Citation Nr: 21024709 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 13-17 665 DATE: April 26, 2021 ORDER A rating higher than 20 percent for residuals of left shoulder fracture with status post left rotator cuff repair is denied. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities prior to September 15, 2016, is denied. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum rating provided under Diagnostic Code 5203 for residuals of left shoulder fracture with status post left rotator cuff repair and only exhibits slight impairment of function of muscle groups III and V. 2. Prior to September 15, 2016, the Veteran did not meet the schedular criteria for a TDIU based on his service-connected disabilities and the most probative evidence of record does not reflect that he was unemployable because of the service-connected disabilities in effect at that time. CONCLUSIONS OF LAW 1. The criteria for rating higher than 20 percent for residuals of left shoulder fracture with status post left rotator cuff repair have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5203; 38 C.F.R. § 4.73, Diagnostic Codes 5303 and 5305. 2. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities prior to September 15, 2016, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to April 1988. These matters come before the Board of Appeals for Veterans Claims (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in May 2011 and July 2011. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2016. A transcript is of record. The Board remanded the claims in May 2016. In an October 2017 rating decision, the RO granted entitlement to a TDIU effective September 15, 2016. The claims were remanded in May 2018 and June 2020. 1. A rating higher than 20 percent for residuals of left shoulder fracture with status post left rotator cuff repair 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. 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Service connection was originally established for residuals of left shoulder fracture with status post left rotator cuff repair in a March 1997 rating decision, which assigned a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5203 effective April 29, 1996. The rating was increased to 20 percent in a September 2000 rating decision under Diagnostic Code 5201 effective January 28, 2000. The Veteran filed a claim for TDIU that was received in November 2010; the May 2011 rating decision that is the subject of this appeal continued the 20 percent rating assigned to the residuals of left shoulder fracture with status post left rotator cuff repair under Diagnostic Code 5203. This appeal followed. The Veteran asserts that he is entitled to a rating higher than 20 percent for his left shoulder disability because he has difficulty lifting and experiences continuous pain in the shoulder despite continuous medication. He testified that he is right-hand dominant, that he has clicking, aches, and tingling in his left shoulder, and that he has trouble lifting, to include weight. When asked if he could reach above his head, the Veteran indicated verbally and visually that he could only raise his left shoulder to a little less than shoulder level before it starts to lock up and the pain breaks through. Diagnostic Code 5203 provides the rating criteria for impairment of the clavicle or scapula. Since the Veteran is already in receipt of the maximum rating provided under Diagnostic Code 5203 for his left shoulder disability, the assignment of a rating higher than 20 percent cannot be assigned under this diagnostic criterion. The Board has considered the other diagnostic criteria provided for the shoulder and arm to determine whether an increased rating is warranted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The remaining diagnostic codes, however, are simply not applicable to the service-connected left shoulder disability. Diagnostic Code 5200 does not apply because the left shoulder does not manifest ankylosis of scapulohumeral articulation and Diagnostic Code 5202 does not apply because there is no evidence of impairment to the humerus. Under Diagnostic Code 5201, a maximum 30 percent rating is warranted for limitation of the minor arm motion to 25 degrees from the side. Normal shoulder forward elevation (flexion) and abduction is from zero to 180 degrees, with 90 degrees representing shoulder level; normal shoulder external and internal rotation is from zero to 90 degrees. See 38 C.F.R. § 4.71a, Plate I. In this case, the Veteran has never exhibited left shoulder motion limited to 25 degrees from the side. Rather, he had flexion and abduction to 90 degrees during a January 2011 VA examination; to 70 degrees during a May 2019 VA examination; and flexion to 110 degrees and abduction to 80 degrees during a September 2016 VA examination. He also indicated verbally and visually at the time of his Board hearing that he could raise his left shoulder to a little less than shoulder level, which is well beyond 25 degrees of motion. Consideration has been given to 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca in determining whether a 30 percent rating is warranted under Diagnostic Code 5201, and the Board acknowledges that the Veteran exhibited pain with flexion, abduction and external rotation during the September 2016 and May 2019 VA examinations. He also testified that his left shoulder starts to lock up and the pain breaks through just below shoulder level when raised. However, he was able to perform repetitive use testing without additional loss of function or motion during the January 2011, September 2016 and May 2019 VA examinations and the May 2019 VA examiner determined that pain, weakness, fatigability and incoordination did not significantly limit functional ability with repeated use over a period of time. Since, at worst, the Veteran was able to achieve flexion and abduction 35 degrees greater than the amount needed to support the assignment of a 30 percent rating under Diagnostic Code 5201, a higher rating under that diagnostic code is not warranted in this case. The Board remanded the claim in May 2018 for a muscle injuries examination because the examiner who conducted the September 2016 VA examination reported that reduction in left shoulder muscle strength was entirely due to the diagnosed left shoulder condition, and the Board wanted to determine whether the Veteran may be more appropriately rated under a diagnostic code pertaining to muscle injuries involving the shoulder girdle or arm. The requested examination was conducted in November 2020 and muscle strength testing revealed strength of 4/5 for left shoulder abduction (group III) and left elbow flexion (group V). Evaluations of muscle injuries and their residuals are based on assessment of the impact of function of the muscle groups affected. Under Diagnostic Code 5303, ratings of 0, 20, 20 and 30 percent are assigned for slight, moderate, moderately severe, and severe group III muscle injury of the nondominant hand, respectively; under Diagnostic Code 5305, ratings of 0, 10, 20, and 30 percent are assigned for slight, moderate, moderately severe, and severe group V muscle injury of the nondominant hand, respectively. 38 C.F.R. § 4.73. Since the Veteran only exhibited a slight decrease in muscle strength for left shoulder abduction (group III) and left elbow flexion (group V) during the November 2020 VA examination, a rating higher than 20 percent is not warranted under Diagnostic Code 5303 or Diagnostic Code 5305 for his left shoulder disability. Moreover, as the functional impairment caused by muscle injuries involves overlapping symptomatology to orthopedic impairment (e.g., pain, limited motion, decreased strength), a separate rating is not warranted as it would violate the rule against pyramiding. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). In sum, the preponderance of the evidence supports the currently assigned 20 percent rating for the left shoulder disability. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has considered whether the Veteran’s disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1). The threshold factor is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111, 118 (2008).   The Veteran has requested an extraschedular evaluation of his left shoulder disability because the rating based on range of motion does not adequately represent the severity of the condition. He argued that he has difficulty lifting, experiences continuous pain in the shoulder, and takes pain medication for his shoulder, back and legs. Upon review, the Board finds that the first Thun element is not satisfied for the claimed disability, as the Veteran's left shoulder disability symptomatology is contemplated by the rating criteria. In this regard, the Court has found that a diagnostic code need not list every word or type of symptom to contemplate the functional loss associated with such disability. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Court has recently addressed the standard for extraschedular claims in Long v. Wilkie, No. 16-1537 (U.S. Vet. App. Dec. 30, 2020). Focusing on Thun's first step, the Court in Long explained that because an extraschedular determination is, by nature, fact bound and highly contextual, it should be approached as a totality of the factors inquiry that considers whether the veteran's symptomatology presents an impairment so exceptional that the rating schedule is not capable of assessing it in the first instance. Thus, the first step in Thun is not met simply because the symptoms of the disability are not considered in the rating criteria for that disability; rather, it is met when the impairment cannot be evaluated by the rating schedule. In this case, the Veteran’s complaints of pain and functional impairment are contemplated by the rating schedule criteria. As the symptoms related to the left shoulder disability do not present an exceptional disability picture, referral for extraschedular consideration is not warranted. 2. Entitlement to a TDIU prior to September 15, 2016 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. In reaching such a determination, 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 law provides that a total disability rating may be assigned where the schedular rating is less than total, when the 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, or if there are two or more 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. Entitlement to a TDIU was granted in an October 2017 rating decision effective September 15, 2016, when service connection was established for right and left lower extremity radiculopathy with femoral and cutaneous nerve involvement with separate 10 percent ratings. Prior to this date, the Veteran’s four service-connected disabilities of the left shoulder, lumbar spine and right and left lower extremities (radiculopathy with sciatic and common peroneal nerve involvement) were all rated as 20 percent disabling and the Veteran did not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.25. In the case of a veteran who is unemployable by reason of a service-connected disability, but who fails to meet the schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with equal rating of disability. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A VA Form 21-8940 received in November 2010 indicates that the Veteran reported his lower back, legs and left shoulder were the service-connected disabilities that prevented him from securing or following any substantially gainful occupation and that June 23, 2003, was the date that his disability affected full-time employment, he last worked full time, and that he became too disabled to work. The Veteran also reported that he had left his last job because of disability and that Social Security had determined he was totally and permanently disabled as a result of service-connected and other disabilities. He had completed high school and did not have any other training or education before or since becoming too disabled to work. In a December 2010 statement, the Veteran reported that he has not been able to work since July 2002 and that his service-connected and all total disabilities are sufficient without regard to pain and medication to prevent him from getting or keeping substantially gainful employment. He indicated that he was on nine different medications and several have warnings not to operate heavy machinery and his last job was heavy equipment operator. The Veteran reports that he was awarded Social Security Administration (SSA) benefits in 2006 backdated to 2002 and his service-connected disabilities factored significantly in the decision. The Veteran’s case was submitted to the Director of Compensation Service in May 2011 and a response was received in July 2011. The Director determined that the record did not support the notion that the Veteran is unemployable due exclusively to his service-connected disabilities and concluded that a TDIU on an extraschedular basis was not warranted. In a March 2016 statement, the Veteran’s attorney asserted that entitlement to a TDIU was warranted since the January 2011 VA examiner determined that the Veteran could not engage in sedentary or active gainful employment due to his lumbar spine, lower extremity radiculopathy and left shoulder disabilities. The Veteran testified in March 2016 that he had not worked since 2003 and that he was last employed as a heavy equipment operator in a gravel pit. He indicated that he believed he could not work at the time of the hearing purely because he could not stand or sit for very long and his left arm prohibited certain actions. The Veteran also indicated that all he knew was heavy equipment, road construction, gravel truck or truck driver, or lumber yard worker and that he could not do any of those things anymore. In a March 2018 statement, the Veteran’s attorney asserted that entitlement to a TDIU is warranted effective November 3, 2010, the date on which the Veteran indicated he was requesting a TDIU via phone call, because there is convincing evidence prior to September 15, 2016, that the Veteran was unable to work as a result of his service-connected disabilities. The attorney again points to the January 2011 VA examination as the basis for this assertion and further asserts that there is no evidence against the finding that the Veteran should have been awarded TDIU benefits. The attorney also asserts that the September 2016 VA examination findings are essentially the same as the January 2011 VA examination and although examiner did not explicitly state so, his description of the Veteran’s radiculopathy fits the definition of femoral cutaneous nerve radiculopathy and should be treated as if it was a diagnosis of lateral femoral cutaneous nerve radiculopathy. In a December 2018 statement, the attorney stressed that any difference between the January 2011 and September 2016 VA examination reports is insubstantial. Upon review of the record, the Board finds that the most probative evidence is against the claim for entitlement to a TDIU prior to September 15, 2016. The Board acknowledges that the Veteran has not worked at any time during the period on appeal prior to September 15, 2016. The medical evidence, however, does not support a finding that prior to September 15, 2016, the Veteran was not capable of performing the physical and mental acts required by employment or that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities (lumbar spine degenerative disc disease; residuals of left shoulder fracture with status post left rotator cuff repair; and bilateral lower extremity radiculopathy with sciatic and common peroneal nerve involvement). The Board acknowledges, as pointed out by the Veteran’s attorney, that the January 2011 VA examiner determined that the Veteran could not, at that time, engage in sedentary or active gainful employment due to severe disabling lumbar degeneration associated with bilateral lower extremity radiculopathy and left acromioclavicular (AC) joint separation. This opinion is not afforded high probative value because it does not consider the medical evidence of record that indicates nonservice-connected disabilities contributed substantially to the Veteran’s inability to perform the physical and mental acts required by employment. In that vein, records obtained from the SSA document that the Veteran filed his claim citing that he became unable to work because of his disabling condition on July 23, 2002. Treatment records document that it was on this date that the Veteran fell off a front end loader while at work and landed on his right side, sustaining a comminuted fracture of the right radial head and apparent traumatic rotator cuff tear and/or labral tear of the right shoulder. The Veteran filed a claim for workers’ compensation after this injury. SSA benefits were granted after a finding that the Veteran’s disability began on July 23, 2002, based on a primary diagnosis of chronic ischemic heart disease with or without angina and a secondary diagnosis of fractures of upper limb. In its decision, SSA noted severe impairments included coronary artery disease with residuals of myocardial infarction, residuals of right elbow fracture and reconstruction, residuals of right wrist surgery with hardware replacement, residuals of bilateral rotator cuff repair surgeries, lumbar spine degenerative disc disease, irritable bowel syndrome, hypertension, and adjustment disorder with mixed anxiety and depressed mood. SSA also determined that the Veteran was unable to perform even sedentary sustained work activities in an ordinary work setting on a regular and continuing basis. Specifically, while he could lift and carry a maximum of twenty pounds and could perform postural activities (climbing, balancing, stooping, crouching, kneeling, or crawling) occasionally except for never climbing ladders, ropes or scaffolds, he could not perform a combination of standing walking or sitting that would total eight hours in an eight hour workday due to pain; he could not do Any pushing, pulling or lifting with the dominant right arm; and he had moderate limitation in the abilities to concentrate and to tolerate frustration due to his mental impairment. The Board acknowledges the Veteran’s attorney’s assertion that there was evidence of lateral femoral cutaneous nerve radiculopathy affecting both lower extremities at the time of the January 2011 VA examination. The effective date of TDIU cannot be earlier than the effective date of the award of service connection for the disability or disabilities on which the award of TDIU is based. See Delrio v. Wilkie, 31 Vet. App. 58 (2019). In this case, service connection for lateral femoral cutaneous nerve radiculopathy affecting both lower extremities was not established until September 15, 2016, and the Veteran did not appeal the effective date assigned. Since the most probative evidence is against the claim, entitlement to a TDIU prior to September 15, 2016 is denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.