannot work or reach overhead. He reported that he has flare-ups with use that make him stop doing tasks. He reported that some days the pain keeps him from working with his shoulder at all. The Veteran reported that with use the pain and limitation of motion are worse and he has to stop tasks. He reported that with flare-ups there are some days he cannot use his arms. Range of motion testing showed flexion to 80 degrees and abduction to 80 degrees. Passive range of motion was the same as active range of motion. Repetitive use testing did not result in additional limitation of motion. The VA examiner opined that pain, fatigue, weakness, and lack of endurance caused functional loss with repeated use over a period of time and during flare-ups resulting in flexion and abduction limited to 60 degrees. The VA examiner noted that the Veteran’s limitation of motion limits tasks overhead and pushing, pulling, and lifting. The VA examiner noted no ankylosis, no malunion of the humerus, and no dislocation. The December 2020 VA examiner also provided a retrospective opinion about the severity of the Veteran’s flare-ups at the time of his March 2013 VA examination. The December 2020 VA examiner opined, based on the Veteran’s reports and the information in the March 2013 VA examination report, that the Veteran’s flexion and abduction would be limited to 60 degrees during flare-ups. The Veteran’s treatment records show complaints of shoulder pain and limitation of motion. A June 2017 private treatment record notes full, pain-free range of motion for the right shoulder. In a May 2011 statement, the Veteran reported that he cannot lift his arm above his shoulder without terrible pain and that getting dressed also causes pain. He reported taking medication to relieve pain with activity. In a July 2012 statement, the Veteran’s friend noted the Veteran is always in pain and cannot raise his arms past his chest. Viewing the lay and medical evidence as a whole, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right shoulder disability. The evidence of record shows that the Veteran is right-handed. See December 2020 VA Examination Report. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, fatigue, weakness, lack of endurance, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements regarding flare-ups would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level (in other words, limitation of flexion or abduction to 45 degrees). Range of motion testing in the October 2012, March 2013, June 2019, and December 2020 VA examinations showed flexion limited to at worst 80 degrees and abduction limited to at worst 70 degrees. The June 2019 VA examiner opined that the Veteran’s flexion would be limited to 160 and his abduction to 85 degrees with repeated use over time. The December 2020 VA examiner provided both current and retrospective opinions, explaining that the Veteran’s flare-ups would further limit flexion and abduction to 60 degrees during flare-ups currently and retrospectively. The VA examiner considered the Veteran’s reports and the medical records in providing such an opinion. The Veteran’s representative argues that the Veteran’s statements during the December 2020 VA examination that with flare-ups he has to stop doing tasks and that some days he cannot use his arms are not adequately reflected in the VA examiner’s opinion that the Veteran’s range of motion is limited to 60 degrees. However, the Veteran’s statements are not specific regarding the type of functional impairment he experiences during flare-ups and whether he stops performing tasks to avoid pain or is unable to continue. The Veteran has not reported that his flexion or abduction is limited to midway between the side and shoulder level, or 45 degrees. Rather, in statements submitted by the Veteran, the Veteran has reported that he cannot lift his arm above his shoulder and his friend reported that the Veteran cannot raise his arms past his chest. These statements are in accord with the opinion of the December 2020 VA examiner. Considering the Veteran’s statements in light of the evidence as a whole, the evidence does not show right shoulder disability more closely approximating the criteria for a 30 percent or higher rating. The evidence as a whole does not show limitation of the right arm to midway between the Veteran’s side and shoulder level, or approximately 45 degrees. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. There is neither humerus malunion with marked deformity nor recurrent dislocation of humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements. Nor is there ankylosis of scapulohumeral articulation, favorable, abduction to 60 degrees, can reach mouth and head. See Diagnostic Codes 5200, 5202. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for right shoulder disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU prior to June 1, 2011 is dismissed as moot. 3. Entitlement to a TDIU from June 1, 2011 is granted. The Veteran seeks entitlement to TDIU prior to July 9, 2012, the current date of his entitlement to TDIU. A May 2020 rating decision granted TDIU effective July 9, 2012, the date the Veteran filed his TDIU application. However, since the TDIU claim arises from the Veteran’s right shoulder rating claim, the Board will consider whether TDIU is warranted beginning April 5, 2011. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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. § 4.16(a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. In this case, from April 6, 2011 to May 31, 2011, the Veteran was in receipt of a 100 percent rating for his right shoulder disability with additional disabilities independently ratable at 60 percent or more. The Veteran was therefore in receipt of special monthly compensation (SMC) during that time period, which is the maximum amount of benefits. Accordingly, his claim for TDIU during that time period is moot. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Veteran’s claim for TDIU prior to June 1, 2011 will therefore be dismissed as moot. The Board will consider entitlement to TDIU from June 1, 2011 to July 9, 2012. From June 1, 2011 to July 9, 2012, the Veteran met the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a). At that time, he was in receipt of service-connected benefits including a 50 percent rating for left shoulder disability, a 20 percent rating for right shoulder disability, a 30 percent rating for painful surgical scars, and a noncompensable rating for linear scars, with a combined rating of 80 percent. The remaining inquiry is whether the Veteran’s service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation during that time. Resolving all reasonable doubt in favor of the Veteran, the Board concludes they did and, therefore, TDIU is warranted. The Veteran has a high school diploma with some college education. The Veteran worked as a vehicle mechanic and ammunition specialist in service. After service, the Veteran worked in automotive retail for car dealerships, including as a sales manager. He reported that he left that job due to his left shoulder disability as he could not crawl under cars and do other tasks required by the job. The evidence also shows that the Veteran has owned and operated a plant nursery. The August 2012 left shoulder VA examiner noted the Veteran’s reports of difficulty sleeping, showering, dressing, and doing routine household chores due to his left shoulder condition as well as complaints of constant paresthesias down his arm. The Veteran reported that he had not worked since his left shoulder surgery in 2005. The VA examiner opined that the Veteran has markedly limited range of motion in his left shoulder which would prevent him from performing most jobs requiring physical labor requiring lifting, the use of tools, or assuming awkward positions but not sedentary employment because the Veteran had full use of his right arm. A February 2013 VA examiner noted that the August 2012 VA examiner did not consider the Veteran’s right shoulder disability as the examination was for the left shoulder. An October 2012 VA examiner evaluated the Veteran’s right shoulder and noted the Veteran’s overhead, repetitive, and heavy lifting activities were significantly limited. The February 2013 VA examiner opined, based on the October 2012 VA examination, that the Veteran’s shoulders would limit his ability to do physical labor and should have little to no impact on his sedentary abilities. Later VA examiners opined the Veteran’s shoulder disabilities limit tasks overhead, pushing, pulling, and lifting, repetitive actions, and walking for prolonged periods due to increased pain when walking from his shoulders. See March 2013, June 2019, and December 2020 VA Examination Reports. In a May 2011 statement, the Veteran reported that he cannot work for anyone else because he is too much of a liability and has limited capability due to his disabilities. He noted pain with getting dressed, lifting his arms above his shoulders, or sitting in chairs without proper arm support. The Veteran has reported significant impairment in dressing, lifting, and driving. He also reported that he is unable to lift and extend his arms to successfully complete clerical tasks such as typing and filing due to his shoulder limitations. He reported that his frequent surgeries and convalescence periods also inhibit his ability to maintain gainful employment. He also reported that his strong pain medications (including Tramadol) for his shoulders interfere with his ability to safely drive and cause a certain amount of “cloudiness” to his overall judgment and thought process. He submitted materials regarding the side effects of these medications, which note that Tramadol may impair thinking and that a person should avoid driving or operating machinery until knowing how the medication will affect them. The Veteran’s VA treatment records confirm that the Veteran was prescribed Tramadol for his shoulder pain during the relevant time period. See, e.g., October 2011 VA Treatment Record. Given the Veteran’s combined physical and mental functional impairment due to his service-connected disabilities, including the Veteran’s bilateral upper extremity limitations with pushing, pulling, lifting, repetitive actions, and assuming awkward positions, and mental limitations from medication, including impaired thinking and impact on ability to drive or operate machinery, and considering his occupational history, the Board finds the evidence is in equipoise as to whether the Veteran’s service-connected disabilities prevented him from securing and maintaining gainful employment prior to July 9, 2012. Accordingly, entitlement to a TDIU for the period from June 1, 2011 to July 9, 2012 is granted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.