Citation Nr: 21023725 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-19 441 DATE: April 21, 2021 ORDER A disability rating in excess of 20 percent for right shoulder impingement syndrome is denied. A total disability rating based on individual unemployability (TDIU) is granted. VETERAN’S CONTENTIONS The Veteran contends that the signs and symptoms associated with his right shoulder impingement syndrome are more severe than is reflected in the currently assigned disability rating. The Veteran contends that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment, entitling him to a TDIU. FINDINGS OF FACT 1. The Veteran's right shoulder impingement is not productive of limitation of motion midway between side and shoulder level, limitation of motion to 25 degrees from side, ankylosis of scapulohumeral articulation, other impairment of the humerus, or impairment of the clavicle or scapula. 2. The Veteran's service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for right shoulder impingement are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5201-5019. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2009 to May 2013. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Los Angeles, California. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in May 2017. The transcript of the hearing has been associated with the claims file. The Board notes that in October 2018 the Board remanded the Veteran’s claim to obtain an additional VA examination addressing flare-ups and repetitive use over time. Subsequently, an additional VA examination was scheduled in August 2019 for which the Veteran’s notification letters were returned as undeliverable and the Veteran was documented as a "no show". The Veteran eventually contacted VA with his updated address in March 2020. However, the Board notes that the VA examinations of record already contain information regarding repetitive use over time and despite the prior Board remand, the Veteran has consistently denied flare-ups. Further, the Veteran has not indicated that his disability has worsened since his last VA examination. Therefore, the Board finds that a remand for an additional attempt to schedule an examination is unnecessary and doing so would serve no useful or meaningful purpose and only instead result in unnecessarily imposing additional burdens on VA with no potential benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, the Board finds there is sufficient evidence to make a decision on the claim. The issue of entitlement to a TDIU has been raised by the evidence of record, to include as part and parcel of the increased rating claim. Thus, it is presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a disability rating in excess of 20 percent for right shoulder impingement syndrome Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. Id. Currently, the Veteran is in receipt of a 20 percent rating for right shoulder labrum tear under Diagnostic Code 5201-5019. 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. Under Diagnostic Code 5019 for bursitis, bursitis will be rated under limitation of motion of the affected parts, as arthritis, degenerative. 38 C.F.R. § 4.71a. Under Diagnostic Code 5201, limitation of motion of the arm (major joint) at shoulder level is rated as 20 percent disabling; limitation of motion of the arm (major joint), midway between side and shoulder level is rated as 30 percent disabling; and limitation of motion of the arm (major joint) to 25 degrees from the side is rated as 40 percent disabling. 38 C.F.R. § 4.71 (a), Diagnostic Code 5201. The evidence of record reflects that the Veteran is right-handed, and therefore his right shoulder is the major joint. In this regard, the evidence of record includes a January 2014 VA examination report in which the examiner documented that the Veteran denied flare-ups. Upon examination, the Veteran demonstrated right shoulder flexion to 180 degrees with painful motion at 180 degrees and right shoulder abduction to 180 degrees with painful motion at 180 degrees. The examiner documented functional loss and/or functional impairment of the shoulder and arm but indicated that the Veteran did not have additional limitation in range of motion of the shoulder and arm following repetitive-use testing. The examiner documented right shoulder flexion to 180 degrees and right shoulder abduction to 180 degrees after repetitive-use testing. The examiner further documented that the lift-off subscapularis test was positive, indicating possible subscapularis tendinopathy or tear, but the Veteran did not have an AC joint condition or any other impairment of the clavicle or scapula, history of recurrent dislocation (subluxation) or the glenohumeral (scapulohumeral) joint, or ankylosis and muscle strength testing was normal. The evidence of record also includes an October 2015 VA examination report in which the examiner documented that the Veteran reported four years of right shoulder pain which caused difficulty of shoulder movement as well as shooting pain from the AC joint to the distal portion of his shoulder/upper arm. The Veteran further reported functional loss or functional impairment manifesting as limitation due to pain with weightlifting, pushing, and pulling. The Veteran denied flare-ups. Upon examination, the Veteran demonstrated right shoulder flexion to 180 degrees and right shoulder abduction to 180 degrees. The examiner documented pain on examination which caused functional loss of the shoulder and arm, evidence of pain with weight bearing, and objective evidence of localized tenderness or pain on palpation of the superior GH joint, AC joint but indicated that there was no evidence of crepitus. The examiner indicated that there was additional loss of function or range of motion after three repetitions. Described in terms of range of motion right shoulder flexion was limited to 175 degrees and right shoulder abduction was limited to 175 degrees after repetitive-use testing. The examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. Described in terms of range of motion right shoulder flexion was limited to 175 degrees and right shoulder abduction was limited to 175 degrees after repetitive-use testing. The examiner further documented that the lift-off subscapularis test was positive, indicating possible subscapularis tendinopathy or tear, and right shoulder flexion and abduction with active movement against some resistance, but indicated that the Veteran did not have an AC joint condition or any other impairment of the clavicle or scapula, history of recurrent dislocation (subluxation) or the glenohumeral (scapulohumeral) joint, or ankylosis. The Veteran’s VA treatment records are void of any evidence that the Veteran’s right shoulder impingement should be rated in excess of 20 percent. As stated above, limitation of motion of the arm (major joint), midway between side and shoulder level is rated as 30 percent disabling; and limitation of motion of the arm (major joint) to 25 degrees from the side is rated as 40 percent disabling. 38 C.F.R. § 4.71 (a), Diagnostic Code 5201. The Veteran has not demonstrated limited motion to midway between side and shoulder level in the right shoulder/arm, to warrant a rating of 30 percent; or limitation of motion to 25 degrees from side, to warrant a rating of 40 percent. 38 C.F.R. § 4.71a, DC 5201. Thus, even considering pain on repetitive use, a disability rating in excess of 20 percent for the right shoulder impingement is not warranted. In reaching the above decision, the Board has also considered whether the Veteran's right shoulder impingement presents any additional manifestations that would warrant the assignment of a separate rating. However, the record is negative for ankylosis of the scapulohumeral articulation, other impairment of the humerus, or impairment of the clavicle or scapula. 38 C.F.R. § 4.71a, Diagnostic Codes, 5200, 5202, 5203. Indeed, none of the foregoing was noted on the January 2014 and October 2015 VA examination reports. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) A TDIU is granted where a veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that service connection has been established for depressive disorder NOS (rated as 70 percent disabling); right shoulder impingement (rated as 20 percent disabling); lumbar spine strain (rated as 10 percent disabling) and bilateral tinnitus (rated as 10 percent disabling). The Veteran has two or more disabilities, with 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). Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16 (a). After reviewing the evidence of record, the Board finds that the Veteran's service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation. In this regard, the record reflects that the Veteran earned a high school diploma and completed some college coursework. Since service, the Veteran reported primary employment working in car sales and performing odd jobs. Regarding his current ability to obtain and maintain substantially gainful employment, the evidence of record includes a September 2014 written warning for improper conduct/behavior from the Veteran’s former employer which documented that the Veteran got confrontational with a customer who later submitted a formal complaint. The evidence of record also includes a September 2014 final warning for improper conduct/behavior from the same employer which documented that the Veteran used foul language and spoke to his manager in a very threatening manner. In October 2014 the Veteran received a Notice of Termination of Employment from the employer. Turning to the medical evidence of record, a January 2014 VA examiner indicated that the Veteran’s shoulder disability impacts his ability to work. A July 2014 VA examiner indicated that the best description of the Veteran’s service-connected psychiatric impairment was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner further indicated that the Veteran had difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. An October 2015 VA examiner indicated that the Veteran’s right shoulder disability impacts his ability to perform any type of occupational task in that he is limited with excessive pushing and pulling, throwing, overhead reaching, and overhead lifting and carrying of heavy loads with the right arm. In an October 2020 Counseling Record-Narrative Report a Vocational Counselor indicated that the Veteran’s service-connected disabilities significantly contributed to his inability to obtain and maintain suitable employment. Specifically, due to the limitations of his service connected disabilities, the counselor determined that the Veteran is unable to engage in physical job duties to include but not limited to lifting, prolonged standing and prolonged walking without adequate time to rest. These limitations preclude the Veteran from employment in occupations for which he has previous training/work experience. Based upon the above, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working in car sales and performing odd jobs. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.