Citation Nr: 22010458 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 18-07 744 DATE: February 23, 2022 ORDER A 30 percent disability rating for the right shoulder disability is granted from April 24, 2017 to February 6, 2020, subject to the laws and regulations governing payment of monetary benefits. A rating higher than 30 percent for the right shoulder disability is denied. REMANDED The appeal for a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT From April 24, 2017, the Veteran's right shoulder (Major) disability has been manifested by abduction limited to midway between the side and shoulder level but not limited to 25 degrees from the side, at any point. CONCLUSIONS OF LAW 1. From April 24, 2017 to February 6, 2020, the criteria for a 30 percent rating for right shoulder degenerative joint disease are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. The criteria for a rating greater than 30 percent for right shoulder degenerative joint disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from June 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously remanded by the Board in December 2019. The claim for a TDIU was raised during the pendency of the appeal. See e.g. February 2020 VA examination report regarding Veteran's difficulty obtaining and maintaining gainful employment and February 2018 Veteran's statement regarding early retirement due to his right shoulder disability. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. A TDIU has been raised by the record in this case and it is discussed in the remand, below. Entitlement to a rating greater than 20 percent for a right shoulder disability prior to February 6, 2020, and greater than 30 percent thereafter. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must also consider whether any increase in a disability began during the one-year period prior to the date of the claim for increase. See 38 C.F.R. § 3.400(o). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The Veteran's shoulder disability is evaluated under Diagnostic Code 5003-5201. See 38 C.F.R. § 4.71a. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Diagnostic Code 5003 provides ratings for degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The provisions of Diagnostic Code 5003 mandate that arthritis be rated based on limitation of motion. However, when the limitation of motion of a joint is non-compensable under the appropriate portion of the Schedule for Rating Disabilities, a 10 percent rating can be assigned for each major joint affected by limitation of motion, to include painful motion, caused by degenerative arthritis established by x-ray. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, a veteran is not entitled to separate compensable disability awards for both arthritis (under Diagnostic Code 5003) and limitation of motion (under another diagnostic code) in the same joint. Hicks v. Brown, 8 Vet. App. 417 (1995); Lichtenfels, 1 Vet. App at 488. Effective February 7, 2021, the rating schedule for evaluating musculoskeletal disabilities was amended in parts, including the shoulder ratings. See 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5271). These amendments provide specific ranges of motion, in degrees, required to meet the diagnostic criteria. These amendments are not applicable any earlier than their effective date. Under both the prior and the amended version of DC 5201, limitation of motion of the arm at the shoulder level (flexion and/or abduction limited to 90 degrees) is rated 20 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. The Veteran was initially awarded service connection for a right shoulder disability in January 1969. An initial 20 percent rating was assigned. He filed this claim for increase in May 2017. In a February 2018 statement, the Veteran reported that his right shoulder disability prevented him from performing many tasks including forcing him to retire early from his sales position. The Veteran explained that he had to retire early because he was not able to use cellphones or laptops due to constant pain. He also reported that using pain relievers rendered him unable to be as alert as he needed to be in order to do his sales job properly. The Veteran was provided with VA examinations to evaluate the right shoulder in July 2017 and February 2020. In the December 2019 Remand, the Board noted that the July 2017 VA examination report was inadequate. The Board explained that the July 2017 VA examiner did not estimate whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. The examiner reasoned that such estimate would require the examiner to resort to speculation because the examination did not occur during a flare-up. The examiner should have reported an estimate based on the description provided by the Veteran or offered an explanation as to why that was not possible. During the February 2020 VA examination, the Veteran reported that he has flare-ups with strenuous activities such as yard work or stretching the right arm for long hours. The Veteran reported that flare-ups last for a few hours. The Veteran noted that he was able to cook during flare-up pain. The examiner noted that functional loss of flare-ups was described as not being able to lift anything heavy, not being able to drive for long hours, not being able to do repetitive movements for long time, not being able to use keyboard for more than 30 min at a time as the Veteran's right shoulder gets tired easily. On physical examination, the February 2020 VA examiner noted the Veteran's range of motion to be as follows: flexion to 50 degrees, abduction to 60 degrees, external rotation to 5 degrees, and internal rotation to 80 degrees. The examiner also noted pain with all ranges of motion, but no objective evidence of pain with weightbearing. The examiner also noted localized tenderness and crepitus. The examiner specifically found that there was no ankylosis in the right shoulder. The February 2020 VA examiner estimated that the Veteran's ranges of motion following repetitive use over time were as follows: flexion to 50 degrees, abduction to 60 degrees, external rotation to 5 degrees, and internal rotation to 80 degrees. The February 2020 VA examiner estimated that the Veteran's ranges of motion during flare ups were further limited as follows: flexion to 40 degrees, abduction to 50 degrees, external rotation to 3 degrees, and internal rotation to 70 degrees. The examiner noted that the Veteran had interference with stretching his right hand and reaching out to objects as well as interference with heavy lifting and repetitive motions like typing. VA treatment records do not indicate worse findings than those noted in the February 2020 VA examination report. For example, during an April 2017 VA treatment visit, the Veteran reported an increase in his right shoulder pain for the prior 2 to 3 weeks and that the pain was rated 7 out of 10 on the pain scale. The Veteran also indicated that his range of motion was limited. Prior VA treatment records dated in June 2016, noted normal range of motion in the right shoulder. Examining the evidence summarized above and giving due consideration to the provisions under 38 C.F.R. § 4.59, as well as due consideration to the provisions of 38 C.F.R. §§ 4.7, 4.10 and 4.40, and resolving any doubt in favor of the Veteran, the Board finds that the evidence favors a finding that a 30 percent disability rating is warranted throughout the period of this appeal prior to February 6, 2020; however, a rating greater than 30 percent is not warranted at any time. The Board also considered whether a separate or higher shoulder ratings are appropriate under different Diagnostic Codes. Diagnostic Code 5200 considers ankylosis, which has not been shown here. There is also no indication of immobility, even with reported pain, such that the Veteran's range of motion could be functionally equivalent to a finding of ankylosis. Additionally, Diagnostic Code 5202 applies to impairment of the humerus and scapulohumeral joint, and Diagnostic Code 5203 applies to malunion, non-union, or dislocation of the clavicle or scapula, none of which has been shown in the medical evidence of record for the Veteran's service-connected right shoulder disability. Separate or higher ratings under these codes is not warranted. In this case, the AOJ continued a 20 percent rating prior to February 6, 2020, and granted a 30 percent rating thereafter, for the right shoulder under Diagnostic Code 5201. The AOJ granted the 30 percent disability rating based on the February 2020 VA examination report findings. Because the Board has found the July 2017 VA examination report to be inadequate, the Board resolves doubt and applies the February 2020 VA examination report findings to the entire period on appeal. The Board notes that the February 2020 VA examiner's estimate of the Veteran's flexion to 40 degrees and abduction to 50 degrees during flares ups is essentially "midway" between side and shoulder level and finds that this evidence of functional loss sufficient to meet the criteria for a higher rating for the right shoulder, which is the major extremity. See Deluca, 8 Vet. App. 202. Accordingly, a 30 percent rating is warranted for the right shoulder prior to February 6, 2020 for abduction limited to midway between the side and shoulder level. A rating greater than 30 percent is not warranted at any time as the evidence does not indicate that the Veteran has had motion limited to 25 degrees from side. In this regard, the Veteran's abduction has been limited, at worst, to 40 degrees throughout the entire period on appeal. Moreover, the Board has considered the one-year period prior to the date of the claim for an increased rating and finds that the first objective evidence of the increase in symptomatology was April 24, 2017. See April 2017 VA treatment record. At that time, the Veteran reported an increase in his right shoulder pain for the prior 2 to 3 weeks and that the pain was rated 7 out of 10 on the pain scale. The Veteran also indicated that his range of motion was limited. Prior VA treatment records dated in June 2016, noted normal range of motion in the right shoulder. Thus, the Board finds the 30 percent rating is warranted effective April 24, 2017. The Board acknowledges the Veteran's indication that he is entitled to an extraschedular disability rating. See e.g., November 2019 Informal Hearing Presentation. The Board has considered the potential application of extraschedular consideration under 38 C.F.R. § 3.321(b)(1) for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service connected disability are inadequate. See Yancy v. McDonald, 27 Vet.App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy v. McDonald, 27 Vet. App. at 494-95 (2016). With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular rating criteria for rating shoulder disabilities provides for disability ratings based on limitation of motion. Here, the Veteran's limitation of motion is contemplated by the schedular rating criteria. In this regard, the Veteran has reported that during flare-ups he can only move his arm to midway between his side and right shoulder. The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties functioning with right arm motion limited to midway between his shoulder and side. Accordingly, the Board finds that the Veteran's reported shoulder related difficulties are factors contemplated in the regulations and schedular rating criteria. As the threshold issue is not applicable, the criteria for referral for an assignment of an extraschedular rating of the disability are not met. 38 C.F.R. § 3.321(b)(1). As such, referral for extraschedular consideration is not warranted. Accordingly, a 30 percent evaluation, but no higher, is granted for the right shoulder disability from April 24, 2017 to February 6, 2020. With respect to the applicability of a rating greater than 30 percent, at any point, the Board considered the applicability of the benefit of the doubt doctrine; however, as the evidence is persuasively against the claim for a rating greater than 30 percent, that doctrine is not applicable. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to a TDIU A claim for TDIU as part and parcel of the increased rating claim has been reasonably raised by the record. In this regard, the Veteran has reported that he had to retire early due to functional impairment caused by his right shoulder disorder. See February 2018 Substantive Appeal Form 9. Moreover, the February 2020 VA examiner opined that the Veteran's right shoulder disability was at least as likely as not likely to impact the Veteran's ability to obtain and maintain substantially gainful sedentary and physical employment. The examiner explained that the Veteran was not able to drive for long hours, not able to lift anything heavy, not able to do repetitive movements for a long time, not able to use a keyboard for more than 30 minutes at a time, all because the right shoulder tires easily. The examiner noted that the opinion was based on the shoulder examination, review of imagining studies, and treatment records. The AOJ has not yet had an opportunity to develop or adjudicate the question of entitlement to TDIU. The matters are REMANDED for the following action: Undertake all notice and evidentiary development needed to substantiate a claim for TDIU. This should include sending the Veteran a letter advising him of the information and evidence needed to award a claim for TDIU. The letter should also request the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.