Citation Nr: 21025261 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 11-30 700 DATE: April 27, 2021 ORDER Entitlement to a disability rating of 30 percent, but no higher, for right shoulder disability is granted. Entitlement to a combined evaluation greater than 60 percent, effective April 16, 2009, greater than 30 percent, effective August 12, 2009, greater than 80 percent, effective January 26, 2010, and greater than 90 percent, effective May 19, 2010 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period from April 16, 2009 to August 12, 2009 is granted. REMANDED Entitlement to a TDIU for the period from August 12, 2009 to January 26, 2010 is remanded. FINDINGS OF FACT 1. The Veteran is ambidextrous; his right shoulder, the injured hand, is his major extremity. 2. When considering the Veteran’s pain and corresponding functional loss, including during flare-ups, the weight of the competent and probative evidence demonstrates that the limitation of motion of the right shoulder is midway between side and shoulder level or abduction limited to 45 degrees. 3. Beginning April 16, 2009, the Veteran’s combined evaluation for his service-connected pseudofolliculitis and cardiomegaly is 60 percent; beginning August 12, 2009, his combined evaluation for his service-connected pseudofolliculitis and cardiomegaly is 30 percent; beginning January 26, 2010, his combined evaluation for his service-connected pseudofolliculitis, cardiomegaly, and PTSD is 80 percent; beginning May 19, 2010, his combined evaluation for his service-connected pseudofolliculitis, cardiomegaly, PTSD, and right shoulder disability is 90 percent. The noncompensable rating for service-connected hypertension, effective June 3, 2010 does not change the combined rating. 4. For the period from April 16, 2009 to August 12, 2009, it is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 30 percent, but no higher, for right shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to a combined evaluation greater than 60 percent, effective April 16, 2009, greater than 30 percent, effective August 12, 2009, greater than 80 percent, effective January 26, 2010, and greater than 90 percent, effective May 19, 2010 have not been met. 38 C.F.R. §§ 4.25, 4.26. 3. The criteria for entitlement to a TDIU for the period from April 16, 2009 to August 12, 2009 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1971 to May 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from numerous rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded by the Board in January 2017 and December 2020 for additional development. Regarding the issue of entitlement to a higher combined rating, the Board has recharacterized the issue as stated above to reflect the grant of 30 percent for the Veteran’s service-connected right shoulder disability, effective May 19, 2010. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint’s range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. 1. Entitlement to a disability rating of 30 percent, but no higher, for right shoulder disability. The Veteran contends that his right shoulder disability is more disabling than contemplated. The Veteran’s disability is rated at 20 percent disabling under Diagnostic Code 5201, effective May 19, 2010. 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 medical evidence shows that the Veteran is ambidextrous, his right shoulder, the most injured extremity, is his major shoulder for rating purposes. See VA Examination, January 2021. Under Diagnostic Code 5201, the major shoulder is rated as follows: limitation of motion to shoulder level (i.e. 90 degrees) warrants a 20 percent rating; motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion) warrants a 30 percent rating; and motion limited to 25 degrees or less from the side is rated at 40 percent. 38 C.F.R. § 4.71a. 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. Effective February 7, 2021, the new regulation provided clarification for Diagnostic Codes 5201 and 5202, stating that limitation of motion of the arm includes either flexion or abduction, shoulder level is 90 degrees, and midway between the side and shoulder level is 45 degrees. Normal forward flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that the Veteran’s right shoulder disability most closely approximates a 30 percent rating under Diagnostic Code 5201. The Veteran has consistently reported pain and difficulty lifting his arm, with increased severity and limitation of motion upon repetitive motion and flares ups. See Lay Statements, June 2014, January 2021, and February 2021: see also VA Form 9, October 2020. In December 2020, the Veteran’s friend since 1992 submitted a statement noting that she often must help the Veteran dress his upper body due to the severity of his right shoulder disability. Medical treatment records show that the Veteran’s right shoulder range of motion is severely limited with abduction recorded at 45 degrees and minimal internal or external rotation. See Medical Treatment Record, March 2015. During the January 2021 VA examination, the Veteran reported functional impairment and severe flare ups of the right shoulder that occur weekly and do not go away. He stated that the flare ups are precipitated by dressing and are alleviated with rest, but he still experiences pain when laying down. Given the lay and medical evidence of record, the Board finds that the Veteran’s right shoulder (major extremity) warrants a rating of 30 percent, but no higher, for the entire period on appeal. However, the Board finds that a rating in excess of 30 percent is not warranted as the weight of the competent and probative medical evidence is against finding limitation of motion to 25 degrees from side. See 38 C.F.R. § 4.71a. The Board has considered 38 C.F.R. §§ 4.40, 4.45, and 4.59, but finds that the competent and probative evidence weighs against finding weakened movement, excess fatigability, incoordination, and/or pain after repeated use over time resulting in motion limited to 25 degrees from side for the right arm. In addition to testing, the Veteran has been asked to describe functional loss and impairment and he did not describe loss of motion to the degree required for a higher rating. Sharp, 29 Vet. App. at 34-35; see VA Examination, June 2012, September 2014, May 2018, and January 2021. Simply put, after considering the medical findings and lay statements, the evidence does not suggest that motion is limited to the requisite degree for a higher rating. 2. Entitlement to a combined evaluation greater than 60 percent, effective April 16, 2009, greater than 30 percent, effective August 12, 2009, greater than 80 percent, effective January 26, 2010, and greater than 90 percent, effective May 19, 2010. The Veteran’s combined evaluation is currently 60 percent, effective April 16, 2009, 30 percent, effective August 12, 2009, 80 percent, effective January 26, 2010, and 90 percent, effective May 19, 2010. The Veteran contends that a higher combined rating is warranted. The Combined Ratings Table results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. 38 C.F.R. § 4.25. To use the Combined Ratings Table, the disabilities will first be arranged in the exact order of their severity, beginning with the greatest disability, and then combined according to the Combined Ratings Table grid. Importantly, once all of the service-connected disabilities have been entered into the grid, if the final resulting number ends in a terminal digit of “5” or higher, the number will be rounded up to the next number divisible by ten and any terminal number under “5” will be rounded down to the next number divisible by 10. Id. In other words, the conversion to the nearest degree divisible by 10 will be done only once after entering all service-connected ratings. Id. After analyzing and applying the Combined Ratings Table to the Veteran’s assigned disability ratings, the Board finds the Veteran’s combined disability rating of 60 percent, effective April 16, 2009, 30 percent, effective August 12, 2009, 80 percent, effective January 26, 2010, and 90 percent, effective May 19, 2010, is accurate. 38 C.F.R. §§ 4.25, 4.26. In this regard, as noted above, the Veteran himself has not challenged how the Combined Ratings Table works to yield an overall percent rating. Instead, he asserts that such does not take into consideration the full extent of his disabilities. The mechanical application of the Veteran’s ratings to the Combined Ratings Table are as follows: Effective April 16, 2009, the Veteran’s service-connected cardiomegaly is rated at 60 percent and his service-connected pseudofolliculitis is rated at zero percent giving the Veteran a combined evaluation of 60, or 60 percent. Effective August 12, 2009, the Veteran’s service-connected cardiomegaly is rated at 30 percent and his service-connected pseudofolliculitis is rated at zero percent giving the Veteran a combined evaluation of 30, or 30 percent. Effective January 26, 2010, the Veteran’s service-connected PTSD is rated at 70 percent, his service-connected cardiomegaly is rated at 30 percent, and his service-connected pseudofolliculitis is rated at zero percent, giving the Veteran a combined evaluation of 79. Under the Combined Ratings Table, the total, 79, is rounded up to the nearest number divisible by 10, which yields an 80 percent disability rating. Effective May 19, 2010, the Veteran’s service-connected PTSD is rated at 70 percent, his service-connected cardiomegaly is rated at 30 percent, his service-connected right shoulder disability is rated at 30 percent, and his service-connected pseudofolliculitis is rated at zero percent, giving the Veteran a combined evaluation of 85. Under the Combined Ratings Table, the total, 85, is rounded up to the nearest number divisible by 10, which yields a 90 percent disability rating. On June 3, 2010, the Veteran was granted service connection for hypertension with a rating of zero percent, which did not change the Veteran’s overall combined rating. Effective June 6, 2012, the Veteran’s service-connected PTSD is rated at 70 percent, his service-connected pseudofolliculitis is rated at 60 percent, his service-connected right shoulder disability is rated at 30 percent, and his service-connected cardiomegaly is rated at 30 percent, giving the Veteran a combined evaluation of 94. Under the Combined Ratings Table, the total, 94, is rounded down to the nearest number divisible by 10, which yields a 90 percent disability rating. Consequently, the RO appropriately assigned an overall disability rating of 60 percent, effective April 16, 2009, 30 percent, effective August 12, 2009, 80 percent, effective January 26, 2010, and 90 percent, effective May 19, 2010, given the currently service-connected disabilities. As such, the Veteran’s claim for entitlement to a combined disability rating in excess of 60 percent, effective April 16, 2009, in excess of 30 percent, effective August 12, 2009, in excess of 80 percent, effective January 26, 2010, and in excess of 90 percent, effective May 19, 2010, must be denied. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period from April 16, 2009 to August 12, 2009. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must consider the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. 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). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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 nonexertional) 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran asserts that the impact of his service-connected disabilities cause him to be unable to secure or follow a substantially gainful occupation prior to January 26, 2010. The Board notes that the Veteran’s service-connected disabilities meet the schedular criteria for an award of TDIU for the period from April 16, 2009 to August 12, 2009. As such, the issue before the Board is whether the Veteran’s service-connected cardiomegaly, rated at 60 percent, and service-connected pseudofolliculitis, rated at zero percent, impact his ability to secure or follow gainful employment. 38 C.F.R. § 4.16.  On his TDIU application, the Veteran reported that he last worked full-time on December 17, 2008. See VA Form 21-8940, June 2013. This is corroborated by the Veteran’s Social Security Administration records. The Veteran’s education consists of four years of high school and housing inspection training. The Veteran last worked selling fruits and vegetables. Previously he had worked for the post office, as a housing inspector, and as a manager of a variety of stores. During the relevant period, the Veteran reported having fatigue and tightness in his chest. He also reported being short of breath and only being able to walk a short distance without getting tired. He reported breaking out in a cold sweat, having nausea, vomiting, coughing, and wheezing. During the February 2014 examination, the Veteran reported that if he were to work, he does not think that he would be able to hold a job due to his shortness of breath and dizziness. The Veteran’s treating physician concurred, noting in a December 2010 internal medicine outpatient note that the Veteran is permanently disabled in part by his heart condition. Given the evidence regarding the Veteran’s functional limitations due to his service-connected heart disability, in light of his individual work experience and training, and with the resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of a TDIU rating for the period from April 16, 2009 to August 12, 2009. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). REASONS FOR REMAND 1. Entitlement to a TDIU for the period from August 12, 2009 to January 26, 2010 is remanded. As noted above, the Board finds that the Veteran’s service-connected cardiomegaly impacts his ability to secure or follow gainful employment for the period from April 16, 2009, to August 12, 2009. The Veteran has also been found to be unable to secure or follow substantially gainful employment due to his service-connected disabilities beginning January 26, 2010. During the period from August 12, 2009 to January 26, 2010, the Veteran does not meet the percentage thresholds for schedular TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Based on the medical and lay evidence of record, the Board finds that extraschedular consideration of TDIU is warranted. See 38 C.F.R. § 4.16(b). On remand, the claim for TDIU should be referred to VA’s Director of Compensation Service for extraschedular consideration. (Continued on the next page)   The matters are REMANDED for the following action: Refer the Veteran’s case to the Director, Compensation Service for extraschedular consideration of the Veteran’s TDIU claim pursuant to 38 C.F.R. § 4.16(b). TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, 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.