Citation Nr: 22015134 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-27 321 DATE: March 16, 2022 ORDER Entitlement to an initial increased rating in excess of 20 percent for a right shoulder disability is denied. Entitlement to a TDIU on an extra-schedular basis from June 13, 2010 to December 4, 2016 is granted. FINDINGS OF FACT 1. Throughout the appeal period, the most probative evidence shows that the Veteran's right shoulder disability manifests in limited motion reduced to shoulder level. 2. The Veteran is unable to secure and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial increased rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5201. 2. The criteria for a TDIU on an extra-schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2007 to June 2010. These matters are on appeal to the Board of Veterans' Appeals (Board) from a June 2014 rating decision. The Board recently remanded the claims in September 2021; the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Right shoulder The Veteran was granted service connection for a right shoulder disability in a June 2014 rating decision rated 10 percent disabling effective June 13, 2010, the day after discharge from service. Another VA examination was conducted in June 2015, within the one-year appeal period, and a June 2015 rating decision continued the 10 percent rating. The Veteran appealed. Following development directed by the Board in a December 2018 decision, the Department of Veterans Affairs (VA) Regional Office (RO) increased the Veteran's rating to 20 percent effective May 23, 2016. In a September 2021 decision, the Board granted the 20 percent increase back to June 23, 2010, but remanded the issue of entitlement to an increased rating in excess of 20 percent. The Board found that the last VA examination for the Veteran's shoulder disability did not provide an estimation, or a reasonable explanation for why she was unable to provide an estimation, on range of motion during a flare-up as found required by the Court of Appeals for Veterans Claims (Court) in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran's right shoulder strain was evaluated under Diagnostic Code 5201. 38 C.F.R. § 4.71a. His right shoulder is his major extremity. 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). Under Diagnostic Code 5201, limitation of motion of an arm at the shoulder level warranted a minimum 20 percent rating whether it was the major or minor extremity. When motion was limited to midway between the side and shoulder level, a 30 percent evaluation was warranted for the major extremity. When motion was limited to 25 degrees from the side, a 40 percent evaluation was warranted for the major extremity. 38 C.F.R. § 4.71a. The revised criteria include that limitation of motion at shoulder level means flexion and/or abduction limited to 90 degrees; midway between side and shoulder level means flexion and/or abduction limited to 45 degrees; and flexion and/or abduction limited to 25 degrees from side. There were no other substantive changes to the code. Normal shoulder flexion is 180 degrees. Normal abduction is 180 degrees. Normal internal and external rotation is 90 degrees. 38 C.F.R. § 4.71, Plate I. 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. 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."). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. In the Veteran's June 2010 separation examination, he stated that his right shoulder is often sore and, as a result, is hard to use. The medical provider wrote that there was occasional intermittent pain with throwing but no daily limitations. In a January 2011 VA examination for joints, the Veteran reported pain in the right shoulder if he attempted to throw something. He endorsed pain, stiffness, weakness, catching, and severe flare-ups every two to three weeks lasting one to two days that were precipitated by throwing or pushing. The Veteran stated he was unable to use his arm well. Upon examination, tenderness was noted with flexion to 180 degrees, abduction to 170 degrees, internal rotation to 40 degrees, and external rotation to 80 degrees. There was no objective evidence of pain on active motion, nor was there pain or additional limitations following repetitive motion. In a June 2015 VA examination, the Veteran endorsed soreness and aching with throwing and shoveling snow. He did not try to lift anything due to the pain. He took over the counter medicine for pain. He did not report flare-ups. His flexion was to 180 degrees, abduction to 150 degrees, external rotation to 90 degrees, and internal rotation to 70 degrees. Pain was noted on examination at abduction and internal rotation that causes a functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or range of motion (ROM). He was not examined immediately after repetitive use over time and the examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability. No ankylosis was indicated. A rotator cuff condition was indicated, and his Hawkins' impingement test was positive. A clavicle, scapula, AC, or sternoclavicular joint condition was suspected, and the examiner described it as stable mild degenerative changes of the AC joint. In his May 2016 Notice of Disagreement (NOD), the Veteran stated that when he wakes up some days his shoulder hurts so bad, he cannot move it. He is unable to wash his hair most days. He missed being able to use his right arm and wondered why it was being described as mild. In his September 2016 VA Form 9, he described common occurrences of severe pain rendering him unable to use his arm requiring long periods of stillness. His shoulder ached each morning, and he was unable to throw a stick to his dog. In a March 2017 VA examination, the Veteran endorsed chronic pain and being unable to sleep on his right side. He felt numbness in his right fingers and occasional weakness in the arm. He endorsed flare-ups wherein he was unable to move his shoulder and his fingers felt numb. His flexion was to 115 degrees, abduction to 51 degrees, external rotation to 90 degrees, and internal rotation to 84 degrees. The examiner opined that limited ROM may result in limitations with lifting, pushing, and pulling of the joint. Pain was noted on flexion. Following three repetitions, the Veteran's flexion was to 90 degrees, abduction to 147 degrees, external rotation to 33 degrees, and internal rotation to 30 degrees. He was not examined immediately after repetitive use over time nor during a flare-up and the examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability. The examiner noted less movement than normal. There was no ankylosis indicated. A rotator cuff condition was suspected, as well as shoulder instability, dislocation or labral pathology, though the examiner did not further elaborate. A clavicle, scapula, AC joint, or sternoclavicular joint condition was suspected, and the examiner described it as degenerative changes to the AC joint. VA treatment records reflect chronic shoulder pain, particularly with overhead activities. In his October 2021 VA examination, the Veteran described constant pain with pops and clicks in his arm. If he sleeps on his right shoulder his hand becomes numb. He has difficulty raising his arm above his head and lifting anything more than 10 to 12 pounds. He cannot lift his two-year-old grandson. He did not report flare-ups. There was evidence of pain on weight bearing, non-weight bearing, and active motion that causes the above functional loss. The examiner explained that passive ROM was medically contraindicated as it could cause the Veteran severe pain or the risk of further injury. There was evidence of crepitus and tenderness. The Veteran's most reduced ROM after three repetitions and repeated use over time (estimated after procuring statements from the Veteran) was 95 degrees flexion and 55 degrees abduction. The additional functional loss after repeated use was due to pain, weakness, fatigability, lack of endurance, and incoordination. There was no ankylosis. The examiner did indicate a clavicle, scapula, AC joint, or sternoclavicular joint condition and described it as a right shoulder strain with mild degenerative changes at the AC joint. He used an arm sling occasionally. The medical evidence, along with the Veteran's lay statements that he cannot lift his arm over his head, shows that his disability results in an inability to raise his arm above shoulder level. His most reduced ROM is abduction limited to 51 and 55 degrees; however, as this is still above midway between shoulder and side, he is not entitled to a higher rating. Acknowledging the Veteran's statements that a 20 percent does not seem a high enough rating considering his pain, the Board is bound by the diagnostic criteria and has considered the functional loss caused by pain. The evidence shows that his most reduced ROM due to pain is 51 degrees abduction, still warranting a 20 percent. Due to the discrepancy between 51 degrees abduction in initial ROM and 147 degrees following repetitive use testing, however, the Board questions the validity of the March 2017 findings. In addition, all examinations prior to 2021 did not adequately consider functional loss caused by repetitive use or flare-ups that were not present at examination. In this regard, the 2021 examination is the most probative evidence of record. The examiner considered functional loss due to pain, weakness, fatigue, and incoordination following repetitive use over time, and, after eliciting testimony from the Veteran, found his flexion and abduction to be most limited to 95 and 55 degrees, respectively. The Board has also considered the Veteran's statements that at times he is unable to move his arm at all. While the Veteran is competent to report his symptoms and is found to be credible, the other evidence of record does not show ankylosis at any time throughout the appeal and indicates that the Veteran's ROM is limited to, at most, 51 degrees. The Board recognizes that medical records do not always capture the disability picture at its worst; however, it finds the medical evidence more probative in this instance because the Veteran's ROM has remained similar throughout, and that range is well above immobility. Moreover, in two of the examinations the Veteran did not report flare-ups, and he complained in the most recent examination and in treatment records that he had difficulty raising his arm above his head, limiting the probative value of his statements of immovability. Finally, the Board has also considered whether rating is more appropriate under Diagnostic Code 5203 for impairment of the clavicle or scapula. While the 2017 and 2021 VA examiners both indicate such impairment, they do not indicate that malunion, nonunion, or dislocation exists. Thus, the Veteran would not be entitled to a compensable rating under Diagnostic Code 5203. The Veteran is entitled to a 20 percent rating, but no higher, under Diagnostic Code 5201. 2. TDIU In the September 2021 decision, the Board found that the issue of entitlement to a TDIU as of December 5, 2016 was moot. However, the Board remanded the issue of entitlement to a TDIU prior to December 5, 2016 for referral to the Director of Compensation Service for extraschedular consideration. As already established in a prior Board decision, the Veteran did not meet the schedular criteria for a TDIU prior to December 5, 2016. It is the established policy of 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. Therefore, rating boards should submit to the Director of Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim was referred to VA's Director of Compensation Service for consideration of an extra-schedular rating under 38 C.F.R. § 4.16 (b). See Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Director rendered an opinion regarding entitlement to extra-schedular TDIU under 38 C.F.R. § 4.16 (b) pursuant to the September 2021 Board remand. Thus, the Board is now free to adjudicate entitlement to a TDIU under § 4.16 (b) on the merits. See Wages v. McDonald, 27 Vet. App. 233 (2015). In the January 2022 advisory opinion from the Director of Compensation Service, it was reasoned that, while the Veteran's service-connected disabilities do provide significant physical challenges, the evidence did not establish that he was unable to secure sedentary employment. It was noted that the Veteran's multiple years of college education shows an aptitude to learn new skills. While the Board has considered the advisory opinion, for the foregoing reasons, the Board finds that the Veteran was unemployable by reason of his service-connected disabilities following discharge from service until the issue became moot on December 5, 2016. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. Factors such as age or impairment by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a schedular rating provides recognition of such. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The schedular criteria contemplate compensating a Veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. 38 C.F.R. § 4.1. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Prior to December 5, 2016, the Veteran has the following disabilities that are service connected: PTSD (30 percent from June 13, 2010 to December 5, 2016; right shoulder strain (20 percent); radiculopathy of the right lower extremity (10 percent prior to December 5, 2016); lumbar degenerative disease (10 percent); left ankle sprain (10 percent); external hemorrhoids (noncompensable rating prior to December 5, 2016); and left shoulder strain (noncompensable rating prior to December 5, 2016). In the Veteran's 21-8940 application, he indicated he was a supervisor from 1986 to 2002 and a manager from 2003 to 2006 prior to joining the military in 2007. He wrote that he was in the Army from 2007 to 2015, though his DD-214 shows separation in 2010. He contended his back pain, shoulder pain, ankle pain, PTSD, and hemorrhoids rendered him unemployable. At the time, he had completed his GED and earned an Associates Degree in industrial technologies. He remarked that he did not re-enlist in the Army for medical concerns. The evidence largely shows that the Veteran has been unemployed, or only working part-time, since leaving service. He applied for Vocational Readiness and Employment services in December 2011. He was found to be entitled to services with a serious employment handicap in January 2012. The narrative report states he left high school and worked at Technocoat as a line supervisor in a painting and coating line from 1984 to 2004. He kept track of assignments and supervised approximately 30 people. He knew how to maintain and verify proper chemical composition. As a supervisor, he was walking constantly daily. He was on his feet at least 60 percent of the day. He then became a product manager at another coating company until 2007. In the military he handled radio communications and drove a truck in Afghanistan. He participated in many patrols and faced combat constantly. In terms of his impairment, he experienced a great deal of anxiety when driving, and traffic triggered his hypertensive response, as well as entering buildings with crowds. He had difficulty sleeping and was constantly hyper-alert and worried. He experienced back pain after 10 minutes of walking. If he was standing still it was only about two to three minutes before he must change positions. He avoided bending and twisting. He could only lift approximately 15 pounds. He continued to use the services and attend school throughout the relevant time period. In a June 2015 VA examination, the Veteran stated he worked part-time sanding, polishing, and dying molds in a tool shop for approximately four years. He worked approximately 20 hours per month. He was also attending community college full-time studying power plant management. In terms of impairment, in a January 2011 VA examination, the examiner opined that the Veteran's shoulder, back, and ankle disabilities resulted in decreased mobility, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, and decreased strength. The Veteran stated that his back disability limited what he could move and lift and how long he could remain in the same position. The examiner determined there was no occupational impairment due to his hemorrhoids. In a January 2011 VA examination for PTSD, the examiner opined that the main reason for the Veteran's employment dysfunction is that he just returned from Afghanistan and was in the process of looking for work, but it was not necessarily related to his PTSD. It could be more so related to the economy and getting back into civilian life. However, he did have mild social dysfunction, hypervigilance that worsened in crowds, and generalized anxiety, but his capacity for improvement and remission of PTSD was good. In a January 2011 treatment record, he stated he had difficulty mowing the lawn or raking leaves due to back pain. He was unable to pick up his toddler grandchildren. In October 2011 VA examinations, the Veteran reported that his back pain seemed to overshadow his ankle pain. He was no longer active due to back pain, and during flare-ups he was unable to do anything at all. He used a cane occasionally for his ankle. The examiner stated that the Veteran had previously worked in a factory, but now was unable to lift greater than 30 pounds, stand greater than one hour, walk for more than 30 minutes, and had difficulty bending and lifting. The Veteran did not return to factory work post-service because his back pain prohibited him to perform those tasks again. In a June 2015 VA examination for his shoulder, the examiner found no functional impact on the Veteran's ability to work, remarking that he had been working part-time and attending school full-time. In a March 2016 private treatment record, he complained of low back pain after "lifting, shoveling, etc." He endorsed "some ankle and shoulder pain as well." In August 2016, the Veteran stated that he had begun running again and one day, after running and mowing the lawn with a riding mower, he had to crawl off the mower and was in so much pain he could hardly walk for a couple days. In a September 2016 Form 9, the Veteran explained that his musculoskeletal disabilities collectively incapacitate him. His back pain restricts his ability to change positions, exacerbating his ankle pain, and vice versa. He stated he could not keep a job. At times the pain is so severe that he is unable to stand or move. First, while the Veteran did not report in his application any part-time work that he mentioned in the 2015 VA examination, the Board finds this is likely marginal employment. It is part-time work that presumably is below the poverty line given the low number of hours he works monthly. Second, while the Veteran did attend school full-time, which is suggestive both of an ability to engage in sedentary employment as well as gaining transferable skills, the Veteran's background and education is in power plant or industrial management. These positions likely require a significant amount of walking and standing. In other words, the evidence does not show he was qualified at the time for a solely sedentary position involving duties such as using a computer for data collection or filling out paperwork. The evidence clearly shows limitations with physical work. His back and ankle disabilities hinder his ability to stand, sit, or walk for prolonged periods, requiring him to change positions frequently which may pose significant challenges in the workplace. His shoulder disabilities prohibit him from lifting or carrying more than a few pounds. His PTSD hinders his ability to communicate effectively and work well with others, making supervising others or being supervised untenable. Collectively, the Veteran's disabilities inhibit him so significantly that maintaining the employment for which he is qualified is unreasonable. Having found that the Veteran is only qualified for largely physical work, and that his service-connected disabilities hinder his ability to secure and maintain both physical and semi-physical employment, the Veteran is entitled to a TDIU on an extra-schedular basis from June 13, 2010 to December 4, 2016. L.M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.