Citation Nr: 23017657
Decision Date: 03/21/23	Archive Date: 03/21/23

DOCKET NO. 17-36 859
DATE: March 21, 2023

ORDER

Entitlement to a disability rating in excess of 40 percent for left shoulder, degenerative joint disease (DJD) with recurrent dislocations, is denied. 

Entitlement to a finding of total disability based on individual unemployability (TDIU) is denied.

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance, being housebound, or due to loss of use of a limb is denied.

FINDINGS OF FACT

1. The Veteran's residuals of left shoulder DJD with dislocation are assigned a 40 percent rating, which is the maximum rating authorized under Diagnostic Code 5200, for the minor upper extremity.

2. There is no nonunion or loss of the head of the humerus.

3. The Veteran's service-connected disabilities do not render him unable to secure and follow substantially gainful employment.

4. The Veteran's service-connected disabilities do not render him in need of regular aid and attendance, he does not have a single service-connected disability rated as 100 percent disabling, and he has not lost the use of his left upper extremity.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 40 percent for left shoulder DJD with recurrent dislocations have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.55, 4.59, 4.71a, Diagnostic Codes 5200, 5202.

2. The criteria for entitlement to a finding of total disability based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.15, 4.16, 4.18.

3. The criteria for SMC have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from January 1977 to September 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). 

In October 2019, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is associated with the record.

In March 2021, the Board remanded the matter for additional development, which was completed. In November 2021, the Board denied entitlement to a rating in excess of 40 percent for left shoulder DJD and denied TDIU.

The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2022, on the basis of a Joint Motion for Remand (JMR), the Court vacated the denials on the basis that the Board erred by failing to provide the Veteran with an adequate statement of reasons and bases.

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor her representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In his November 2022 brief, the Veteran's attorney argued that the record reasonably raised the issue of entitlement to service connection for depression as secondary to his left should disability. However, a claim of secondary service connection is beyond the scope of the current appeal, which the Board explained at the October 2019 hearing and was not included in the JMR. A psychiatric disability goes beyond simply additional muscular or neurological manifestations of the left shoulder disability and must be raised at the AOJ if the Veteran desires to pursue it. 

Left Shoulder Disability 

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21.

To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007).

Under 38 C.F.R. § 4.59, functional loss due to painful motion is to be rated to at least the minimum compensable rating for a particular joint. If the limitation of motion is not compensable under the applicable Code, the minimum compensable rating is assigned. Further, 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).

In evaluating any disability based on limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). While pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.

Shoulder disabilities are rated under Diagnostic Codes 5200 through 5203 of 38 C.F.R. § 4.71a. Diagnostic Code 5200 addresses ankylosis of the scapulohumeral articulation. Diagnostic Code 5201 addresses limitation of arm motion. Diagnostic Code 5202 addresses other impairment of the humerus. Diagnostic Code 5203 addresses impairment of clavicle or scapula; but no involvement of these bones is noted here. See 38 C.F.R. § 4.71a.

Additionally, 38 C.F.R. § 4.55(c) prohibits separate rating for muscle injuries, stating "there will be no rating assigned for muscle groups which act upon an ankylosed joint" with an exception "in the case of an ankylosed shoulder, if muscle groups I and II are severely disabled, the evaluation of the shoulder joint under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups themselves will not be rated."

Here, the Veteran's residuals of the left shoulder disability are rated pursuant to Diagnostic Code 5200, for ankylosis of the scapulohumeral joint; the Board has also considered Code 5202, for "other" impairment of the humerus. These Codes provide differing evaluations depending on which limb is disabled, differentiating between the major/dominant limb and the minor/nondominant limb. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant; if a Veteran is ambidextrous, the more severely injured limb is considered dominant. 38 C.F.R. § 4.69.

Examiners have consistently identified the Veteran as right-handed. In a September 2021 statement, the Veteran stated that he wrote right-handed, but alleged that his left arm should be considered dominant because he had always used the left arm playing sports when younger. The Board finds the Veteran to be right-handed, not left-handed or ambidextrous. When asked by doctors which hand was dominant, he reported the right. Further, the activities, only sports, he describes as relying on the left hand are not occupational. The rating schedule is designed to compensate the "average impairment in earning capacity" due to disability, and it is writing, not playing youth sports, which represent a work-related activity. As the Veteran in the case at hand is right-handed, his service-connected residuals of the left shoulder dislocation will be evaluated accordingly as affecting his minor extremity.

Under Code 5200, a 40 percent rating is warranted where there is unfavorable ankylosis of the minor extremity of scapulohumeral articulation with abduction limited to 25 degrees from the side. The 40 percent rating is the maximum rating for the minor extremity. 38 C.F.R. § 4.71a, Code 5200. Ankylosis is defined as complete immobility of a joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992).

Alternatively, under Code 5202 recurrent dislocation at scapulohumeral joint with frequent episodes and guarding of all arm movements, or with infrequent episodes and guarding of movement only at shoulder level, warrants a 20 percent rating for the minor extremity. Fibrous union of the scapulohumeral joint warrants a 40 percent rating for the minor extremity. Nonunion of the humerus (false flail joint) warrants a 50 percent disability rating for the minor extremity. Loss of the head of the humerus (flail shoulder) warrants a 70 percent disability rating for the minor extremity. 38 C.F.R. § 4.71a, Code 5202. This is the only potentially applicable Code to provide an evaluation in excess of 40 percent.

Additionally, the rating criteria for musculoskeletal disorders were revised on February 7, 2021. The amended regulations became effective on February 7, 2021, and claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Code 5200 remains unchanged. Code 5202 is essentially unchanged but now indicates the range of motion in degrees for flexion and abduction associated with infrequent episodes and guarding of movement only at shoulder level. 38 C.F.R. § 4.71a (2021).  

Standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71 Plate I.

In June 2012, the Veteran was afforded a VA shoulder examination. The Veteran was diagnosed with left shoulder post traumatic arthritis. He reported that he had constant pain in his left shoulder, which was rated a 7 out of 10. He indicated that he was limited in performing activities. The Veteran reported that he was not able to lift his arm or do overhead type activities. He indicated that his shoulder flared up once a week and he did not know what caused it. His flare-ups lasted 5 minutes and improved with pantoprazole. The Veteran was right hand dominant. His initial range of motion (ROM) for flexion ended at 50 degrees and abduction ended at 45 degrees. The Veteran was able to do repetitive use testing. The Veteran had less movement than normal, weakened movement, and pain on movement. He did not have localize tenderness or pain on palpation of joints/soft tissue/ biceps tendon of either shoulder. He had left shoulder guarding. He had an abnormal muscle strength testing. The Veteran had ankylosis in his left shoulder and his abduction was limited between 60 and 25 degrees. He was unable to perform the Hawkins' impingement test, lift-off subscapularis test, and empty-can test. He had a negative external rotation/Infraspinatus strength test. He had a positive cross-body adduction test. The Veteran had a history of recurrent dislocation of the scapulohumeral joint. He did not have an AC joint condition or impairment of the clavicle or scapula. He had residuals signs and/or symptoms due to shoulder surgery described as chronic pain, weakness, and decreased ROM. The Veteran had a scar related to his left shoulder condition that was not painful and/or unstable. The examiner indicated that the Veteran's left shoulder condition impacted his ability to work. The examiner remarked that the Veteran had been unemployed since December 2008 as an electrician. The Veteran received social security disability secondary to his recent heart attack and multiple joint pain including neck, shoulder, and back. The examiner indicated that the Veteran had significant decreased ROM, moderate weakness, and mild to moderate verbalized pain during the physical examination. There was significant guarding and inability to perform some physical examination secondary to pain. There was no additional loss of motion or function after 3 repetitions. The examiner concluded that it was conceivable that the Veteran's left shoulder pain could further limit function particularly after strenuous and repetitive lifting and overhead activities. However, it was feasible that the Veteran was physically capable of performing light duty/none-lifting /sedentary type employment activities.

December 2012 private treatment records note that he was seen for left shoulder complaints. His left shoulder ROM was limited by pain. His flexion ended at 40 degrees and internal rotation ended at 80 degrees.

Private January 2013 medical records document complaints of pain described as aching, sharp, and throbbing in his left shoulder. His pain was aggravated by lifting, movement, and pushing. ROM demonstrated flexion ended at 40 degrees, abduction ended at 40 degrees, and adduction ended at 40 degrees.

A January 2013 VA treatment note documented his complaints of left shoulder pain. He had had a negative drop arm test. His external rotation ended at 30 degrees, internal rotation ended at 30 degrees with pain, and forward flexion ended at 90 degrees with complaints of discomfort.

In an October 2013 VA shoulder examination, the Veteran was diagnosed with left shoulder arthritis. He reported that he had significant shoulder pain and limited ROM. The Veteran was right hand dominant. He indicated that he had flare-ups that were worse with activity. His initial ROM for flexion ended at 5 degrees and abduction ended at 5 degrees. The Veteran did not have additional limitation in ROM of the shoulder following repetitive-use testing. He had less movement than normal, weakened movement, and pain on movement. He did not have localized tenderness or pain on palpation of joints/soft tissue/biceps tendon. He did not have guarding of the shoulder. He had an abnormal muscle strength testing. He did not have ankylosis of the shoulder. He was unable to perform the Hawkins' impingement test, empty-can test, external rotation/infraspinatus strength test, crank apprehension and relocation test, and liftoff subscapularis test. The Veteran had a history of mechanical symptoms such clicking or catching. He did not have a history of recurrent relocation of the scapulohumeral joint. He did not have an AC joint condition or an impairment of the clavicle or scapula. There was no tenderness on palpation of the AC joint. The Veteran did not have any residual signs and/or symptoms due to arthroscopic or other shoulder surgery. The examiner opined that the Veteran's left shoulder condition impacted his ability to work. The examiner noted that the Veteran was unable to use his left shoulder.

An August 2014 S private treatment note documented he had a moderate to severe level of pain in his shoulder. ROM for flexion ended at 20 degrees, abduction ended at 20 degrees, and adduction ended at 40 degrees.

In April 2014, the Veteran was afforded a VA shoulder examination. The Veteran was diagnosed with rotator cuff tear and DJD with recurrent dislocation. The Veteran was right hand dominant. The Veteran had difficulty with recurrent dislocations. He reported that he had throbbing and sharp pain in his shoulder. He indicated that he was unable to lift any weight. He stated that he could not reach over his head, open doors, or steer a steering wheel. He was prescribed Oxycodone for temporary relief. The Veteran reported that he really could not use his arm. He explained that he could not hold a glass of water. The examiner noted that the Veteran was in too much pain to participate in ROM assessment. The examiner was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limit functional ability with flare ups. The examiner explained that the Veteran did not report any flare-ups. The Veteran did not have ankylosis of the shoulder. He had a history of recurrent dislocation, with infrequent episodes. There was tenderness on palpation of the AC joint. The Veteran did not have AC joint or any other impairment of the clavicle or scapula. He was unable to perform cross-body adduction test. The examiner opined that the Veteran's left shoulder condition impacted his ability to work. He explained that the Veteran had difficulty performing a job requiring pushing, pulling, lifting, and reaching overhead due to rotator cuff tear and arthritis.

In October 2019, the Veteran testified that he did not use his left shoulder because of pain. He stated that he had constant pain in his shoulder even when he was not moving. He testified that the pain was so bad that it brought tears to his eyes. His pain was so severe that it woke him up at night. The Veteran indicated that he had pain on movement and pain associated with non-movement.

In a January 2020 VA shoulder examination, the Veteran was diagnosed with rotator cuff tear and glenohumeral joint osteoarthritis. The Veteran was right hand dominant. The Veteran indicated that he could not push, pull, reach overhead, or attempt to lift any objects without pain increasing. The Veteran took hydrocodone and Tylenol for his condition. He also had Cosentyx injections monthly for his condition. He reported that his condition limited his household chores. He noted that he had constant help from his wife to clothe himself, clean up, and drive. He reported that his flare-ups occurred weekly and were moderate to severe. His flare-ups lasted at least for 10 minutes and were at random. He had a functional loss described as difficulty with heavy lifting, overhead reaching, and pushing/pulling objects. His initial ROM was 30 degrees for flexion, 20 degrees for abduction, 5 degrees for external rotation, and 5 degrees for internal rotation. ROM itself contributed to a functional loss. Pain was noted on examination and caused a functional loss. There was evidence of pain with weight bearing. There was a moderate severity of anterior/lateral joint pain that was related to his DJD. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or ROM. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain and lack of endurance significantly limited the functional ability with repeated use over a period of time. Described in terms of ROM was 30 degrees for flexion, 20 degrees for abduction, 5 degrees for external rotation, and 5 degrees for internal rotation. Pain and lack of endurance significantly limited the functional ability with flare-ups. Described in terms of ROM was 30 degrees for flexion, 20 degrees for abduction, 0 degrees for external rotation, and 0 degrees for internal rotation. There were additional contributing factors described as less movement that normal. He had a normal muscle strength testing. He did not have muscle atrophy. He did not have ankylosis. There was a rotator cuff condition suspected. The Veteran was unable to perform the Hawken's impingement test, empty can test, external rotation/ infraspinatus strength test, and lift-off subscapularis test. The Veteran had a history of recurrent dislocation of the glenohumeral joint. He had some guarding of all arm movement in the left arm. He was unable to perform the crank apprehension and relocation test. There was no clavicle, scapula, acromioclavicular joint or sternoclavicular joint condition suspected. He did not have conditions or impairments of the humerus. There was objective evidence of pain on passive ROM testing and non-weight bearing testing. The Veteran had a scar related to his condition. His scar was not painful, unstable, or have a total area equal to or greater than 39 square CM. The Veteran did not use an assistive device for his condition. The examiner opined that the Veteran's shoulder condition impacted his ability to perform any type of occupational task. The examiner noted that the Veteran would have difficulty with task requiring repetitive heavy lifting, overhead reaching, pushing, and pulling.

In April 2021, the Veteran was afforded a VA muscle injury examination. The Veteran was diagnosed with a left shoulder muscle injury. The Veteran reported that he had left shoulder pain and limited Rom. The Veteran had an injury to muscle group I, muscle group II, and muscle group IV. The Veteran did not have any associated scars with a muscle injury. The Veteran did not have muscle injuries that affected muscle substance or function. He had signs and/or symptoms attributable to muscle injuries described as loss of power. He had less than normal strength in his left shoulder abduction, left elbow extension, and left wrist flexion. He had no movement against gravity in left elbow flexion. He did not have muscle atrophy. The Veteran wore a sling constantly for his condition. The examiner opined that the Veteran's muscle condition did not impact his ability to work, such as resulting in inability to keep up with work requirements due to muscle injuries.

In an April 2021 VA shoulder examination, the Veteran was diagnosed with ankylosis of glenohumeral articulations with an onset date of 2011. The Veteran's current symptoms was pain, sharp pain, needle-like pain, and not being able to move his shoulder. The Veteran was right hand dominant. He reported that he kept his shoulder in a sling. The Veteran currently treated his condition with an injection twice a month (Codeine, and Hydrocodone). He did not report any flare-ups of the left shoulder. He did not report any functional loss/impairment of the left shoulder. Initial ROM reflected 0 degrees for flexion, abduction, internal rotation, and external rotation. Pain was noted on flexion, abduction, and internal rotation. Passive ROM was the same as active ROM. There was evidence of pain on active motion, passive motion, on rest/non-movement, and caused functional loss. The examiner commented that the Veteran had all functional loss, and his left shoulder was frozen. His left elbow had good ROM and his fingers had good movement with no contraction. There was no objective evidence of crepitus. There was severe pain when the examiner palpated the 9" scar or anywhere around the scar. The Veteran's left shoulder pain was rated 10/10. The Veteran was not able to perform repetitive-use testing with at least 3 repetitions. The examiner explained that the unrelated condition did not allow. Fatigability, lack of endurance, pain, weakness, and incoordination significantly limited functional ability with repeated use over time. Estimated ROM in degrees for the joint was 0 degrees for flexion, abduction internal rotation, and external rotation. The procured evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with flare-ups. The examiner noted that the Veteran denied having flare-ups. He had additional factors contributing to his disability such as less movement than normal and atrophy of disuse. The examiner noted that the Veteran had a frozen shoulder. The Veteran was in a sling to LUE and the Veteran's shoulder was non-functional. The Veteran had muscle atrophy due to his claimed condition. The examiner was unable to measure his muscle atrophy due to frozen shoulder. The Veteran had ankylosis. His ankylosis was in abduction at 25 degrees or less from side (unfavorable ankylosis). There was 2 degrees of ankylosis in abduction. There was involvement of muscle group I and II for his ankylosed condition. The examiner was unable to test for rotator cuff conditions. The examiner noted that the Veteran reported he had a rotator cuff tear in his left shoulder by an Orthopedic surgeon. The examiner was not able to do any shoulder instability testing. He had frequent episodes and guarding of all movements that affected his ROM. He did not have loss of head, nonunion, or fibrous union of the humerus. In 2011, the Veteran had Putti-Platt procedure to his left shoulder. The residuals were decreased of ROM, an increase of pain, frozen shoulder, and inability to move. The examiner noted that the Veteran was told by Dr. KN and an Orthopedic surgeon in 2019 that he had a rotator cuff tear in his left shoulder and needed a total left shoulder replacement. The Veteran used a sling to LUE constantly for his condition. Due to the Veteran's shoulder condition, there was not a functional impairment of an extremity such that no effective functions remain other than that which would be equally well-served by an amputation with prosthesis. The examiner opined that the Veteran's shoulder condition impacted his ability to perform any type of occupational task. The examiner explained that the Veteran did not have the ability to use or move his left shoulder. He noted that the Veteran would not be able to do a physically demanding job. The examiner noted that the Veteran was currently a pastor on the radio.

The August 2022 JMR stated that the Board failed to address whether the Veteran was "entitled to a separate rating under Diagnostic Code (DC) 5205, for recurrent dislocations in addition to his rating under DC 5200." The JMR specified that the April 2021 VA examination finding that the Veteran suffered from frequent episodes of guarding of arm movements must be addressed when determining if a separate rating under Code 5205 was warranted.

The Board notes that Code 5205 is for ankylosis of the elbow, and an elbow disability is not at issue in this case. Recurrent dislocations are part of Code 5202, impairment of the humerus. 38 C.F.R. § 4.71a, Codes 5202, 5205. The Board proceeds on the assumption that "5205" was a typo and the code the JMR intended to cite was "5202." Also, the Veteran's attorney appears to proceed under the same assumption in his November 2022 brief, as he cites to Code 5202 instead of 5205.

As addressed in the November 2021 Board decision, the above medical evidence establishes that during the entire appeal period, the Veteran's left shoulder disability is productive of the functional equivalent of unfavorable ankylosis, warranting a 40 percent rating under Code 5200. 38 C.F.R. § 4.71a. And despite the Veteran's argument in his September 2021 statement that he had muscle injuries that were documented in his April 2021 muscle injury VA examination; a separate rating for muscle injury is prohibited under 38 C.F.R. § 4.55(c), as the joint is considered ankylosed. 

Also, while separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition, the evaluation of the same disability under several diagnostic codes would result in pyramiding, which must be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The medical records, especially the VA examinations, indicate that the Veteran's frequent episodes of guarding of arm movements are an attempt to avoid pain, i.e., that Veteran does not move his shoulder in order to avoid feeling pain in his shoulder. Thus, guarding contributes to the resulting functional equivalent of ankylosis. Pain that limits function is considered as a DeLuca factor, and the Veteran is compensated for this symptom of unfavorable ankylosis under Code 5200's assigned 40 percent rating. Guarding, in other words, is a descript[tion of the behavior considered under DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59.

The Veteran cannot be compensated separately under both Code 5200 and Code 5202 because that would result in pyramiding as duplicative of the same symptomatology of the same shoulder condition. Instead, when two different codes can be assigned for the same symptom of the same injury, the higher rating is assigned as most favorable to the Veteran. 

Additionally, there is no medical evidence of nonunion of (false flail joint) or loss of head of (flail shoulder) of the humerus, warranting a rating of 50 percent or 70 percent respectively, under Code 5202. Guarding of arm movements warrants only a 20 percent rating for a minor extremity under Code 5202; thus, the higher 40 percent rating under Code 5200 for functional ankylosis is assigned. 

The Veteran's attorney cites Murray v Shinseki, 24 Vet. App. 420, 423 (2001) in support of his argument for separate ratings under Codes 5200 and 5202. However, Murray held that a manifestation of disability not already compensated by an assigned evaluation is "distinct and separate" from the manifestations that form the basis of the assigned evaluation. Id. As explained above, the Veteran is compensated for all manifestations of his left shoulder disability under the 40 percent rating under Code 5200. 

Finally, the Veteran has not raised any extraordinary circumstance or symptomatology that is not compensated under the criteria for his residuals of the left shoulder under Code 5200, or under one of the other Codes now applied to ensure all manifestations of the left shoulder disability have been compensated. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, an even higher rating is not warranted for the left shoulder disability.

TDIU

Total disability ratings for compensation may be assigned where the Schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16.

Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Marginal employment or employment in a protected environment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a).

Basic eligibility for TDIU is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent, but even if these percentage thresholds are not met, it is VA policy that an unemployable Veteran be rated totally disabled. Such Veterans must first be referred to the Director, Compensation and Pension Service, for consideration of TDIU prior to adjudication of such by the Board. 38 C.F.R. § 4.16(a) and (b).

Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16.

The Veteran's service-connected disabilities include left shoulder DJD with recurrent dislocations rated as 40 percent disabling; painful scar left shoulder rated 10 percent disabling; and scar left upper extremity rated as noncompensable (zero percent). His combined rating is 50 percent, and may be considered a "single disability" under 38 C.F.R. § 4.16(a). He does not meet the percentage requirements for TDIU on a schedular basis.

The August 2022 JMR stated that the Board failed to provide adequate reasons or bases for its determination that referral for consideration of TDIU on an extraschedular basis was not warranted. Specifically, the Board should have addressed the Veteran's allegations regarding his limitations on household chores and the negative mental effects of the Veteran's medications for left shoulder pain.

A March 2011 private clinic note documented that the Veteran was seen for complaints of back pain, bilateral knee pain, leg pain, and foot pain. The Veteran inquired if he was capable of working. The examiner indicated that he did not feel that the Veteran was capable of any meaningful employment without specifying more.

Although the Board is not bound by Social Security Administration (SSA) determinations, SSA records may be relevant to a Veteran's claim for disability. The Veteran has been in receipt of SSA disability benefits due to multiple back disorders and psoriatic arthritis since 2009. The Veteran is not service connected for a back disorders or psoriatic arthritis. The JMR noted that a November 2011, SSA Function Report, stated the Veteran "cannot do any household chores, both indoor and outdoor." The Function Report was filled out by hand by the Veteran and did not distinguish what limitations were due solely to the Veteran's service-connected left shoulder disability. The Board additionally notes that the SSA records also state that following this evaluation, it was hoped that his treatment would bring improvement to his functional capacity. Thus, the Board affords it little probative weight.

On a May 2012 VA 21-8940, the Veteran indicated that his left shoulder condition, back condition, and neck condition prevented him for securing and following gainful occupation. He indicated that December 2008 was the date that his disabilities affected his full-time employment and the last he worked full-time. He wrote that he last worked as an electrician. The Veteran indicated that he had 2 years of a college education.

On June 2012 shoulder VA examination, the examiner remarked that the Veteran had been unemployed since December 2008 as an electrician. The Veteran received social security disability secondary to his recent heart attack and multiple joint pain including neck, shoulder, and back. The examiner indicated that the Veteran had significant decreased ROM, moderate weakness, and mild to moderate verbalized pain during the physical examination. The examiner concluded that it was conceivable that the Veteran's left shoulder pain could further limit function particularly after strenuous and repetitive lifting and overhead activities. However, it was feasible that the Veteran was physically capable of performing light duty/none-lifting /sedentary type employment activities.

In June 2012, the Veteran had a VA general medical examination. The Veteran had a medical history of history of scars, sleep apnea, ischemic heart disease, esophageal disorders, male reproductive organ condition, back condition, neck condition, and shoulder/arm condition. The Veteran previously worked as an electrician and had to quit working in September 2008 due to his back and neck condition. The Veteran's lower back and neck pain lead to his inability to climb a ladder and prolonged standing, walking, or sitting.

In October 2013, the Veteran was afforded a VA shoulder examination. The examiner opined that the Veteran's left shoulder impacted his ability to work. The examiner noted that he was not able to use his left shoulder.

An April 2016 medical note included as a goal of opioid therapy "to do light household chores." The Board notes that the Veteran's medications are for pain, and the note did not distinguish what disabilities caused pain.

An April 2017 VA shoulder examination documented that he had throbbing and sharp pain in his shoulder. He indicated that he was unable to lift any weight. He could not reach over his head, open doors, or steer a steering wheel. The examiner opined that the Veteran's left shoulder condition impacted his ability to work. He explained that the Veteran had difficulty performing a job requiring pushing, pulling, lifting, and reaching overhead due to rotator cuff tear and arthritis.

In October 2019, he testified that his left shoulder impacted his ability to work. He stated that he had an associate degree in law enforcement /criminal justice. The Veteran indicated that he did some light bookkeeping kind of work over 20 to 30 years ago. He indicated that his medication caused him to have trouble concentrating.

In a January 2020 VA examination, the Veteran reported that he had symptoms of sharp, throbbing, aching, and burning pain. The Veteran indicated that he could not push, pull, reach overhead, or attempt to lift any objects without pain increasing. The examiner opined that the Veteran's shoulder condition impacted his ability to perform any type of occupational task. The examiner noted that the Veteran would have difficulty with task requiring repetitive heavy lifting, overhead reaching, pushing, and pulling.

On an April 2021 VA scar examination, the examiner noted the left shoulder scar was tender to touch. The Veteran reported that he was unable to touch his scar. The examiner noted that he was able to palpate around the scar without voiced complaints. The Veteran's scar was painful even before he touched it. The examiner opined that the Veteran's scar did not impact his ability to work. The examiner commented that the scar itself did not cause any functional impairment. However, the Veteran reported severe pain if anyone including himself even lightly touched his scar.

An April 2021 VA shoulder examination documented that he had symptoms of pain, sharp pain, needle-like pain, and not being able to move his shoulder. The examination showed that his left elbow had good ROM and his fingers had good movement with no contraction. The examiner opined that the Veteran's shoulder condition impacted his ability to perform any type of occupational task. The examiner explained that the Veteran did not have the ability to use or move his left shoulder. He noted that the Veteran would not be able to do a physically demanding job. The examiner noted that the Veteran was currently a pastor on the radio.

In consideration of the evidence outlined above concerning the Veteran's left shoulder disability and the lay evidence of record, the Board finds that the Veteran is not entitled to TDIU and does not merit referral for extraschedular consideration. While the Veteran undoubtedly has functional impairment and loss due to his left shoulder including reduced range of motion, limitations on heavy lifting, overhead reaching, pushing, and pulling, his physical disabilities do not prevent him from securing or following a substantially gainful occupation. The Veteran retains the physical ability to perform occupational tasks in an office-type environment and has demonstrated the ability to do so when working as a pastor on the radio. 

Although the Veteran is not able to move his left shoulder, the Veteran's left elbow has good ROM, and his fingers have good movement with no contraction according to the April 2021 VA examination. Just because the Veteran could no longer work as an electrician or seek a demanding physical job, it does not follow that he would be unable to secure or follow a substantially gainful occupation that involved non-physical work. He could supervise or direct or work primarily at a desk location. There is no indication that the Veteran is unable to type or perform sedentary jobs involving computer work. Further, the Veteran has an associate degree in law enforcement/ criminal justice; his experience is not limited to manual labor.

While the Veteran indicated that his medication caused him to have trouble concentrating, he has sent in numerous correspondence to the Board reflecting his ability to clearly articulate his thoughts and manage deadlines. Trouble concentrating is not reported or noted as a side effect in his medical records. While he was for a period prescribed hydrocodone, an opioid, he reported to doctors he did not take it often and it was discontinued so he could take other medications safely.  Accordingly, the Board affords little probative weight to the Veteran's allegations that he is unable to concentrate.

Regarding household chores, the Board acknowledges that being unable to use his minor shoulder would limit the types of household chores that the Veteran is able to perform. However, as noted in the JMR, hard work around one's own home and in one's own yard does not necessarily have a correlation with the ability to engage in substantially gainful employment. Friscia v. Brown, 7 Vet. App, 294, 297 (1994). Thus, while the Board finds the Veteran's left shoulder disability limits him from some household chores, and jobs that involve medium work, it does not indicate the Veteran is limited from lighter or sedentary work. For example, dusting and light vacuuming or mopping do not require the use of both arms, especially the non-dominant arm. Instances of operating a riding mower are cited in treatment records.

In the arguments presented by the Veteran and his attorney, the limitations of the Veteran's nonservice-connected back condition and neck conditions are included as reasons why the Veteran is prevented from securing and following gainful occupation. As discussed above, the Board is not able to consider his nonservice connected neck and back conditions in determining entitlement to TDIU.

The Veteran has not been shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, which consist solely of a left shoulder disability. Thus, an extraschedular referral is not warranted. The most probative evidence does not reflect that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected left shoulder disabilities.

SMC

Special monthly compensation is an additional level of compensation to Veterans (above the basic levels of compensation payable based on disability ratings of 0 to 100 percent) for various types of anatomical losses or levels of impairment due solely to service-connected disabilities. See 38 U.S.C. § 1114(k-s).

The August 2022 JMR stated that the Board failed to address whether entitlement to SMC due to the need for aid and attendance based upon limitations caused by his left shoulder is warranted. The JMR specified that the Board failed to address the Veteran's statements that he required assistance from his wife to clothe, bathe, drive, and open doors. 

First, the Veteran does not meet the schedular eligibility criteria for SMC at the housebound rate, as he lacks a single service-connected disability rated as 100 percent. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

Second, because the Veteran retains use of the hand and elbow, he would not be equally well served by amputation of the limb at shoulder level. Thus, SMC based on loss of use of the limb is not warranted. 38 C.F.R. § 4.63. SMC entitlement is not shown. See Akles v. Derwinski, 1 Vet. App. 118 (1991).

Third, as addressed above, the Veteran retains use of the hand and elbow, and many of his physical limitations are due to his non-service-connected disabilities. While the Veteran may require assistance from his wife in order to clothe, bathe, drive, and open doors; assistance is not due solely because of his inability to move his shoulder. Additionally, SSA records and VA examinations noted that at times the Veteran is able to drive and perform light office work. Treatment records cite lawnmowing with a riding mower.

Here, the only his service-connected disability is his left should disability, and only its limitations are considered for entitlement to SMC. As such, based on the evidence of record, entitlement to SMC is not warranted on any reasonably identified basis.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L.M. Barletta

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.