Citation Nr: 23017724 Decision Date: 03/21/23 Archive Date: 03/21/23 DOCKET NO. 15-03 474 DATE: March 21, 2023 ORDER Entitlement to a 30 percent rating for a service-connected right shoulder disability, based on dislocation of the scapulohumeral joint, as of March 24, 2022, is granted. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU), as of October 30, 2020, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), prior to October 30, 2020, on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Prior to March 24, 2022, the Veteran's right shoulder disability was not manifested by ankylosis, recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements; impairment of the humerus; or limitation of motion of the arm to midway between the side and shoulder level. 2. As of March 24, 2022, the Veteran's right shoulder disability has been manifested by recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements. 3. As of October 30, 2020, the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for a service-connected right shoulder disability, based on dislocation of the scapulohumeral joint, as of March 24, 2022, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38C.F.R. §§4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5200-5203. 2. As of October 30, 2020, the criteria for a TDIU have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1970 to August 1974, with additional service in the United States Naval Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in June 2021, when it was remanded for further development. The matter is now returned to the Board for adjudication. 1. Entitlement to a 30 percent rating for a service-connected right shoulder acromioclavicular dislocation The Veteran was initially in receipt of a 10 percent rating for his shoulder disability. In September 2012, he filed a claim for an increased rating. He was then awarded an increased 20 percent rating under Diagnostic Code 5203 in a November 2012 rating decision. The Veteran now contends that a rating in excess of 20 percent is warranted for his right shoulder disability. Diagnostic Codes 5200 through 5203 address disability ratings for the shoulder and arm. The applicable diagnostic codes differentiate between the major and minor arm. As the record indicates that the Veteran is right-handed, the rating assigned is for that of the dominant arm. The Board also notes that 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. The Board will discuss all amendments that are relevant to the instant appeal below. Diagnostic Code 5203 pertains to impairment of the clavicle or scapula. Diagnostic Code 5203 was not affected under the revised rating schedule effective February 7, 2021. A 20 percent evaluation is the maximum schedular evaluation available under that diagnostic code. Therefore, in this case, an increased evaluation cannot be granted under Diagnostic Code 5203. Under both the former and revised Diagnostic Code 5200, which provides for the evaluation of a shoulder or arm disability if there is ankylosis of the scapulohumeral articulation, a 30 percent rating is warranted for favorable ankylosis; a 40 percent rating is warranted for intermediate ankylosis; and a 50 percent rating is warranted for unfavorable ankylosis. However, the Veteran has not contended, and neither does the evidence of record show, that the Veteran has ankylosis of the shoulder. Accordingly, an increased rating is not warranted under Diagnostic Code 5200. Under the former rating criteria for Diagnostic Code 5201, limitation of motion of the major arm at shoulder level was rated as 20 percent; limitation of motion of the major arm to midway between the side and shoulder level was rated as 30 percent; and limitation of motion of the major arm to 25 degrees from the side was rated as 40 percent. Under the revised version of Diagnostic Code 5201, effective February 7, 2021, a 20 percent rating is warranted for limitation of motion of the major arm at shoulder level, defined as flexion and/or abduction limited to 90 degrees. A 30 percent rating is warranted for limitation of motion of the major arm to midway between the side and shoulder level, defined as flexion and/or abduction limited to 45 degrees. A 40 percent rating is warranted for limitation of motion of the major arm to 25 degrees. With respect to the major arm, the former version of Diagnostic Code 5202 provided that impairment of the humerus was rated as 30 percent with recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements or malunion of the humerus with marked deformity; impairment of the humerus was rated as 50 percent with fibrous union; impairment of the humerus was rated as 60 percent with nonunion (false flail joint); and impairment of the humerus was rated as 80 percent with loss of head (flail shoulder). The revised version of Diagnostic Code 5202, effective February 7, 2021, is identical to the former version, except that infrequent episodes and guarding of movement only at shoulder level is defined as flexion and/or abduction at 90 degrees. The Veteran was afforded a VA examination in October 2012. He reported pain, tenderness, numbness, and difficulty reaching above his head. He denied any flare-ups. On examination, flexion was to 115 degrees with pain beginning at 100 degrees. Abduction was to 90 degrees with pain beginning at the same. There was no loss of ROM with repetitive use. At the time of a September 2019 examination, the Veteran reported burning pain radiating down the arm, numbness, swelling, and sensitivity to cold. He reported daily moderate to severe flare-ups that last 30 minutes, are or precipitated by use of the right arm/shoulder, and are alleviated by ice. He reported being unable to lift his arms above head, lift anything above 20 pounds, being unable to drive for long periods to get on a ladder, and being unable to golf. There was no evidence of recurrent dislocation of the scapulohumeral joint or impairment of the humerus. On examination, flexion and abduction were to 90 degrees with pain that caused functional loss. There was evidence of pain with passive ROM and non-weight bearing. There was no loss of ROM with repetitive use. With repeated use over time, flexion and abduction remained the same, with pain, fatigue, weakness, and lack of endurance contributing to functional loss. With flare-ups, ROM also remained the same, while pain, weakness, and lack of endurance contributed to functional loss. There was no evidence of recurrent dislocation of the scapulohumeral joint or impairment of the humerus. The examiner described the functional impairment caused by the Veteran's right shoulder disorder as interfering with overhead use, repetitive pulling, pushing, throwing, and weightlifting over 20 pounds. During a September 2021 examination, the Veteran reported that he has a moderate amount of daily pain that is 5-6/10 in severity. He reported occasional flare-ups with mowing the lawn, playing golf, and driving. He reported that the flares last a couple of hours and are alleviated by ice and rest. He reported difficulty with overhead activities, wiping after a bowel movement, putting on a belt, and tying shoes. On examination, flexion of the shoulder was to 120 degrees and abduction was to 110 degrees, with pain. There was also evidence of pain with passive motion, but no loss of ROM. The Veteran was unable to perform repetitive-use testing due to pain. With repeated use over time, flexion was to 110 degrees and abduction to 100 degrees, with pain, fatigability, and lack of endurance contributing to functional loss. With flare-ups, flexion and abduction were to 85 degrees, with pain, fatigability, and lack of endurance contributing to functional loss. There was no evidence of recurrent dislocation of the scapulohumeral joint or impairment of the humerus. During a March 2022 examination, the Veteran described his symptoms as numbness, sharp pain, dull pain, and tingling sensations of the shoulder. He reported severe flare-ups that occur daily, lasting 2-3 hours, that are precipitated by overuse and are alleviated by rest and medication. He reported that his condition interferes with lifting heavy objects, working, and working out. On examination, flexion of the shoulder was to 100 degrees and abduction was to 70 degrees, with pain that caused functional loss. There was also evidence of pain with passive motion, but no loss of ROM. There was no loss of ROM with repetitive use. With repeated use over time, flexion and abduction remained the same, with pain and lack of endurance contributing to functional loss. With flare-ups, ROM also remained the same, while pain, weakness, and lack of endurance contributed to functional loss. The Veteran was noted to have recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements. There was no evidence of impairment of the humerus. The Veteran's VA treatment records show a history of complaints and treatments for shoulder pain, and limitations related to overhead activity. Based on the foregoing, the Board finds that an increased rating is not warranted at any point during the appellate period under Diagnostic Code 5201. Even with pain, repetitive use, and flare-ups, there is no evidence of limitation of motion of the arm to midway between the side and shoulder level. As such, an increased 30 percent rating under Diagnostic Code 5201 is not warranted. However, the March 2022 examiner indicated that the Veteran's right shoulder disability was manifested by recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements. Notably, this finding meets the criteria for an increased 30 percent rating under Diagnostic Code 5202. As this finding during the March 2022 examination is the first indication in the record that the Veteran suffers from such impairment, the Board finds that an increased 30 percent rating under Diagnostic Code 5202 is warranted as of March 24, 2022, the date of the examination. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) from October 30, 2020 The Veteran contends that he is unable to obtain or maintain substantially gainful employment due to, at least in part, his service-connected right shoulder disability. Therefore, the issue of entitlement to TDIU is part and parcel of the claim for an increased rating for a right shoulder disability and is appropriately before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16(b). Marginal employment generally shall be deemed to exist when a claimant'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. Id. Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including, but not limited, to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. In this case, the Veteran met the schedular requirements for a TDIU as of October 30, 2020. As of that date, the Veteran was assigned an 80 percent combined rating for adjustment disorder rated as 70 percent disabling; right shoulder disability rated as 20 percent disabling; right shoulder scar rated as 10 percent disabling; and a noncompensable rating for viral hepatitis. As the Veteran did not meet the schedular threshold for a TDIU prior to October 30, 2020, the issue of TDIU on an extraschedular basis will be addressed in the remand section below. In this case, there is conflicting information as to when the Veteran was last gainfully employed. The Veteran's most recent employer, The Oaks Golf Club, indicated that he was employed from May 2017 until April 2020, at which time he left the job due to a bad shoulder. See VA 21-4192 Request for Employment Information in Connection with Claim for Disability, submitted July 15, 2022. The form indicates that the Veteran worked in outside maintenance 25 hours a week and had earned $13,250 in the prior 12 months. Id. The Veteran himself reported that he was last employed by The Oaks Golf Club from 2019 until May 2021 as a golf instructor/maintenance worker; that he worked 30 hours per week; that he had earned $4,000-5,000 in the past 12 months; and that he was paid in cash in 2019 and 2020. See VA 21-4192 Request for Employment Information in Connection with Claim for Disability, submitted by July 15, 2022. The Veteran's VA treatment records also contain his reports of working at the golf course for 30 hours a week through at least October 2020. See CAPRI, records dated April 29, 2020; July 14, 2020; August 21, 2020; October 21, 2020. See also Medical Treatment Record - Government Facility, submitted December 14, 2020. More recently, the Veteran submitted a statement in December 2022, indicating that he worked only 50 hours per year in 2017 and 2018. He reported working approximately 30 hours per week in 2019 and 2020, being paid cash, and missing many workdays due to his right shoulder pain. Finally, he stated that he stopped working entirely in 2021. See VA 21-4138 Statement in Support of Claim, submitted December 22, 2022. Finally, the Veteran submitted earnings reports from the Social Security Administration (SSA), indicating that since 2011, the Veteran's earnings have been below the poverty threshold. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited March 8, 2023). Based on the foregoing, the Board concludes that the Veteran has not been gainfully employed during the appellate period. The remaining question for the Board is whether the Veteran's service connected disabilities rendered him unable to secure or follow a substantially gainful occupation. The Veteran's work history consists of occupations as a bridge tender, a cashier, and most recently in maintenance/golf instructor. He reports that his highest level of education is 3 years of college. At the time of a September 2019 VA examination for the Veteran's shoulder, he reported being unable to lift his arms above head, lift anything above 20 pounds, being unable to drive for long periods and get on a ladder, and being unable to golf. The examiner described the functional impairment caused by the Veteran's right shoulder disorder as interfering with overhead use, repetitive pulling, pushing, throwing, and weightlifting over 20 pounds. The Veteran was afforded a VA examination in October 2019. The examiner noted the Veteran suffers from symptoms including but not limited to the following: irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; chronic sleep impairment; difficulty adapting to stressful circumstances, including work or a worklike setting; irritability; and social withdrawal. Th Veteran submitted a private medical opinion from Dr. K. G. in October 2020. Dr. K. G. noted the Veteran's psychiatric symptoms as near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships. Dr. K. G. also reported that as a part-time golf instructor, he is also limited in that he can only offer verbal instruction and "gestures" due to his shoulder pain. She noted that he was only able to lift his arm to a 90-degree angle, that he experienced numbness when reaching overhead, and that he could not lift over 20 pounds. Dr. K. G. opined that the Veteran would have difficulty coping with the routine stressors of a work environment. At the time of a September 2021 VA examination for his right shoulder, the Veteran reported difficulty with overhead activities, wiping after a bowel movement, putting on a belt, and tying his shoes. The examiner indicated that the Veteran was unable to do any heavy lifting, overhead activities, and could only tolerate limit driving. Finally, the Veteran was afforded a VA Examination in March 2022. He reported severe flare-ups that occur daily, lasting 2-3 hours, that are precipitated by overuse and are alleviated by rest and medication. He also reported that his condition interferes with lifting heavy objects, working, and working out. The examiner indicated that the Veteran's right shoulder condition interferes with prolonged or repetitive overhead activities, pushing/ pulling over 10 minutes, or weightlifting over 5 pounds. As noted above, a July 2022 statement from the Veteran's former employer, The Oaks Golf Club, indicates that he was employed from May 2017 until April 2020, at which time he left the job due to a bad shoulder. Based on the foregoing, the Board concludes that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment since October 30, 2020. This finding considers evidence of an inability to work any job requiring physical labor, his work history consisting solely of manual labor jobs, and limited education to suggest transferrable skills. Here, the evidence establishes that the Veteran's service-connected right shoulder disability limits his ability to perform most tasks required by manual labor positions, such as overhead activities, pushing/ pulling, and heavy lifting. Additionally, the evidence establishes that the Veteran's shoulder condition resulted in an inability to perform his duties as a golf instructor. Moreover, the evidence also establishes that the Veteran's impairment related to his service-connected psychiatric condition would also prevent him from performing employment that is not physical in nature. To that extent, the evidence shows near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships. Accordingly, the Board finds that a TDIU is warranted for the period from October 30, 2022. REASONS FOR REMAND Entitlement to a TDIU for the period prior to October 30, 2020, on an extraschedular basis is remanded. As noted above, the Veteran did not meet the schedular requirements for a TDIU for the period prior to October 30, 2020. Thus, the Veteran can only be awarded a TDIU on an extraschedular basis for this period. However, the Board cannot make this determination in the first instance. See 38 C.F.R. § 4.16 (b), and see also Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001) (holding that the Board could not award TDIU on an extraschedular basis without first ensuring that the claim was referred to the appropriate first line authority for such consideration). Pursuant to 38 C.F.R. § 4.16(b), when the schedular requirement for a TDIU is not met, the issue should be referred to the Director of Compensation Service for extraschedular consideration. As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). In this case, the evidence of record raises the question of whether the Veteran was capable of securing and following substantially gainful employment, in spite of not meeting the schedular requirements for a TDIU. A September 2013 private evaluation from Dr. H. H. related to the Veteran's psychiatric condition indicates that the Veteran's suffered from frequent suicidal ideation, weekly panic attacks, poor concentration, and poor memory. On clinical examination, the Veteran's symptoms included near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; difficulty in establishing and maintaining effective work and social relationships; persistent danger of hurting self or others; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Dr. H. H. indicated that the Veteran could not sustain the stress from a competitive work environment and could not be expected to engage in gainful activity. Given the evidence of record, the Board finds that there is sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reasons of his service-connected disabilities during the appellate period. As the Board is prohibited from awarding extraschedular TDIU in the first instance, a remand is required to refer consideration of extraschedular TDIU to the Director of Compensation Service for the period in question. The matters are REMANDED for the following action: The Veterans Benefits Administration (VBA) must submit the Veteran's claim of entitlement to TDIU to the Executive Director, Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). Thereafter, the claim for TDIU on an extraschedular basis must be adjudicated. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.