Citation Nr: 24010282 Decision Date: 03/04/24 Archive Date: 03/04/24 DOCKET NO. 15-42 874 DATE: March 4, 2024 ORDER An increased disability rating in excess of 20 percent for chronic right (major) shoulder strain (right shoulder disability) is denied. An increased disability rating in excess of 20 percent for chronic left (minor) shoulder strain (left shoulder disability) is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entire rating period on appeal from April 15, 2017, the right shoulder disability has been manifested by symptoms of pain, painful movement that are productive of limitation of motion of the right arm at shoulder level, without ankylosis or fibrous union of the humerus. 2. For the entire rating period on appeal from April 15, 2017, the left shoulder disability has been manifested by symptoms of pain, painful movement that are productive of limitation of motion of the left arm at shoulder level, without limitation of motion of the left arm midway between side and shoulder level, ankylosis, or fibrous union of the humerus. 3. The Veteran's service-connected disabilities have not rendered the Veteran unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. For the entire rating period from April 15, 2017, the criteria for an increased disability rating in excess of 20 percent for the right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. For the entire rating period from April 15, 2017, the criteria for an increased disability rating in excess of 20 percent for the left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from July 1973 to August 1975. These matters were previously before the Board in May 2021, at which time the Board remanded the matters for VA to provide a appropriate VA examinations. As the Veteran underwent the ordered VA examinations in September 2023 and October 2023, the Board finds that the May 2021 remand directives have been substantially complied with and the appeal has been properly returned to the Board for appellate adjudication. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.40 and § 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). 1. Rating the right shoulder disability 2. Rating the left shoulder disability For the entire rating period on appeal from April 15, 2017, the Veteran is in receipt of 20 percent disability ratings for the service-connected right (major) shoulder disability and the left (minor) shoulder disability under Diagnostic Code 5201. 38 C.F.R. § 4.71a. The Veteran asserts that increased disability ratings are warranted due to constant pain in the shoulders. See October 2022 Statement in Support of Claim. Disorders of the shoulders are rated under Diagnostic Codes 5200 through Diagnostic Codes 5203 of 38 C.F.R. § 4.71a. The above-referenced Diagnostic Codes (DC) provide for different ratings in certain instances depending on whether the shoulder involved is the major or minor joint. An October 2023 VA examination report reflects the Veteran is right hand dominant. Under DC 5201, limitation of motion of an arm at the shoulder level warrants a 20 percent rating whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 30 percent rating is warranted for the major extremity and 20 percent for the minor extremity. When motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and 30 percent for the minor extremity. 38 C.F.R. § 4.71a. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003). After a review of all the lay and medical evidence of record, the Board finds that, for the entire rating period on appeal from April 15, 2017, increased disability ratings in excess of 20 percent for the right and left shoulder disabilities are not warranted. For the rating period from April 15, 2017, the right shoulder disability has not been manifested by limitation of the right arm midway between side and shoulder level (criteria for a 30 percent rating), favorable ankylosis with abduction to 60 degrees with the right arm able to reach the mouth and head (criteria for a 30 percent rating under DC 5200), recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements (criteria for a 30 percent rating under DC 5202), or malunion of the humerus with marked deformity (criteria for a 30 percent rating under DC 5202). For the rating period from April 15, 2017, the left shoulder disability has not been manifested in limitation of the left arm to 25 degrees from the side (criteria for a 30 percent rating), intermediate ankylosis of the scapulohumeral articulation between favorable and unfavorable (criteria for a 30 percent rating under DC 5200), or fibrous union of the humerus (criteria for a 40 percent rating under DC 5202). Instead, the October 2023 VA examination report shows the right shoulder disability, at worst, resulted in limitation of the right arm to 135 degrees of flexion and 125 degrees of abduction during episodes of flare ups, which does not more nearly approximate limitation of the right arm midway between side and shoulder level. The October 2023 VA examination report also shows, at worst, the left shoulder disability resulted in limitation of the left arm to 155 degrees and abduction to 115 degrees during episodes of flare ups, which does not more nearly approximate limitation of the left arm to 25 degrees from the side. VA and private treatment records similarly do not demonstrate limitation of the right arm midway between side and shoulder or limitation of the left arm to 25 degrees from the side. The Veteran has not described specific limitations of motion that would warrant a higher rating. Based on the foregoing, the Board finds that the persuasive weight of the lay and medical evidence is against assignment of increased disability ratings in excess of 20 percent for the right and left shoulder disabilities for the entire rating period on appeal from April 15, 2017 forward. 3. A TDIU A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Individual unemployability must be determined without regard to any non service connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. For the period from April 15, 2017, the Veteran is service-connected for persistent depressive disorder (50 percent disabling); chronic cervical strain (20 percent disabling); a right shoulder disability (20 percent disabling); and a left shoulder disability (20 percent disabling); therefore, the service-connected disabilities have met the regular schedular rating criteria for TDIU eligibility under 38 C.F.R. § 4.16(a). The Veteran asserts being unable to obtain or maintain substantially gainful employment due to depression and constant pain in the neck and shoulders, as well as constant pain due to non-service-connected spine, lower back, left thigh, feet, arms, and tingling in the fingers; the Veteran additionally asserts he suffers from substance abuse caused by his service-connected persistent depressive disorder and that he suffered a (non-service-connected) stroke in May 2020. See October 2022 Statement in Support of Claim. After a review of all the evidence, lay and medical, the Board finds that the persuasive weight of the evidence shows that the Veteran has not been rendered unable to obtain or maintain substantially gainful employment due to service-connected disabilities. Social Security Administration (SSA) records in this case reflect the Veteran completed the 12th grade and was last employed as a temporary laborer in June 2012. SSA records reflect the Veteran reported several temporary laborer jobs, working as an assembly worker and telemarketer. A September 2016 SSA examination report reflects limitation of cervical spine movement with discomfort. Although the Veteran reported bilateral shoulder pain for a number of years, range of motion in the arms were found to be normal. The September 2016 SSA examination report also reflects the Veteran complained of frequent back pain with findings of difficulty with prolonged standing and walking; however, the back symptoms and limitations of function are not the result of a service-connected disability. A September 2023 VA psychiatric examination report reflects the VA examiner's assessment that the Veteran's psychiatric symptoms would not preclude the ability to be employed, although symptoms of depressed mood may lessen work efficiency and generalized distrust of others could cause difficulties in a public service position. The October 2023 VA examination report shows right and left shoulder symptoms have resulted in difficulty performing occupational tasks that require lifting, pushing and pulling, and that the Veteran is unable to raise his arms overhead or hold objects in front of him; however, the October 2023 VA examiner found the Veterans right and left shoulder symptoms do not preclude sedentary desk work. The common meaning of the word "sedentary" is "doing or requiring much sitting" or "not physically active." Miriam Webster's Online Dictionary. While the above evidence demonstrates that the Veteran's service-connected musculoskeletal disabilities may preclude him from being gainfully employed in an occupation that requires physical labor, the evidence also shows that the service-connected disabilities would not preclude the Veteran from obtaining or maintaining substantially gainful employment in a sedentary occupation similar to a telemarketer, which is a position the Veteran has experience in. Based on the foregoing, the Board finds that the persuasive weight of the lay and medical evidence demonstrates that the service connected disabilities did not prevent the Veteran from obtaining or maintaining substantially gainful employment for any period from April 15, 2017. As the persuasive weight of the lay and medical evidence is against a finding for a TDIU, the appeal for TDIU must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.