Citation Nr: 21015478 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-43 701 DATE: March 17, 2021 ORDER Entitlement to an initial rating greater than 20 percent for left shoulder strain with shoulder impingement, slap tear status post subacromioplasty (left shoulder disability) is denied. Entitlement to service connection for left hip osteoarthritis (left hip disability) is granted. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran's left shoulder disability does not more nearly approximate limitation of motion of the arm to 25 degrees from side, even when considering functional impairment caused by factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint. 2. The evidence is at least evenly balanced as to whether the Veteran’s left hip disability had its onset in service. 3. The Veteran’s service-connected disabilities prevent him from securing and following a substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating greater than 20 percent for left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. 2. The criteria for service connection for left hip disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a TDIU due to service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to February 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied entitlement to service connection for left hip osteoarthritis and granted service connection for left shoulder strain with shoulder impingement, SLAP tear status post subacromioplasty with an evaluation of 10 percent effective October 31, 2014. In March 2016 the Veteran filed a notice of disagreement (NOD) as to his left hip disability and disagreed with the initial rating assigned to his left shoulder disability. In July 2017 the RO issued a statement of the case (SOC) and in August 2017 the Veteran filed a substantive appeal (via VA Form 9). In November 2018 the Veteran submitted a separate service connection claim following his left hip surgery. In response, the RO issued a rating decision in January 2019 which denied entitlement to service connection for the Veteran’s left hip disability. As the Veteran’s appeal for left hip disability was already pending during this time, the January 2019 decision will not be discussed herein. The Board notes that additional evidence was received subsequent to the issuance of the July 2017 SOC. However, at the December 2020 Board hearing the Veteran waived RO jurisdiction on any new material submitted in support of the appeal. Therefore, the Board may proceed to adjudicate the appeal, and remand for issuance of a supplemental statement of the case is unnecessary. See also See 38 U.S.C. § 7105(e)(1) (previously in effect) (providing that additional evidence submitted to the Board after the substantive appeal is subject to initial review by the Board). Higher initial rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Left shoulder disability Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. VA must, in some circumstances, consider functional loss in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45. In determining if a higher rating is warranted, pain alone does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance as provided in 38 C.F.R. §§ 4.40 and 4.45. Id. The rating criteria for evaluating disabilities of the shoulder distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. The record on appeal establishes that the Veteran is right-handed and the injured left shoulder will be considered the non-dominant hand for rating purposes. Under 38 C.F.R. § 4.71a and DC 5201, an evaluation of 20 percent for the minor extremity requires limitation of arm motion at shoulder level or midway between side and shoulder level; a 30 percent rating requires limitation of arm motion to 25 degrees from side. Normal shoulder motion is defined as zero to 180 degrees of forward elevation (flexion), 0 to 180 degrees from the side of the body out to the side (abduction), and zero to 90 degrees of internal and external rotation. See 38 C.F.R. § 4.71, Plate I. In determining whether a Veteran has limitation of motion to shoulder level, it is necessary to consider reports of both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). A January 2021 VA examiner conducted range of motion (ROM) testing which revealed flexion and abduction ended at 180 degrees. Both external and internal rotation ended at 90 degrees. The VA examiner noted that when asked to remove his shirt he had full flexion and abduction. The VA examiner noted that there was objective evidence of localized tenderness or pain on palpation of the joint or associated with soft tissue on the anterior shoulder. There was no evidence of pain with weightbearing and the Veteran was able to perform repetitive-use testing with at least three repetitions with no additional functional loss. The VA examiner noted that the Veteran did not report flare-ups. A February 2015 VA examiner conducted ROM testing which revealed flexion and abduction ended at 180 degrees. External rotation ended at 70 degrees and internal rotation ended at 90 degrees. The Veteran was able to perform repetitive use testing with painful movement and he exhibited pain during weightbearing. The VA examiner noted that repetition causes increased impairment with pain in lifting and reaching. The VA examiner noted that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups but did not estimate ROM measurements. At the December 2020 Board hearing the Veteran testified that he experiences painful flare-ups in his left shoulder and can lift some light weights at the gym but other days he cannot do anything. The RO rated the Veteran’s left shoulder disability based on 38 C.F.R. § 4.59 which allows for consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Since the Veteran demonstrated painful motion of the arm at the shoulder, a 20 percent was assigned under DC 5201. A 20 percent rating is the minimum compensable rating for the shoulder joint based on limitation of motion as there is no 10 percent rating. See Sowers v. McDonald, 27 Vet. App. 472, 481-82 (2016) (noting that while there is a 10 percent rating available for the shoulder across all diagnostic codes, a 20 percent rating is the minimum compensable rating for the shoulder for limitation of motion). For the following reasons, an initial rating greater than 20 percent is not warranted. Even considering the Veteran's lay statements regarding pain and the corresponding functional impairment, the evidence of record is not reflective of, or consistent with, motion limited to 25 degrees from the side. At worst the Veteran’s ROM measured flexion and abduction at 180 degrees with internal rotation to 70 degrees and external rotation to 90 degrees. More information as to functional impairment during this period would not overcome this large gap from the specified motion loss. Thompson v. McDonald, 815 F.3d 781, 785 Fed. Cir. 2016) ("[I]t is clear that the guidance of 38 C.F.R. § 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 [or 4.73] criteria."). Accordingly, an initial rating greater than 20 percent for the Veteran's left shoulder disability is not warranted. The Board is cognizant of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The Veteran did not report flare-ups and the January 2021 VA examination is compliant with Sharp v. Shulkin in that an opinion contemplating flare-ups is not required when the Veteran does not report flare-ups. The November 2015 and January 2021 VA examinations also show that the Veteran’s left shoulder disability does not result in functional impairment consistent with the criteria under DCs 5200 (ankylosis), 5202 (impairment of humerus), and 5203 (impairment of clavicle or scapula resulting in malunion, nonunion, or dislocation). Thus, a separate rating under any of these DCs is not appropriate. For the foregoing reasons, the preponderance of the evidence is against an initial rating greater than 20 percent for the Veteran’s left shoulder disability. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record) 2. Left hip disability Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). A September 2018 private treatment note indicates that the Veteran underwent left total hip arthroplasty with a preoperative diagnosis of end-stage osteoarthritis of the left hip. Thus, a current left hip disability has been demonstrated. The Veteran contends that his left hip disability is secondary to his service-connected left knee disability. In the alternative, at the December 2020 Board hearing the Veteran testified that he hurt his left hip in a motorcycle accident while in service. Throughout the appeal period, analysis of the Veteran's claim has focused on whether his left knee disability caused or aggravated the Veteran’s left hip disability and he has not been provided a VA medical opinion as to whether service connection is warranted on a direct basis. As noted by the Veteran at the July 2019 Board hearing, there is evidence that the Veteran's left hip disability began in service. A direct theory of entitlement was not fully considered previously, however, all theories of entitlement reasonably raised by the evidence of record must be considered. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). An August 1975 service treatment record (STR) indicates that the Veteran was in a motorcycle accident where he hurt his left shoulder. It is clear from this note that the Veteran fell on the left side of his body and therefore the Veteran’s claimed left hip injury is consistent with the places, types and circumstances of the Veteran’s service, and is competent and credible. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran’s current left hip disability and an in-service injury or disease or whether the Veteran’s service-connected left knee disability caused or aggravated his left hip disability. A May 2015 VA examiner opined that the Veteran’s left hip disability is less likely than not proximately due to or the result of the Veteran’s service-connected left knee disability. The VA examiner explained that there is not a clear connection between the Veteran’s knee injuries and his hip problems. The VA examiner explained that the Veteran’s left hip symptoms began to arise about the same time as his motorcycle accident to his left leg in 1993 following his military discharge. The May 2015 VA examiner’s opinion is of no probative value as it is based partially on the finding that the Veteran’s motorcycle accident happened in 1993 when his STRs indicate that it occurred in 1975. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) The Veteran contends that his left hip disability was present in service, and he is competent to report the onset and persistent nature of his symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). There is nothing in the claims file to indicate that the Veteran's statements as to the onset of his left hip pain in service and that it was continuous or recurrent since service are not credible. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Thus, the Board finds that the lay statements as to experiencing left hip pain during service with continuity of symptomatology since service are competent and credible. While the Board could again remand the claim for yet another medical opinion, such action could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above evidence is sufficient to decide the claim, as it is at least evenly balanced as to whether the Veteran's current left hip disability is related to his in-service motorcycle accident. As this reasonable doubt must be resolved in the Veteran’s favor, entitlement to service connection for left hip disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In the present case, the Veteran is in receipt of service connection for migraines rated 50 percent disabling with a combined disability rating of 80 percent, effective October 31, 2014. Thus, the Veteran has met the percentage requirements for a TDIU for the entire appeal period. The remaining question is whether the Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Regarding the Veteran’s employability, in the December 2020 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) the Veteran reported that he last worked in December 2017. The Veteran stated that he experiences 17 to 20 migraines a month and that during flare-ups he has to find a quiet and dark place where he can lie down. These flare-ups cause him to feel exhausted and nauseous. Due to the chronic pain in his hip, knees, back and shoulder the Veteran cannot sit or stand for periods longer than 25 minutes at a time. In a February 2021 letter, the Veteran stated that he started his own technological company and from May 24, 2012 through December 30, 2016 he tried to work 20 hours a week which became increasingly difficult. The Veteran has kept his business open in name only in the hope that he would eventually return to work. At the December 2020 Board hearing the Veteran testified that he is retired and that he is unsure if he could work due largely to his migraines. The Veteran has indicated that he is self-employed, however, his service-connected disabilities prevent him from working a full-time schedule and he does not generate any income from this job. For purposes of entitlement to TDIU, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. Generally, marginal employment shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16(b). Marginal employment may be held to exist on a "facts found basis" even when earned annual income exceeds the poverty threshold, including but not limited to "employment in a protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16(b). As the Veteran is not generating any income from his self-employed position, it does not preclude him from entitlement to a TDIU. Further, a Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Moreover, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Id. at 1354. The Veteran has a well-developed educational and occupational history, having completed four years of college and earned up to 100,000 dollars a year as an IT manager. The Veteran has started a business which provides IT services and the Veteran has indicated that would be capable of working from home. However, the severity of the Veteran’s migraines and orthopedic disabilities prevent him from working a full schedule, as he is constantly in physical pain or taking time to mitigate residual effects from his migraines. Therefore, his service-connected disabilities render him unable to secure or follow substantially gainful employment and entitlement to a TDIU is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.