Citation Nr: 22006644 Decision Date: 02/04/22 Archive Date: 02/04/22 DOCKET NO. 18-47 822 DATE: February 4, 2022 ORDER Entitlement to a disability rating in excess of 20 percent for right shoulder strain, status post right (major) acromioplasty is denied. Entitlement to a total disability based on individual unemployability (TDIU), to include extraschedular consideration is denied. FINDINGS OF FACT 1. The Veteran's right shoulder strain, status post right (major) acromioplasty is manifested by pain and range of motion limited to his shoulder level, or at least 90 degrees, of the major extremity. 2. The Veteran's service-connected disabilities do not meet the percentage standards, and he is not precluded from securing and/or following substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for right shoulder strain, status post right (major) acromioplasty have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to a TDIU, to include extraschedular consideration have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from January 1993 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's claims have a lengthy procedural history before the Board. Most recently, in an August 2021 remand, the Board remanded the Veteran's claims for a VA examination that complied with the findings of Sharp v. Shulkin, 29 Vet. App. 26 (2017) and for referral to the Director of Compensation Services. However, prior to the issuance of the Board remand, the Veteran was afforded an updated VA examination for his right shoulder that complied with Sharp. The Board notes that this examination was not considered by the Board when deciding the August 2021 remand. The Board finds that this August 2021 VA examination satisfied the Board remand directives; additionally, the evidence does not suggest that another VA examination is necessary to more thoroughly and properly evaluate and adjudicate the Veteran's claim. The Board also finds that the Veteran's claim for a TDIU on an extraschedular basis was referred to the Director of Compensation Services. Accordingly, the Board finds that the RO has substantially complied with the August 2021 Board remand directives and no further development is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability ratings are determined by the application of the facts presented to 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 1. Entitlement to a disability rating in excess of 20 percent for right shoulder strain, status post right (major) acromioplasty The Veteran contends that his current rating does not adequately contemplate the severity of the Veteran's pain and limitation of motion of his right shoulder. The Veteran's right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. 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. 85 Fed. Reg. 230 (Nov. 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. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Prior to the regulatory change, under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). As of February 7, 2021, under the amended criteria, Diagnostic Code 5201 reflects that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the Veteran filed his claim for increased evaluation on June 6, 2016; the Board has considered the evidence of record since June 6, 2015 in conjunction with this decision. See 38 C.F.R. § 3.400 (o). The evidence relevant to the severity of the Veteran's right shoulder condition includes VA examinations, VA treatment records, and lay statements offered by the Veteran. During a September 2016 VA examination, the Veteran contended that his condition has worsened. He stated he experiences flare-ups described as stiffness and pain and he has functional loss which includes decreased range of motion, stiffness, and pain. Upon range of motion testing, his right shoulder was limited to 90 degrees at flexion and abduction. Pain was noted on the examination, and causes functional loss. The examiner also noted mild tenderness to palpation. The Veteran was able to perform observed repetitive use testing which resulted in loss of range of motion with flexion and abduction limited to 85 degrees. The examiner opined that pain and lack of endurance would significantly limit the Veteran's functional ability during repeated use over time, and it was estimated that his range of motion would be reduced with flexion and abduction limited to 80 degrees. As for flare-ups, the examiner opined that fatigue and lack of endurance would significantly limit functional ability resulting in additional loss of range of motion estimated at flexion and abduction limited to 75 degrees. Additional factors contributing to the Veteran's disability include weakened movement and less movement than normal. The examiner opined that the right shoulder disability would impact the Veteran's ability to perform occupational tasks due to shoulder pain, stiffness, limited range of motion, and difficulty with heavy lifting. In May 2017, the Veteran was afforded a VA examination where he stated that his right shoulder has become more painful, especially when at work, since he is a house painter. He stated that he has pain overhead and any movement above 90 degrees exacerbates his symptoms. He stated that he treats his pain with a tens unit, physical therapy exercises, and ibuprofen with some relief. He reported weakness, popping, and intermittent aching pain which is increased with strenuous activity. He denied receiving injections or any recent surgeries. The Veteran reported experiencing flare-ups when he gets a big job painting with 5-gallon buckets and ladder. Mixing and stirring paint also increases his shoulder pain. The examiner noted that the Veteran did not have any recent imaging studies or a referral to an orthopedist for new treatment. The examiner also noted that the Veteran was currently being seeing in the physical therapy and pain clinics for low back pain without complaint of right shoulder pain. Range of motion testing revealed flexion and abduction limited to 140 degrees. Pain was noted on the examination, but the examiner opined that it did not cause functional loss. The examination also revealed evidence of crepitus and mild tenderness on palpation. The Veteran was able to perform observed repetitive use testing without additional loss of function or range of motion. The examiner was unable to over an opinion without speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time or during flare-ups. Additional factors contributing to the Veteran's disability include atrophy of disuse, as the examiner noted mildly decreased muscle mass in the right shoulder compared to the left shoulder. The examiner opined that the Veteran's right shoulder condition limits his ability to work as he reported decreased ability to paint above 90 degrees with his right arm due to shoulder pain and decreased range of motion. During a January 2019 VA examination, the Veteran endorsed right shoulder pain on most days that he treats with Motrin. He reported that he works as a painter, missing 2 to 3 days per month due to multiple medical conditions. The Veteran reported experiencing flare-ups when lifting ladders. Range of motion testing revealed flexion limited to 140 degrees and abduction limited to 170 degrees. Pain was noted, but the examiner opined that it does not cause functional loss. There was evidence of pain with weight-bearing, crepitus, and tenderness to palpation. The Veteran was able to perform observed repetitive use testing without additional loss of function. As for repeated use over time and flare-ups, the examiner opined that she could not say without resorting to speculation whether pain, weakness, fatigability, or incoordination would significantly limit the Veteran's functional ability. The examiner opined that the Veteran's right shoulder disability does not impact his ability to perform occupational tasks. Most recently, in August 2021 the Veteran was afforded another VA examination. The examiner noted that the Veteran's claims file did not include any recent imaging studies or referrals to an orthopedist for new treatment of the right shoulder. During the examination, the Veteran contended that his right shoulder condition has stayed the same since onset. His current symptoms include constant dull, aching, and throbbing pain with stiffness, decreased range of motion, and fatigue. The examiner noted that the Veteran has had serial rounds of occupational therapy and physical therapy NSAIDs, injections, 3 to 4 surgeries, rehabilitation, conservative, and non-conversative therapies; however, his right shoulder still remains painful, weak, and in varying degrees of pain, weakness, and stiffness. The Veteran denied flare-ups. He reported functional loss as he cannot raise his shoulder up, move it backward or forward, or pull it in or push it out. Upon range of motion testing, the Veteran's flexion was limited to 165 degrees and his abduction was limited to 155 degrees with pain exhibited during testing. There was evidence of crepitus and tenderness to palpation of moderate severity. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examiner opined that pain, fatigability, weakness, lack of endurance, or incoordination do not significantly limit the Veteran's functional ability with repeated use over time or during flare-ups. As for the functional impact of the Veteran's right shoulder, the examiner noted that the Veteran is unable to lift heavy weight, carry or raise his right arm upward, or push or pull without risking further injury and causing more severe pain. The Veteran's VA treatment records include a July 2016 primary care visit where the Veteran complained of pain from his right shoulder that goes down to his leg. He stated that the pain is present at all times. During a July 2017 primary care appointment, the Veteran stated that his job as a painter causes him to have to use his right shoulder constantly, which aggravates his pain. In August 2018, he told his primary care provider that he cannot use him arm above his shoulder height and is in pain all the time. The Veteran also reported that he quit his job due to pain in his back and shoulder. During an October 2018 primary care appointment, the Veteran complained of chronic low back pain and shoulder pain for which he has multiple prescriptions. He stated that he gets steroid and pain injections that provide him with relief for several weeks. Most recently, during a June 2021 primary care appointment, the Veteran presented with full range of motion of his right shoulder and no swelling or tenderness to palpation. The Veteran provided a lay statement in September 2018 contending that the pain in his shoulder goes down to his arm affecting his ability to hold things. He further stated that he is unable to do daily activities because his shoulder hurts. In his September 2018 VA Form 9, the Veteran contends that he is no longer able to work, and when he did work in the past, he was always in pain. He stated that he has pain in his shoulder, has trouble sleeping, and has difficulty performing everyday activities. His pain goes down to his arm and hand. The Board notes that the evidence suggests that the Veteran is right-hand dominant; therefore, his right shoulder disability affects his major extremity. See 38 C.F.R. § 4.69. After a thorough review of the evidence of record, the Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for the Veteran's right shoulder disability under both the old schedular criteria and the new schedular criteria. Throughout the appeal, even when considering the Veteran's functional loss during flare-ups or after repeated use, his flexion and abduction have been limited to no less than 75 degrees, which warrants a 20 percent rating. At no time during the appeal has the evidence suggested that the Veteran's right shoulder is limited to midway between his side and shoulder level or flexion and/or abduction limited to 45 degrees or less to warrant an increased rating. Significantly, the evidence shows that the Veteran's range of motion has actually improved during the course of the appeal, with his July 2021 primary care appointment noting full range of motion and the August 2021 VA examination revealing minimal loss of range of motion. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to constant pain and weakened movement due to the atrophied right shoulder and the severe pain with movement, specifically when lifting his arm above his head. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran experiences severe flare-ups with reduced movement and severe pain whenever he has a big job painting would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major or minor extremity. Moreover, although the Veteran is competent to report his own observations with regard to the severity of his right shoulder disability, including reports of pain and decreased mobility, the Board finds that his statements lack credibility when weighed against the objective medical evidence of record. Jandreau v. Nicholson, 492 F.3d 1372; see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran has stated that his right shoulder pain is so severe, he is unable to continue work as a painter and he is unable to perform activities of daily living. However, throughout the appeal, the Veteran has only sought basic treatment for his right should condition through annual visits with his primary care provider. His VA treatment records reveal, as cited to by the May 2017 VA examiner, that he engaged in physical therapy clinics and pain clinics for his lumbar spine condition, but has not complained of right shoulder pain during these appointments, nor sought treatment for his right shoulder during these appointments. The Board concludes that the Veteran's failure to engage in higher level treatment for his right shoulder condition is indicative of the minimal severity of the right shoulder condition and tends to disprove the Veteran's statements regarding his right shoulder pain and decreased movement. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (when a medical condition or symptom has not been noted in the medical records, the Board may not consider that as negative evidence unless it is the sort of condition or symptom that would normally be noted or reported). Furthermore, the Board finds that the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions. And the objective findings of the trained medical professionals, including the VA examiners and the Veteran's primary care providers, did not find symptomatology that would warrant any higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, as the evidence indicates that the Veteran's right shoulder condition is manifest primarily by pain and decreased movement, the evidence does not reflect that these symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The Board has also considered whether the Veteran is entitled to a separate compensable rating for any additional conditions related to the Veteran's right shoulder condition. In the September 2018 VA Form 9, he stated that he has trouble sleeping due to his right shoulder pain. However, as previously noted, the Veteran's statements lack credibility as neither his VA treatment records, nor his VA examinations include diagnoses or complaints of sleep disorders or inability to sleep due to his right shoulder condition. Additionally, in the September 2018 correspondence and a July 2016 primary care appointment, the Veteran reported that he had pain down to his right hand and right leg. Similar to his contention that he has trouble sleeping due to his shoulder, neither his VA treatment records, nor his VA examinations include diagnoses related to pain extending beyond the right shoulder. Also, the Veteran's VA treatment records indicate that he is diagnosed with lumbar radiculopathy, which more likely than not explains the pain down to his leg. Finally, the Veteran's VA treatment records do not contain diagnoses of conditions related to the Veteran's right shoulder. Consequently, the Board finds that the evidence persuasively weighs against finding that the Veteran is entitled to any separate compensable ratings attributable to his right shoulder disability. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 20 percent for a right shoulder disability. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to a total disability based on individual unemployability TDIU, to include extraschedular consideration The Veteran contends that he is unable to work due to his service-connected right shoulder disability, entitling him to a TDIU. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims found that 38 C.F.R. § 4.16 (b) has two components: one economic and one non-economic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran has established service connection for right shoulder strain rated as 20 percent disabling, and right shoulder scars and bilateral hearing loss each rated as noncompensable. The Veteran's combined rating for compensation purposes is 20 percent. 38 C.F.R. §§ 4.25, 4.26. Therefore, the Veteran does not meet the schedular rating criteria for a TDIU. 38 C.F.R. § 4.16 (a). Although the Veteran does not meet the schedular rating criteria, all Veterans who are unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). However, in cases where the Veteran fails to meet the percentage standards, the Veteran's claim for a TDIU should be submitted to the Director of Compensation Services for extraschedular consideration. Id. Here, in a December 2021 Advisory Opinion, the Director of Compensation Services found that the preponderance of the evidence does not support an extraschedular TDIU entitlement. The opinion found that the Veteran does have limitations due to his shoulder condition, the evidence does not support a finding that the Veteran's right shoulder disability prohibits him from obtaining or maintaining gainful employment. While the Board is not bound by the Director's opinion, the Board agrees with the Director's conclusions and finds that the Veteran's service-connected right shoulder disability did not preclude him from securing or following substantially gainful occupation. See 38 U.S.C. § 511 (a); see also Wages v. McDonald, 27 Vet. App. 233 (2015). As mentioned above, the Veteran worked as a house painter until possibly 2018, when he said he quit work during an August 2018 primary care appointment. During his VA examinations, the Veteran reported that he experienced pain when painting as he had to lift his right shoulder above his head and lift heavy objects including ladders and 5-gallon paint cans. The VA examiners in September 2016, May 2017, and August 2021 did opine in the affirmative that the Veteran's right shoulder condition impacts his ability to perform occupational tasks. Alternatively, during the January 2019 VA examination, the Veteran reported that he misses about 2 to 3 days per month due to multiple medical conditions, not just his right shoulder condition. Additionally, during an August 2018 VA primary care appointment, the Veteran stated that he quit his job as a painter due to pain in both his back and his shoulder. Moreover, as previously noted, the Veteran's receives advanced treatment for his non-service-connected lumbar spine condition that he does not receive for his right shoulder disability. Thus, the evidence suggests that the Veteran's difficulty with performing occupational tasks as a painter are attributed to the pain in his more severe non-service-connected lumbar spine condition rather than his service-connected shoulder disability. While the Veteran experiences pain when performing the occupational tasks necessary as a painter and has limitation of movement in his right shoulder, the evidence does not suggest that the Veteran is precluded from mentally and physically performing the tasks necessary of a house painter. Furthermore, as the Board previously found, the objective medical evidence of record does not persuasively support a finding that the Veteran's right shoulder condition is of such severity that the Veteran is unable to obtain and maintain substantially gainful employment as a painter despite his lay assertions. The Board acknowledges the Veteran's Social Security summary provided in September 2018 indicating that from 2014 to 2017, the Veteran did not earn more than a marginal income as a painter. However, the evidence persuasively weighs against a finding that the Veteran is physically and mentally precluded from obtaining and maintaining substantially gainful employment due solely to his service-connected right shoulder disability. Accordingly, entitlement to a TDIU, to include on an extraschedular basis, is denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.