Citation Nr: 22014757 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 14-31 107A DATE: March 15, 2022 ORDER A 100 percent schedular disability rating is granted for the service-connected right clavicle disability, status post right shoulder replacement for one year from the date of the shoulder replacement surgery, July 16, 2010. A disability rating of 60 percent, for the service-connected right clavicle disability, status post right shoulder replacement, is granted for the period on appeal following the one-year post-surgical period. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. It is factually ascertainable that an increase in disability in the Veteran's service-connected right shoulder disability occurred on July 16, 2010, the date on which he underwent a right shoulder replacement; and, this date is within the one year period prior to the claim for an increased rating that was received on July 12, 2011. 2. Beginning one year following the right shoulder replacement, the Veteran's service-connected right clavicle disability, status post right shoulder replacement, is manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity. 3. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 100 percent rating for the one-year period following July 16, 2010 right shoulder replacement surgery have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5051. 2. The criteria for the assignment of a 60 percent disability rating, for the service-connected right clavicle disability, status post right shoulder replacement, have been met for the period on appeal following the one-year post-surgical period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5051. 3. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to February 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2013 and March 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In the April 2013 rating decision, the RO, inter alia, continued a previously assigned 10 percent disability rating for the service-connected right clavicle disorder (hereinafter "right clavicle disability"). The Veteran's notice of disagreement was received in August 2013. The RO issued a statement of the case in July 2014. The Veteran's VA Form 9, substantive appeal to the Board, was received in September 2014 requesting a Board hearing. During the pendency of the appeal, the RO issued a March 2015 rating decision denying entitlement to a TDIU. The TDIU claim is considered as part and parcel of the increased rating claim on appeal, and the Veteran is not required to separately appeal the March 2015 denial of the claim. Accordingly, a July 2016 supplemental statement of the case addressed both the claim for a disability rating in excess of 10 percent for the service-connected right clavicle disability and TDIU. The Veteran was sent a hearing date notification letter in September 2021. Due to package manager delays the notification letter was manually mailed in October 2021. There is no evidence that the letter was returned as undeliverable. Moreover, the Veteran was left a voicemail reminder of his hearing date in October 2021. The hearing has been rescheduled multiple times, the Veteran did not appear for his hearing, did not provide good cause, and there is no evidence that he did not receive notice. Therefore, the Board finds that the Veteran's hearing request has been withdrawn. As an initial matter, the Board has recharacterized the issue of the service-connected right clavicle to include status post right shoulder replacement because the Veteran had a right shoulder joint replacement prior to his most recent claim for increase. Accordingly, the issue has been recharacterized to reflect the current nature of his disability. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 1. Entitlement to a disability rating in excess of 10 percent for the service-connected right clavicle disability, status post right shoulder replacement. The Veteran asserts that his right clavicle disability warrants a higher rating than currently assigned. His representative asserts a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201 properly reflects the Veteran's shoulder disability during flare-ups. See February 2022 Appellate Brief. For the period on appeal the Veteran's service-connected right clavicle disability currently is evaluated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5203. However, before the Veteran filed his most recent claim for increase on July 12, 2011, he underwent a right shoulder replacement on July 16, 2010. See July 2010 Private Surgery Report. Therefore, the previous code under which the disability was rated no longer applies. Rather, since his right shoulder replacement, the criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5051 governing right shoulder prosthesis now apply. Under Diagnostic Code 5051, shoulder replacement (prosthesis) in the major extremity is as follows: For one year following implantation of prosthesis warrants a 100 percent rating; with chronic residuals consisting of severe, painful motion or weakness in the affected extremity warrants a 60 percent rating; with intermediate degrees of residual weakness, pain or limitation of motion, rate by analogy to codes 5200 and 5203; and a minimum rating of 30 percent. In this case, the Veteran's right shoulder replacement surgery was on July 16, 2010, just under one year prior to the date on which his increased rating claim was received. This is relevant to the case because, for increased rating claims, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). If the increase occurred more than a year prior to the claim, the effective date shall be the date of the claim. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Finally, if the increase occurs after the claim is filed, the effective date shall be the date the increase occurred. 38 C.F.R. § 3.400(o)(2); Harper, 10 Vet. App. at 126-27. In this case, it is factually ascertainable that the Veteran's right shoulder disability underwent an increase on July 16, 2010 because that is the day he had his replacement surgery. Because this date is within a year of the July 12, 2011 date of claim, the effective date for the increase is July 16, 2010. Critically, the rating criteria allow for a 100 percent rating for one year following replacement surgery. Accordingly, the assignment of a 100 percent rating is assigned under Diagnostic Code 5051 for one year following the replacement surgery. For the period following the one-year post-surgical period, the Veteran was afforded two VA shoulder examinations, one in March 2013, and one in June 2016. Both examinations show the Veteran has chronic residuals consisting of severe painful motion or weakness in the affected extremity. This is consistent with the Veteran's recorded history, complaints, and reported symptoms. Accordingly, for the entire period following the one-year post-surgical period, the criteria for the assignment of a 60 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5051. 2. Entitlement to TDIU. The Veteran asserts he is unable to work due to shoulder pain. See September 2014 VA Form 9. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before." In other words, a "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the U.S. Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. 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 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. In this case, there is no evidence in the record showing the Veteran's level of education or his work history. It is not clear whether the Veteran is currently unemployed. He was asked to submit the VA TDIU application for purposes of determining his education level and employment history. See February 2015 Notification Letter. To date, the Veteran has not responded to that request. Thus, the record does not show that the Veteran is unemployable due to his service-connected disabilities. "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA has the discretion to determine when additional information is needed to adjudicate a claim. The Veteran is expected to cooperate in the efforts to adjudicate his claim for service connection. His failure to do so subjects him to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Kowalski v. Nicholson, 19 Vet. App. 171 180-181 (2005). (Continued on the next page) It is not required that the Veteran submit VA From 21-8940 to establish his claim because the claim has been established as part and parcel of his increased rating claim, however he is required that he provide the necessary evidence, including his level of education and work history as requested by the RO in order to determine whether his service-connected disabilities render him unable to secure or follow substantially gainful employment considering his level of education and work history. As the record does not support a finding of unemployability, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.