Citation Nr: 21022338 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-15 734 DATE: April 15, 2021 ORDER Entitlement to service connection for residuals of hernia is denied. Entitlement to a compensable rating for scar due to right hernia repair is denied. Prior to February 6, 2020, entitlement to a rating in excess of 10 percent for scar right shoulder as secondary to the service-connected disability of status post right shoulder total arthroplasty is denied. From February 6, 2020, entitlement to a 20 percent disability rating for scar right shoulder as secondary to the service-connected disability of status post right shoulder total arthroplasty is granted. Entitlement to an 80 percent disability rating on an extraschedular basis for the period prior to December 1, 2019 for status post right shoulder total arthroplasty, excluding the period of temporary total disability from October 4, 2018 to November 30, 2019, is granted. Entitlement to a 90 percent disability rating on an extraschedular basis for the period from December 1, 2019 for status post right shoulder total arthroplasty is granted. Entitlement to a total disability evaluation based individual unemployability due to service-connected disabilities (TDIU) prior to February 6, 2020 is granted. REMANDED Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. FINDINGS OF FACT 1. The preponderance of the evidence indicates that during the period on appeal or recent thereto, the Veteran has not had a current diagnosis for a hernia or hernia-related condition. 2. For the period on appeal, there is no evidence that the Veteran’s scar associated with right inguinal hernia repair is painful and/or unstable, and it does not measure at least six square inches (39 centimeters). 3. Prior to February 6, 2020, the preponderance of the evidence does not indicate that the Veteran had three or more unstable or painful scars, that any of his scars were painful and unstable, or that any scars were deep and nonlinear. 4. From February 6, 2020, the Board finds that the Veteran’s symptoms, reported as periodic itchiness and raised bumps, for his three documented scars are commensurate with pain and meet the criteria for a higher disability rating under DC 7804. 5. For the period prior to December 1, 2019, the Veteran is in receipt of the maximum schedular rating available for his right shoulder replacement disability without evidence of flail shoulder; however his symptoms and their severity are unusual and not adequately contemplated by the schedular criteria, excluding the period of temporary total disability from October 4, 2018 to November 30, 2019. 6. For the period from December 1, 2019, the Veteran is in receipt of the maximum schedular rating available for his right shoulder disability; however his right shoulder symptoms and their severity are unusual enough that they are not adequately contemplated by the schedular criteria and are commensurate with the level of disability expected from an amputation of the limb. 7. Prior to February 6, 2020, the preponderance of the evidence indicates that the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of hernia have not been met. 38 U.S.C. § 1110, 1131, 5103(a), 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.303, 3.307 2. The criteria for entitlement to a compensable rating for scar due to right hernia repair have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DC) 7800-7805. 3. Prior to February 6, 2020, the criteria for entitlement to a rating in excess of 10 percent for scar right shoulder as secondary to the service-connected disability of status post right shoulder total arthroplasty have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DC) 7800-7805. 4. From February 6, 2020, the criteria for entitlement to a rating of 20 percent for scar right shoulder as secondary to the service-connected disability of status post right shoulder total arthroplasty have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DC) 7800-7805. 5. The criteria for an 80 percent disability rating on an extraschedular basis for the period prior to December 1, 2019 for status post right shoulder total arthroplasty, excluding the period of temporary total disability from October 4, 2018 to November 30, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5051-5202. 6. The criteria for entitlement to a disability rating in excess of 80 percent on an extraschedular basis from December 1, 2019 for status post right shoulder total arthroplasty have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5051-5202. 7. The criteria for entitlement to a total disability evaluation based individual unemployability due to service-connected disabilities (TDIU) prior to February 6, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1971 to July 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an August 2019 hearing. In November 2019, the Board remanded the issues on appeal for additional development. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. The Board notes that service connection for sleep apnea, one of the issues remanded by the Board in its November 2019 decision, was granted by the RO in its July 2020 rating decision. As this constitutes a complete grant of the benefits sought, and the Veteran has not indicated any disagreement with the evaluation or effective date assigned, the Board will not consider the issue further. 1. Entitlement to service connection for residuals of hernia The Veteran asserts that his hernia residuals arose during or as a result of his active service. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the Veteran’s service treatment records (STRs) are negative for complaints, treatment, or diagnosis of hernia or hernia-related conditions. The Veteran’s VA and private treatment records reflect the Veteran having undergone hernia repair in 1971, but they are negative for complaints or treatment of hernias or hernia-related conditions in the 12-month period immediately following active service or during the period on appeal. The records are similarly negative for medical opinions supporting the Veteran’s claim. In June 2012, VA received the Veteran’s claim for service connection for a hernia condition. During his August 2013 VA examination for hernias, the VA examiner opined that it was at least as likely as not that the Veteran incurred a right inguinal hernia during service; however, the VA examiner found no hernia present at the time of the examination. During August 2019 Board hearing, the Veteran testified to experiencing increased pain and discomfort in the region of the hernia and that the feeling was the same as the feeling he had experienced during his earlier hernia. During the Veteran’s November 2020 VA examination for hernias, the VA examiner found the Veteran was negative for a current hernia or hernia residuals. The Veteran reported occasional discomfort or pain in his right groin area. The VA examiner opined that no diagnosis of chronic hernia or hernia residuals had been made. The Veteran’s body was within normal limits at the time of the examination, with subjective symptoms only. The Veteran had undergone hernia repair more than 40 years ago in 1971. Consequently, the examiner found it less likely than not that the claimed condition was related to active service. The examiner also found that the Veteran’s reported symptoms did not affect his ability to work. The Veteran has claimed that he experiences a hernia or residuals from his in-service hernia that arose during or because of his active service. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the August 2013 and November 2020 VA examination opinions and medical evidence of record. The Board finds the preponderance of the evidence is against the Veteran’s claim for service connection. While the Veteran claims that he has experienced pain or discomfort during the period on appeal similar to that which he experienced when he had a hernia during service, there is no objective evidence of any condition. The Veteran’s treatment records and both VA examinations are negative for any evidence of a current hernia or hernia-related residuals. While the August 2013 VA examiner opined that it was at least as likely as not that a hernia occurred in active service, they also found no evidence of a current hernia. Additionally, the November 2020 VA examiner found no evidence of functional impact that interfered with the Veteran’s ability to work. No medical opinion supports the Veteran’s claim. Lastly, the Board notes that the right inguinal hernia repair occurred in 1971, and the Veteran filed a claim for service connection in May 2012, more than forty years later. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran’s claim. Accordingly, the claim for service connection for residuals of hernia is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. A Veteran’s entire history is to be considered when assigning ratings. 38 C.F.R. § 4.1. Separate ratings can be assigned for separate periods of time during the claim period based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to a compensable rating for scar due to right hernia repair The Veteran asserts that his scar due to right hernia repair disability is more severe than is reflected by his current evaluation. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. Diagnostic Code 7801 Diagnostic Code 7801 provides that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a maximum 10 percent rating. Note (1) states that a deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7802 provides that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a maximum rating of 10 percent. Note (1) states that a superficial scar is one not associated with underlying soft tissue damage. Note (2) under that code provides that if multiple qualifying scars are present, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) for that code provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) under that provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under diagnostic code 7804, when applicable. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. In this case, during the Veteran’s August 2013 VA examination for hernias, the VA examiner noted that he had a scar from a hernia repair operation, but the scar was neither painful nor unstable and it was less than 6 square inches or 39 centimeters in area. The Veteran’s VA and private treatment records are also negative for evidence of the scar being painful, unstable, or growing in area. During the Veteran’s August 2019 Board hearing, he testified that the area where his hernia had been originally was occasionally painful or uncomfortable. During the Veteran’s February 2020 VA examination for scars, the VA examiner noted one right groin scar that measured 4 centimeters (cm) by 0.1 cm. The scar was neither painful nor unstable, and it did not interfere with the Veteran’s ability to work. Additionally, the scar was not found to be due to a burn or to be deep and non-superficial. While the Veteran is competent to observe his hernia scar symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his hernia scar symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The above evidence reflects that the Veteran’s hernia scar is superficial, not unstable or painful, is less than 6 square inches (39 cm) in area, and it does not have disabling effects. While the Veteran complained of occasional pain or discomfort in his groin area, he did not claim that the scar was painful or unstable, and the VA examinations and medical evidence of record do not indicate the scar is painful or unstable. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran’s claim. Accordingly, the criteria for a compensable rating are not met, and the claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for a compensable rating for hernia scars must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a rating in excess of 10 percent for scar right shoulder as secondary to the service-connected disability of status post right shoulder total arthroplasty The Veteran asserts that his right shoulder scar is more severe than is reflected by his current evaluation. The Veteran’s right shoulder scar is currently rated as 10 percent disabling under DC 7804. The scar rating criteria are described above. In this case, during the Veteran’s August 2013 VA examination for scars, the VA examiner noted two right shoulder scars that dated to 1972. Neither scar was painful, but both scars were found to be unstable. They were not due to burns and were found to be superficial and non-linear. One scar measured 24 by 2 cm, and the other measured 16 by 1.5 cm. The examiner found the scars prevented the Veteran from performing physical work. The Veteran’s VA and private treatment records are negative for evidence of symptoms that would support a higher or separate disability rating. During the September 2015 VA examination for shoulder and arm conditions, the VA examiner found that the Veteran had one scar related to his shoulder condition, which was not painful or unstable. In a January 2019 shoulder and arm condition Disability Benefits Questionnaire (DBQ) that was completed by a private physician, the physician did not note the presence of any scars. During the Veteran’s October 2019 VA examination for shoulder conditions, the VA examiner found that the Veteran did not have any scars related to his right shoulder condition and did not indicate whether any scars were unstable or painful. During the Veteran’s February 2020 VA examination for scars, the Veteran reported that his right shoulder scars itched, and bumps arose periodically. The examiner found three scars on the right upper extremity. They measured 28 by 3 cm, 18 by 2 cm, and 7 by 0.1 cm, giving a total area of 108.7 cm squared. None of the scars were unstable or unstable. None were due to burns, and none were deep or non-superficial. The VA examiner found that the scars did not affect the Veteran’s ability to work. While the Veteran is competent to observe his shoulder scar symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his shoulder scar symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The above evidence reflects that the Veteran’s shoulder scars are superficial, not painful, less than 144 square inches (929 square cm), and any disabling effects are already contemplated by his 10 percent disability rating. During the August 2013 VA examination, the examiner found that both of the Veteran’s shoulder scars were unstable; however, subsequent VA examinations did not reflect instability. By the time of the February 2020 VA examination, the Veteran had three scars on his right upper extremity, but none were found to be unstable or painful, although the Veteran did report periodic itchiness and occasional raised bumps. Under DC 7804, a 20 percent disability rating is available for three or four scars that are painful or unstable. The Board finds the Veteran’s reported symptoms commensurate with pain. Accordingly, a 20 percent rating under DC 7804 is granted; however, the evidence of record does not support a higher rating. The Veteran only has three scars, and none of them are unstable and painful. Accordingly, the criteria for a 20 percent rating, and no higher, are met from February 6, 2020, the day of the Veteran’s most recent VA examination. 4. Entitlement to a disability rating in excess of 60 percent prior to December 1, 2019 for status post right shoulder total arthroplasty, excluding the period of temporary total disability from October 4, 2018 to November 30, 2019, The Veteran asserts that his right shoulder condition is more severe than is reflected by his current staged disability ratings. The Veteran’s right shoulder disability was previously rated under DC 5201, and it is currently rated under DCs 5051-5202. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this regard, the Veteran underwent a shoulder replacement (prosthesis), 38 C.F.R. § 4.71a, Diagnostic Code 5051, and he has specific manifestations that serve as the basis for the evaluation under Diagnostic Code 5202 which pertains to other impairment of the humerus. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Accordingly, the appropriate Diagnostic Code was revised to 5051-5202. See Butts v. Brown, 5 Vet. App. 532 (1993). Under Diagnostic Code 5051, a minimum 30 percent rating is warranted for the major side. 38 C.F.R. § 4.71a. Replacements with intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to Diagnostic Codes 5200 and 5203. Id. Replacements with chronic residuals consisting of severe, painful motion, or weakness in the affected extremity warrant a 60 percent rating for the major side. Id. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Under both versions of February 7, 2021, the Veteran is already in receipt of a rating in excess of what is available under DC 5201 (a maximum of 40 percent). Accordingly, that diagnostic code will not be considered further. The normal range of motion of the shoulder is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. Under DC 5202, recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level warrants a 20 percent rating for the major side. 38 C.F.R. § 4.71a, DC 5202. Recurrent dislocation with frequent episodes and guarding of all arm movements warrants a 30 percent rating. Fibrous union of the humerus warrants a 50 percent rating in the major extremity. Nonunion of the humerus (false fail joint) warrants a 60 percent rating in the major extremity. Loss of head of the humerus (flail shoulder) warrants a maximum 70 percent rating for the minor extremity and a maximum 80 percent rating for the major extremity. Id. In this case, the Board briefly notes that the Veteran was in possession of the maximum rating available under DC 5051 after the 1-year period following implantation of the prosthesis. From February 6, 2020, he is in receipt of the maximum rating, 80 percent, available under DC 5202. Accordingly, the appeal for each period will involve consideration for an extraschedular increased rating. An extraschedular rating may be warranted in cases of (1) service-connected symptomatology that is not adequately contemplated by the rating schedule and (2) related factors such as marked interference with employment or frequent hospitalization, such that application of the regular schedular standards is rendered impractical. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). While the Board is precluded from assigning an extraschedular rating in the first instance, this issue was already referred to the Director of Compensation Services. Accordingly, the Board may now make its own determination, and it is not bound by the Director’s decision to not grant an extraschedular rating. See January 2021 VA memorandum. See Wages v. McDonald, 27 Vet. App. 233, 238 (2015); see also Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Per Kuppamala, the Board has the requisite experience to assign extraschedular ratings, as it considers the average impairment in earning capacity in every decision involving the rating schedule. Id. at 457. The Board may assign an extraschedular rating when appropriate and is only precluded from assigning an extraschedular rating “in the first instance.” Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term "in the first instance," the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. Kuppamala, 27 Vet. App. at 456. The Board notes that the Veteran’s claim for an increased rating was received in April 2014. For the period from October 1, 2015 to October 4, 2018, the Board finds that the Veteran’s assigned 60 percent evaluation does not adequately contemplate his symptoms. During the Veteran’s September 2015 VA examination for shoulder conditions, the Veteran’s range of motion (ROM) was limited to zero to 40 degrees for flexion and zero to 20 degrees for other forms of motion. He also complained of severe chronic pain. In a September 2015 Housebound VA examination, the examiner stated that the Veteran had no use of his right arm, problems with his grip, and an inability to perform basic daily activities. He required assistance with preparing meals, dressing himself, bathing, and tending to hygiene needs. In October 2018, the Veteran underwent a right shoulder reconstruction to attempt to alleviate his shoulder problems. The Veteran's right upper extremity is his major extremity. A rating or combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. See 38 C.F.R. § 4.68. Prior to the February 7, 2021 amendments, an amputation of the entire arm (major) was rated 90 percent disabling. See 38 C.F.R. § 4.71a, DCs 5120, 5121. After the February 7, 2021 changes, disarticulation (removal of the humerus only) was rated as 90 percent disabling and forequarter amputation (involving complete removal of the humerus along with any portion of the scapula, clavicle, and/or ribs) is rated as 100 percent disabling. Thus, the Veteran's combined rating for his right arm cannot exceed 90 percent as a matter of law, unless the Board found such a disability commensurate with forequarter amputation of the major upper extremity. Given the Veteran’s severe pain, extremely limited use of the limb, and the fact that it is his dominant arm, the Board find’s the Veteran’s symptoms for the October 1, 2015 to October 4, 2018 period to be commensurate with an eighty percent rating. The Veteran did retain a small degree of use of his arm, and no medical evidence suggests that the Veteran would have been as well off or better off with an amputation of the limb. The Veteran’s symptoms also appear to be less severe than those he experienced from December 1, 2019 onward. Accordingly, for the period from October 1, 2015 to October 4, 2018, an 80 percent extraschedular rating is assigned. To this extent, the appeal is granted. 5. Entitlement to a disability rating in excess of 80 percent from December 1, 2019 for status post right shoulder total arthroplasty For the period from December 1, 2019 onward, the Veteran’s right shoulder disability is rated as 60 percent disabling until February 6, 2020, when his rating was increased to 80 percent, as his latest VA examination found the Veteran was positive for flail shoulder. For the entire period from December 1, 2019 onward, the Board finds that the schedular criteria for DCs 5051 and 5202 do not adequately contemplate the Veteran’s symptoms. In a January 2019 Shoulder and Arm Disability Benefits Questionnaire (DBQ), the private physician found that the Veteran’s right upper extremity was affected by five different conditions: rotator cuff tendonitis, rotator cuff tear, glenohumeral joint osteoarthritis, glenohumeral joint dislocation, and shoulder joint replacement. The Veteran was unable to repetitively use his right shoulder due to instability and pain, as well as chronic dislocation. Muscle strength was 2/5 for flexion and abduction, and there was tenderness to palpation throughout the right shoulder. He made constant use of a splint to help keep his shoulder from dislocating. The physician described the Veteran’s condition as causing extreme chronic pain and repeated dislocations. He was unable to move his arm in a significant way, needed to keep his arm in a sling all day, and experienced flare-ups of pain. Additionally, the physician indicated that the Veteran had a moderate deformity in his right shoulder and was positive for loss of head of the humerus (flail shoulder). During the Veteran’s February 2020 VA examination for shoulder and arm conditions, the VA examiner found the Veteran was positive for flail shoulder. His initial ROM scores were zero to 30 degrees for all forms of motion in the right shoulder. Strength was 3/5 in the right shoulder, and there was tenderness to palpation. The Veteran reported severe chronic pain, and the examiner found that he was unable to use his right arm for any activity. In a December 2020 VA memorandum, it was recommended that an extraschedular rating be granted from December 1, 2019 onward. The Board agrees with this determination. As discussed above, the Veteran's right upper extremity is his major extremity. A rating or combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. See 38 C.F.R. § 4.68. Prior to the February 7, 2021 amendments, an amputation of the entire arm (major) was rated 90 percent disabling. See 38 C.F.R. § 4.71a, DCs 5120, 5121. After the February 7, 2021 changes, disarticulation (removal of the humerus only) was rated as 90 percent disabling and forequarter amputation (involving complete removal of the humerus along with any portion of the scapula, clavicle, and/or ribs) is rated as 100 percent disabling. Thus, the Veteran's combined rating for his right arm cannot exceed 90 percent as a matter of law, unless the Board found such a disability commensurate with forequarter amputation of the major upper extremity. The Board finds that the Veteran’s symptoms are not adequately contemplated by the relevant schedular criteria under DCs 5051 and 5202. These symptoms include the severity of the Veteran’s chronic pain, which is exacerbated by any activity, the repeated dislocations, the interference with sleep, the need to keep the arm in a sling or splint at all times, and his inability to use the arm in any significant manner. These factors lead the Board to conclude that an extraschedular rating is warranted; however, while the Board finds the Veteran’s symptoms commensurate with the level of severity of an amputation, it does not find that the disability is so severe that it approaches the severity of a forequarter amputation. As a disability rating for a right arm cannot exceed 90 percent for a disarticulation amputation as a matter of law, the Board is assigning an extraschedular 90 percent disability rating for the period from December 1, 2019 onward. To this extent, the appeal is granted. 6. Entitlement to TDIU prior to February 6, 2020 The Veteran asserts that his service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to February 6, 2020, his current effective date. The Board agrees and is granting TDIU for the entire period on appeal. During the period on appeal, the Veteran is service-connected for the following disabilities: right hernia scar, rated as noncompensable; right shoulder scar, rated as 10 percent disabling prior February 6, 2020 and 20 percent disabling thereafter; sleep apnea, rated as 50 percent disabling; and his right shoulder disability, which is rated at least 80 percent disabling during the entire period on appeal. Accordingly, the Veteran meets the criteria for schedular consideration for TDIU for the entire period on appeal. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing and following substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. § § 3.340, 3.341, 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. Under 38 C.F.R. § 4.16(a), if a veteran is only service connected for one disability, that disability must have a rating of 60 percent or more; if the veteran has two or more service-connected disabilities, at least one of those disabilities must have a rating of 40 percent or more, and the total combined rating of service-connected disabilities must be at least 70 percent. Disabilities affecting a single body system, or of a common etiology, shall be considered as a single disability. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation therefore may apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). In cases involving increases in disability compensation, the effective date shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination, hospitalization, or medical treatment. In a July 2015 Application for TDIU, the Veteran asserted that he last worked in 1987. The Board notes that the Veteran’s claim for an increased rating, from which his claim for TDIU stems, was received in April 2014. In a September 2015 Housebound VA examination, the examiner stated that the Veteran had no use of his right arm, problems with his grip, and he was unable to perform basic daily activities. He required assistance with preparing meals, dressing himself, bathing, and tending to hygiene needs. In an October 2019 buddy lay statement, the Veteran’s granddaughter asserted that the Veteran was unable to care for himself, and she needed to assist him with dressing, shaving, using the toilet, bathing, errands, and laundry. A February 2020 VA examination for sleep apnea indicated that the Veteran experienced chronic sleep problems and only slept for 4 hours per night on average. The examiner indicated that the Veteran could perform sedentary work. During the Veteran’s February 2020 VA examination for shoulder and arm conditions, the examiner indicated that the Veteran could perform sedentary work but no physical work; however, the examiner also noted that the Veteran’s right arm was his dominant arm, and he could not perform any activities with the arm, including basic daily activities. The other evidence of record, including lay statements and medical treatment records, indicate that the Veteran’s right shoulder disability would interfere or prevent him from performing most activities necessary for even sedentary work, such as driving, operating a computer, or filling out paperwork. The Board finds that the preponderance of the evidence indicates that the severity of the Veteran’s right shoulder disability renders him unable to secure or follow a substantially gainful occupation. See, e.g., October 2019 DBQ; August 2019 Board Hearing. Based on these facts, the claim for TDIU is granted for the entire period on appeal, dating to the claim received April 1, 2014. No other issues have been raised by the Veteran or by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND Entitlement to SMC based on aid and attendance is remanded. In this case, the Veteran’s TDIU was assigned based on the limitations imposed by the Veteran’s service-connected right shoulder disability, as discussed above. See also January 2021 rating decision. Accordingly, he now meets the criteria for consideration for SMC between the periods when he was assigned temporary 100 percent disability ratings for his right shoulder disability under 38 C.F.R. § 4.30 (DC 5051) and from December 1, 2019 onward. The Veteran’s most recent examination for housebound status is from December 2018. The Board find’s this information too remote in time to serve as competent evidence as to whether the Veteran remains housebound due to his service-connected disabilities. Additionally, more information is needed on whether the Veteran was housebound during the earlier periods in question. Accordingly, this claim must be remanded for a VA examination for housebound status and retrospective VA medical opinion. The matters are REMANDED for the following actions: 1. Obtain an examination for housebound status or permanent need for regular aid and attendance from December 1, 2019 onward as well as a retrospective medical opinion on the period from October 1, 2015 to October 4, 2018. If the examiner is not able to provide an opinion without examining the Veteran, the Veteran should be scheduled for an examination. All indicated tests and studies should be conducted. The examiner is requested to review the entire claims file. It is requested that the guides for conducting aid and attendance examinations be used, and that all clinical findings as to the service-connected disabilities be set forth in detail. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to undergo an examination. The VA examiner is requested to offer the following opinions for each period: (a.) Is it at least as likely as not (a probability of 50 percent or greater) that the service-connected disabilities (listed in a January 2021 rating decision) alone (1) render him so helpless as to require the regular aid and attendance of another person; or (2) result in physical or mental impairment that leave him substantially confined to his dwelling and immediate premises (with reasonable certainty that such disability or disabilities and resultant confinement will continue throughout his lifetime)? (b.) Is it at least as likely as not that the Veteran's service-connected disabilities, as a whole and without consideration of other disabilities, result in such impairment that it would require a higher level of care consisting of the daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home or other institutional care? (c.) The Board reiterates that the examiner should only ascertain if the Veteran meets the medical criteria for aid and attendance or is housebound based upon his service-connected disabilities alone. His nonservice-connected disabilities cannot be considered for the requested opinions. (d.) To assist in determining whether a service-connected disability amounts to “loss of use” the examiner should provide a detailed objective description of remaining function, quantitative assessment of strength, and description of any pain that affects use. If health care services of a skilled provider are needed, is the Veteran's current caregiver providing qualifying services (e.g., physical therapy, daily injections, placement of indwelling catheters, etc.) under a physician’s regular (at least monthly) supervision or the supervision of a licensed health care professional? If a relative or other member of the Veteran’s household performs personal health-care services, he or she must be a licensed health-care professional or be providing such care under the regular supervision of a licensed health care professional. 38 C.F.R. § 3.352(b)(4). The examiner must provide a thorough explanation for any opinions offered, citing to the examination findings or other evidence in the record when necessary to support the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.