Citation Nr: 21026327 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-18 459 DATE: April 30, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right shoulder disability prior to July 20, 2017, is denied. Entitlement to a rating in excess of 20 percent for a right shoulder disability as of July 20, 2017, is denied. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The evidence does not show a factually ascertainable increase in disability due to a right shoulder disability such that a higher rating was warranted in the year prior to the receipt of the claim for increase on July 20, 2017. 2. Effective July 20, 2017, the Veteran's right shoulder disability was not more nearly approximated by limitation of right shoulder motion to midway between the side and shoulder level. 3. It is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent prior to July 20, 2017, and in excess of 20 percent for a right shoulder disability as of July 20, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a (86 FR 8142, Feb. 4, 2021), Diagnostic Code 5201. 2. The criteria for entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1953 to August 1956 and in the United States Air Force from January 1957 to January 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 1. Entitlement to a rating in excess of 20 percent for a right shoulder disability as of July 20, 2017, is denied. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran’s favor, and the claim should be granted. 38 U.S.C. §§ 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Normal forward flexion of the shoulder is from 0 to 180 degrees, normal abduction is from 0 to 180 degrees, and normal internal and external rotation is from 0 to 90 degrees. Forward flexion and abduction to 90 degrees amounts to shoulder level. 38 C.F.R. § 4.71, Plate I. During the course of this appeal, the criteria for Diagnostic Code 5201 rating arm disabilities, changed effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. 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 must consider the application of 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. Diagnostic Code 5201 provides for limitation of motion of the arm. The criteria of Diagnostic Code 5201 provide different ratings for the minor arm and the major arm. The Veteran has indicated in service medical records and at VA examinations that he is right-handed. Therefore, with respect to the right shoulder, the Board will apply the ratings and criteria for the major arm under the relevant Diagnostic Codes. 38 C.F.R. § 4.69. The diagnostic criteria pertaining to traumatic arthritis are applicable where limitation of motion of the shoulder is noncompensable. 38 C.F.R. § 4.71a, 5201. Under the old rating criteria, a 20 percent rating is warranted where there is limitation of motion of the major arm at shoulder level. 38 C.F.R. § 4.71a, 5201 (prior to February 7, 2021). The new rating criteria specify a 20 percent rating is warranted where there is limitation of motion of the major arm at shoulder level which is defined as flexion and/or abduction limited to 90 degrees. 38 C.F.R. § 4.71a, 5201 (effective February 7, 2021). Under the old rating criteria, a 30 percent rating is warranted where there is limitation of motion of the major arm to midway between side and shoulder level. 38 C.F.R. § 4.71a, 5201 (prior to February 7, 2021). The new rating criteria specify a 30 percent rating is warranted where there is limitation of motion of the major arm midway between side and shoulder level which is defined as flexion and/or abduction limited to 45 degrees. 38 C.F.R. § 4.71a, 5201 (effective February 7, 2021). Under the old rating criteria, a 40 percent rating is warranted where motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, 5201 (prior to February 7, 2021). The new rating criteria specify a 30 percent rating is warranted where there is limitation of motion of the major arm flexion and/or abduction limited to 25 degree from side. 38 C.F.R. § 4.71a, 5201 (effective February 7, 2021). The Board notes the old and new code are similar. However, the new code specifically quantifies the limitation of motion for each rating criterion with a specific measurement in degrees. It would not benefit the Veteran any more to apply the old or the new code. Thus, the following analysis is undertaken with consideration to the date of the evidence and the corresponding rating criteria. As noted earlier, 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). The Veteran’s right shoulder disability was assigned a 10 percent rating prior to July 20, 2017, and is currently assigned a 20 percent rating as of July 20, 2017. The effective date for the increase is the date of the receipt of the claim for increased rating. The Board must consider whether there was a factually ascertainable increase in disability in the year prior to receipt of the claim for increase. 38 C.F.R. § 3.400. An August 2017 VA examination diagnosed arthritis of the right shoulder. The Veteran did not report flare ups of pain. Pain at the end points of motion limited the speed at which the Veteran could lift things. Flexion was from 0 to 170 degrees. Abduction was from 0 to 170 degrees. External rotation was from 0 to 80 degrees. Internal rotation was from 0 to 80 degrees. There was no additional loss of range of motion after three repetitions. The right shoulder disability limited speed of movement and endurance when lifting and working overhead. A November 2017 VA treatment record notes that the Veteran presented with right shoulder pain. The Veteran awoke that morning with severe pain and was unable to move the shoulder. The pain radiated down the right arm and to the right chest. The treating provider made a treatment plan for right shoulder pain. The right shoulder paint appeared to be musculoskeletal. There was a chronic underlying shoulder injury that had not been rehabilitated and was not presenting as myofascial pain. Passive and active range of motion of the right shoulder was limited due to pain in the anterior shoulder. There was pain with resisted internal rotation and external rotation, and anterior and lateral abduction. Strength was normal. A May 2018 shoulder examination found that the Veteran had right shoulder impingement syndrome, rotator cuff tendinitis, glenohumeral joint osteoarthritis, acromioclavicular joint osteoarthritis, and recurrent dislocation. Flare ups of the right shoulder were described as causing limitation due to pain in activities such as repetitive reaching, forceful pushing, pulling, and heavy lifting and carrying. The Veteran reported functional impairment of impaired repetitive reaching, forceful pushing, pulling, heavy lifting, and carrying. Flexion and abduction were from 0 degrees to 105 degrees. Internal and external rotation were from 0 degrees to 75 degrees, with pain on all ranges of motion that caused functional loss. After three repetitions, motion was limited to 90 degrees of flexion and abduction and 70 degrees of internal and external rotation. Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time, causing flexion and abduction to be limited to 75 degrees and internal and external rotation to be limited to 60 degrees. Flare ups caused functional loss, but the examiner could not opine as to the limitation of motion without resort to speculation. A May 2018 right shoulder X-ray report notes that a large exostosis was seen inferomedial aspect of humeral head. There was extreme joint space narrowing of glenohumeral joint. The acromioclavicular joint had degenerative changes. The interpreting physician diagnosed severe osteoarthritis. An August 2018 VA treatment record shows that the Veteran complained of right shoulder pain of 7/10 that was not tolerable. He was given pain management education. An October 2018 Board remand found that the May 2018 examination did not indicate the point at which pain began and requested additional examination. At a September 2019 examination, the Veteran stated his condition had worsened and that he continued to experience chronic aching of the right shoulder. The Veteran noted daily flare-ups of the right shoulder. The Veteran described the flare-ups as moderate to several and lasting for several hours. The Veteran stated the flare-ups were caused by everyday activities involving repetitive reaching, forceful pushing and pulling, heavy lifting, and carrying. The Veteran explained that the flare-ups were alleviated by rest and medication. Range of motion testing found forward flexion to 105 degrees; abduction to 105 degrees; external rotation to 75 degree; and, internal rotation to 75 degrees. After repetitive use, flexion and abduction were limited to 75 degrees, and internal and external rotation were limited to 60 degrees. During flare ups, the examiner opined that motion would be limited to 60 degrees of flexion and abduction and 45 degrees of internal and external rotation. The right shoulder range of motion was described as abnormal or outside of normal range. The examiner noted the range of motion itself contributed to functional loss by impairing the Veteran’s reaching ability. The Veteran exhibited pain in all types of range of motions. Specifically, the examiner noted there was evidence of pain with weight bearing and crepitus. The examination showed a loss of 5 to 15 degrees in range of motion after repetitive use three times. The examiner indicated pain, fatigue, and lack of endurance caused functional loss. The examiner diagnosed rotator cuff tendonitis, severe osteoarthritis, and a history of recurrent dislocation. There was no indication of ankylosis. X-rays showed degenerative changes of the right shoulder joint, consistent with osteoarthritis. The Veteran complained of right shoulder pain at some other treatment visits, but evaluation for rating purposes for a musculoskeletal disability was not conducted. He was also evaluated for neurologic disability of the right upper extremity. The Board finds that the preponderance of the evidence is against the assignment of a higher rating prior to July 20, 2017. The evidence does not show that a factually ascertainable increased in disability occurred during the one year prior to July 20, 2017, such that right shoulder motion was limited to shoulder level. While the Veteran reported a flare up in November 2017, and complained of inability to move the shoulder, the narrative report notes pain with movement of the shoulder. The evidence does not show that right shoulder motion was limited to shoulder level prior to July 20, 2017. Since the discussed evidence was conducted prior to the effective date of the new rating criteria for Diagnostic Code 5201 the Board considered whether a rating in excess of 20 percent as of July 20, 2017, is warranted under the old criteria. However, the new criteria are substantially similar. The Board finds that the preponderance of the evidence is against a finding that the Veteran had a limitation of right shoulder motion to midway between side and shoulder level which would warranted an increased rating to 30 percent; or, a limitation of motion to 25 degrees from the side which would have warranted an increased rating at any time during the consideration of the appeal. While the evidence shows increased limitation of motion due to flare ups, pain, loss of endurance, and other factors, the evidence does not show that functional impairment limited motion to half way from the side to the shoulder, or to 25 degrees. Therefore, the Board finds that an increased rating is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased rating for a right shoulder disability greater than 10 percent prior to July 20, 2017, or greater than 20 percent as of July 20, 2017. Therefore, the claim for increased rating must be denied. Gilbert v. Derwinski, 1 Vet. App.49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability rated 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is rated 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a); Mittleider v. West, 11 Vet. App. 181 (1998). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching 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 (1993). 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 age or the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s service-connected disabilities consist of posttraumatic stress disorder (PTSD) with major depressive disorder, rated 70 percent; right shoulder impingement syndrome with rotator cuff tendonitis and osteoarthritis of the acromioclavicular and glenohumeral joints, rated 20 percent; left hemiparesis with mild weakness, rated 10 percent; and, tinnitus, rated 10 percent. The current combined service-connected disability rating is 80 percent. The Veteran meet the schedular criteria for consideration of the assignment of TDIU under 38 C.F.R. § 4.16(a) because the PTSD is single disability, rated 70 percent, with a total combined rating of 80 percent. In an April 2018 Application for Increased Compensation Based on Unemployability the Veteran stated, “I’m unemployable due to my service-connected disabilities since 1986.” At a September 2019 VA examination, the Veteran’s right shoulder disability was found to impact the ability to reach repetitively, push and pull forcefully, and limited the ability to lift and carry to up to 10 pounds frequently, and up to 25 pounds on occasion. The Veteran’s bilateral hearing loss and tinnitus was found to impair verbal communication and would require a hearing aid. The Veteran’s hemiparesis impaired standing, walking, repetitive bending, heavy lifting, and carrying. The examiner noted other service-connected disability would also diminish the ability to perform physical activities of employment to a significant degree. In addition, the service-connected disabilities impaired the ability to stand, walk, bend repetitively, and lift and carry heavy items. The examiner concluded that it was at least as likely as not that the right shoulder impingement syndrome with rotator cuff tendonitis and osteoarthritis of the acromioclavicular and glenohumeral joints and other service-connected disabilities made the Veteran unable to secure or follow a substantially gainful occupation. The Board finds that opinion regarding employability to be the most persuasive evidence of record. The examiner properly considered the limitations caused by the combined effects of the service-connected disabilities. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that the combined effects of the service-connected disabilities are so great as to make the Veteran unable to secure or follow a substantially gainful occupation. Therefore, entitlement to TDIU is granted. 38 U.S.C. § 5107. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sonya S. Tsao, 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.