Citation Nr: 21021470 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 10-24 599 DATE: April 13, 2021 ORDER Entitlement to a rating in excess of 20 percent for a left shoulder disability is denied. Effective March 2, 2009, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran is right-hand dominant; therefore, his right shoulder is the major extremity and his left shoulder is his minor extremity. 2. The preponderance of the evidence shows that the Veteran’s left shoulder rotator cuff tendonitis with various muscle and tendon tears has been manifested by limitation of left shoulder flexion and abduction resulting in a disability picture comparable to no worse than limitation of left shoulder flexion and abduction to shoulder level. 3. Since March 2, 2009, the Veteran’s service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.69, 4.71a, Diagnostic Code 5201. 2. Effective March 2, 2009, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1959 to May 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2017. This case was previously remanded by the Board in November 2019 for additional development. Specifically, in the November 2019 Board decision, entitlement to a 30 percent rating for right shoulder disability was granted, effective March 2, 2009, and entitlement to a rating in excess of 30 percent for right shoulder disability, after May 31, 2018, was denied. In light of the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations, the Board found new a VA examination should be provided addressing the Veteran’s left shoulder disability. Pursuant to Morgan v. Wilkie, the Board also remanded the matter for an examination to determine whether Veteran has a psychiatric impairment, to include sleep impairment, that is a manifestation of his bilateral shoulder disability. The Veteran was provided a Mental Disorders VA examination in December 2020, in which he was diagnosed with insomnia disorder, secondary to his service-connected rotator cuff tendonitis of the right shoulder. The VA examiner provided a positive nexus opinion regarding secondary service connection. Subsequently, the Veteran was granted service connection for insomnia disorder with an evaluation of 30 percent, effective June 14, 2010. See January 2021 Rating Decision. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 20 percent for a left shoulder disability The Veteran contends that he is entitled to a rating in excess of 20 percent for his left shoulder rotator cuff tendonitis with various muscle and tendon tears, evaluated under DC 5201. The Veteran is currently assigned a 20 percent rating for his left shoulder disability under 38 C.F.R. § 4.71a, DC 5201. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (DC 5200), limitation of motion of the arm (DC 5201), other impairment of the humerus (DC 5202), or impairment of the clavicle or scapula (DC 5203). Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. 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. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, as the evidence shows that the Veteran is right-hand dominant, his left shoulder is his minor shoulder for rating purposes. A rating under DC 5201 is warranted when the evidence demonstrates limitation of motion of either arm at shoulder level, or midway between side and shoulder level of the minor arm (20 percent); limited to midway between side and shoulder level for the major arm, or to 25 degrees from the side for the minor arm (30 percent); or limitation of motion to 25 degrees from the side for the major arm. (40 percent schedular maximum) 38 C.F.R. § 4.71a, DC 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. The revised VA regulations, effective February 7, 2021, clarify that limitation of motion of the arm under DC 5201 includes either flexion or abduction. The revised regulations also clarify that “shoulder level” equates to flexion and/or abduction limited to 90 degrees, “midway between side and shoulder level” equates to flexion and/or abduction limited to 45 degrees, and “To 25 degrees from side” equates to flexion and/or abduction limited to 25 degrees from side. The Board finds that a rating in excess of 20 percent for the Veteran’s left shoulder disability is not warranted. In the May 2018 VA shoulders examination, the Veteran reported flare-ups of the left shoulder as increased pain mostly at night while sleeping; he stated he was unable to sleep on his back due to breathing issues and has to roll side to side to shoulder and his is constantly uncomfortable. Initial range of motion testing showed left shoulder flexion limited to 110 degrees and abduction limited to 70 degrees. The Veteran was not examined immediately after repetitive use over time nor was he tested during a flare-up of his left shoulder. The Veteran was also afforded a VA examination post-remand to determine the current severity of his left disability in January 2021. The Veteran reported his shoulder disability has worsened, he has been treated with medication and periodic injections into his shoulder and the symptoms continue to worsen with any repetitive or overhead use of his shoulders. The Veteran reported flare-ups of the left shoulder as increased pain with any repetitive use or heavy overhead use of the shoulders. The examination found that the range of motion of the left shoulder was 0 to 80 degrees flexion and 0 to 80 degrees abduction. Range of motion for the shoulder did not contribute to a functional loss. Pain was noted on examination via flexion and abduction and there was objective evidence of moderate localized tenderness or pain on palpation of the anterior aspect. Upon observed repetitive use testing with at least three repetitions, the Veteran was able to perform without any additional loss of function or range of motion. The examiner noted pain did significantly limit functional ability with repeated use over time. And estimated range of motion of the left shoulder to be limited to 70 degrees flexion and 70 degrees abduction. The left shoulder was not examined during a flare-up; the examiner held that pain limited functional ability during flare-ups and estimated that, in terms of range of motion, the left shoulder would be limited to 60 degrees flexion and 60 degrees abduction during a flare-up. The examiner also noted that the Veteran’s left shoulder did not have any ankylosis, loss of head or malunion. There was a history of mechanical symptoms in both shoulders and Veteran was unable to perform the crank apprehension and relocation test. The Veteran was also noted to have osteolysis of both distal clavicles and some widening of AC joints in both shoulders. See January 2021 VA Shoulders Examination. The Board finds the results of the medical evidence, to include the January 2021 VA examination report, to be highly probative. The medical evidence shows the Veteran’s left shoulder has limitation of motion midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). The Board thus finds that even given his pain and functional impairment during flare-ups, the limitation of motion of his left shoulder is no worse than midway between side and shoulder level. As such, the Board finds that the Veteran’s left shoulder disability is adequately contemplated by the 20 percent criteria. Further, evaluation under DCs 5200, 5202, and 5203 are not appropriate as the examiner indicated that Veteran’s left shoulder did not have any ankylosis; dislocation, suspected labral pathology; clavicle scapula, acromioclavicular or sternoclavicular conditions suspected; loss of head; or malunion. Accordingly, the Board concludes that the preponderance of the evidence demonstrates that a rating in excess of 20 percent for Veteran’s left shoulder rotator cuff tendonitis is not warranted, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the claim for entitlement to a TDIU was picked up during Veteran’s February 2017 Board hearing. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran submitted a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in August 2017, which reflects that he has a high school education. He noted that his bilateral rotator cuff tendonitis disabilities prevented him from securing or following any substantially gainful occupation and stated that he last worked in 1992 when he was a supervisor at a church. The Veteran also submitted a VA 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits, in which he stated that he was last employed in May 1993 when he was completing maintenance work. In the December 2015 VA Shoulders Examination, the examination found that his disabilities impacted his ability to perform occupational tasks as he reported increased pain with activities that require him to hold his arms up and out from his body. In a September 2017 VA Shoulders Examination, Veteran reported he has been retired for many years, and his disabilities impact him in that he cannot lift overhead or lift over 10 lbs. in general. In Veteran’s shoulder examination from May 2018, the Veteran’s shoulder disabilities were noted to render Veteran unable to lift heavy objects as his hands went numb when held in flexed position of about 30-40 degrees such as when driving or resting on a table to use a computer or do paperwork. The May 2018 VA examiner also opined positively in stating that Veteran’s functional limitations due to his bilateral shoulder disabilities render him unable to perform any kind of gainful work in both the physical and sedentary job setting. See May 2018 VA Medical Opinion. In the January 2021 VA Shoulder Examination, the examiner also held that Veteran’s shoulders disability results in moderately severe impairment due to pain with any repetitive or overhead use of the arms/shoulders that limits a lot of activities. Veteran cannot repetitively raise his left arm above his head, nor can he lift more than a few pounds with his left arm. See January 2021 VA Shoulder Examination. Further, in the Veteran’s March 2021 Post-Remand Brief, he contends that his insomnia disorder coupled with his hearing loss also prevent optimal performance during employment, especially in the presence of background noise resulting in total communication failure or problems. The Veteran’s service connected disabilities include the left shoulder disability, rated at 20 percent disabling, right shoulder disability rated at 30 percent disabling, insomnia disorder rated at 30 percent disabling, hearing loss rated at 10 percent disabling, tinnitus rated at 10 percent disabling, and right shoulder scar rated at 0 percent disabling. The Veteran’s combined disability rating is 70 percent, effective June 14, 2010, and his disabilities meet the schedular criteria set forth in 38 C.F.R. § 4.16(a). Prior to that date, the Veteran’s service-connected disabilities did not satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(b), where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. Given the evidence regarding the severity of the Veteran’s service-connected disabilities, his high school education, the Veteran’s functional limitations due to these disabilities, and in light of his history, education, skill, work experience and training, and with resolution of all reasonable doubt in his favor, the Board finds that effective March 2, 2009, the evidence shows he is entitled to an award of a TDIU rating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, the Board finds that entitlement to a TDIU is warranted. The Board further finds, however, that entitlement prior to March 2, 2009, is not warranted because the Veteran’s service-connected disabilities do not meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) and the Board, as a finder of fact, does not find that this case warrants referral to the Director, Compensation Service, for extraschedular consideration. Here, the Board finds significant that the Veteran’s insomnia plays a role in the Veteran not being able to obtain and retain employment consistent with his education, training and work experience. Geib. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.