SHOULDER REPLACEMENT (PROSTHESIS)

J. N. MOATS · 2024 · Case ID: 24031381

MIXED

Summary

The veteran, who served from October 1983 to January 1987, appeals the denial of entitlement to a rating in excess of 50 percent for his service-connected left shoulder total arthroplasty with osteoarthritis, and entitlement to a Total Disability based on Individual Unemployability (TDIU). The Board reviewed the evidence concerning the veteran's left shoulder disability, noting the application of rating criteria under DC 5051. A May 2023 VA examination indicated pain with all ranges of active shoulder motion, severe flare-ups occurring weekly, and functional loss impacting the ability to lift and carry objects. Despite these limitations and the veteran's employment history, including periods of unemployment and incarceration, the Board found that the veteran's service-connected disabilities have not precluded him from securing and following substantially gainful employment. The veteran has maintained full-time employment as a forklift operator/automobile assembly line worker since July 2015, with no significant missed work due to his disabilities, except for recovery from his shoulder replacement. While medical opinions suggested disability from work, the Board determined that the ultimate question of employability is for the adjudicator, not the medical examiner. The Board concluded that the evidence persuasively weighs against a TDIU finding. Service connection for the left shoulder disability was granted at 50 percent from April 1, 2023, which is the maximum schedular rating under DC 5051. The claim for a rating in excess of 50 percent and the TDIU claim were denied.

Rationale

Symptoms approximated criteria for 50 percent rating under DC 5051; Severe painful motion or weakness following shoulder replacement; Functional loss due to pain and limited motion

Special Benefit

TDIU

Diagnostic Code

5051

Docket No.

09-41 791

Full Decision Text

Citation Nr: 24031381
Decision Date: 10/02/24 Archive Date: 10/02/24

DOCKET NO. 09-41 791
DATE: October 2, 2024

ORDER

Entitlement to a 50 percent rating, from April 1, 2023, for status post left shoulder total arthroplasty with osteoarthritis is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to a rating in excess of 50 percent, from April 1, 2023, for status post left shoulder total arthroplasty with osteoarthritis is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include consideration of referral for extraschedular TDIU, is denied.

FINDINGS OF FACT

1. During the claim period since April 1, 2023, the Veteran's status post left shoulder total arthroplasty with osteoarthritis has been manifested by chronic residuals consisting of severe painful motion or weakness in the left upper extremity.

2. During the claim period since November 3, 2006, the Veteran has been service-connected for the following disabilities: status post left shoulder total arthroplasty with osteoarthritis (previously rated as left shoulder dislocation status post-surgical repair with osteoarthritis), rated 20 percent disabling from November 3, 2006 through February 15, 2022, 100 percent disabling from February 16, 2022 through March 31, 2023, and now 50 percent disabling from April 1, 2023; left hand radicular nerve impairment, rated 30 percent disabling, from January 29, 2009; right shoulder rotator cuff impingement, rated 20 percent disabling from January 29, 2009; painful left shoulder scarring, rated 10 percent disabling, from November 3, 2006; and left shoulder scars, rated noncompensable, from November 3, 2006; his combined disability rating is 30 percent from November 3, 2006 through January 28, 2009, 70 percent from January 29, 2009 through February 15, 2022, 100 percent from February 16, 2022 through March 31, 2023, and now 80 percent from April 1, 2023.

3. The evidence persuasively weighs against finding that the Veteran's service-connected disabilities preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him.

CONCLUSIONS OF LAW

1. The criteria for a 50 percent rating, from April 1, 2023, for status post left shoulder total arthroplasty with osteoarthritis, are met. 3 8 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5051 (in effect prior to and since February 7, 2021).

2. The criteria for a rating in excess of 50 percent, from April 1, 2023, for status post left shoulder total arthroplasty with osteoarthritis, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DCs) 5051, 5200-5203 (in effect prior to and since February 7, 2021).

3. The criteria for a TDIU due to service-connected disabilities are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1983 to January 1987.

These matters initially came before the Board of Veterans' Appeals (Board) from a May 2007 rating decision, in which the agency of original jurisdiction (AOJ) denied entitlement to a rating in excess of 10 percent for status post residuals of left shoulder injury.

The Veteran testified before the undersigned at an October 2012 hearing and a
disabilities are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1983 to January 1987.

The Veteran testified before the undersigned at an October 2012 hearing and a transcript of the hearing is associated with the claims file.

In July 2014, the Board expanded the appeal to include the issue of entitlement to a TDIU, as part and parcel of the claim for an increased rating for the service-connected left shoulder disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue, as well as the issue of entitlement to an increased rating for the service-connected left shoulder disability for further development.

In October 2018 and November 2020, the Board again remanded these matters for further development.

In August 2022, the AOJ awarded a temporary 100 percent rating for the service-connected left shoulder disability (re-characterized as status post left shoulder total arthroplasty with osteoarthritis), from February 16, 2022 through March 31, 2023. A 20 percent rating was resumed from April 1,2023.

In April 2023, the Board denied entitlement to a rating in excess of 20 percent for the service-connected left shoulder disability prior to February 16, 2022. The issues of entitlement to an increased rating for the service-connected left shoulder disability from April 1, 2023 (the day after the temporary 100 percent rating ended) and entitlement to a TDIU were remanded for further development.

In the July 2014, October 2018, November 2020, and April 2023 remands, the Board instructed the AOJ to, among other things, attempt to obtain updated information concerning the Veteran's employment, afford the Veteran examinations to determine the severity of his service-connected left shoulder disability and its impact upon his ability to work, obtain his outstanding VA treatment records, readjudicate the issue of entitlement to an increased rating for the service-connected left shoulder disability from April 1, 2023, and readjudicate the issue of entitlement to a TDIU once the Board's remand directives regarding the issues of entitlement to higher ratings for left shoulder disability and right shoulder disability were completed (the issue of entitlement to a higher rating for right shoulder disability is part of a separate appeal stream and will be the subject of a future Board decision).

Pursuant to the Board's remands, the Veteran was asked to provide updated employment information by way of June 2019 and February 2021 letters. Copies of "Veteran's Application for Increased Compensation Based on Unemployability" forms (VA Form 21-8940) were included with the letters. The Veteran was afforded VA shoulder examinations in July 2015, January 2021, and May 2023, and all outstanding VA treatment records were obtained and associated with the claims file.

Moreover, in an October 2023 rating decision, the AOJ readjudicated the issue of entitlement to an increased rating for the service-connected left shoulder disability from April 1, 2023 and awarded a 50 percent rating, from May 2, 2023. The issues of entitlement to higher ratings for the service-connected left shoulder disability and entitlement to a TDIU were also readjudicated by way of an October 2023 supplemental statement of the case (SSOC), and the issue of entitlement to a higher rating for the service-connected right shoulder disability was re-adjudicated following completion of the Board's prior remand directives by way of an August 2024 SSOC. Therefore, the AOJ substantially complied with the Board's pertinent July 2014, October 2018, November 2020, and April 2023 remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

I. Increased Rating

Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. If two ratings are potentially applicable, 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. § 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59.

Entitlement to an increased rating for status post left shoulder total arthroplasty with osteoarthritis from April 1, 2023, rated 20 percent disabling from April 1, 2023 through May 1, 2023 and 50 percent disabling from May 2, 2023

The Veteran's status post left shoulder total arthroplasty with oste
25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59.

The Veteran's status post left shoulder total arthroplasty with osteoarthritis is rated under 38 C.F.R. § 4.71a, DC 5051 as shoulder replacement (prosthesis). The Board notes that during the claim period, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327.

In this case, the claim period for the Veteran's left shoulder disability is dated prior to and since February 7, 2021. However, as applicable to this case, the Board points out that the rating criteria for shoulder replacement under DC 5051 were not amended by the regulatory changes. Specifically, under both the old and the new versions of DC 5051, a 100 percent rating is assigned for one year following implantation of a prosthesis. Thereafter, a maximum 50 percent rating for the minor extremity is warranted when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to DCs 5200 and 5203. The minimum rating is 20 percent under DC 5051. 38 C.F.R. § 4.71a, DC 5051 (in effect prior to and since February 7, 2021).

The normal ranges of motion of the shoulder are 180 degrees of forward elevation (flexion) and abduction (90 degrees is shoulder level), and 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I.

Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds, for the following reasons, that a 50 percent rating, but no higher, for status post left shoulder total arthroplasty with osteoarthritis is warranted during the entire period from April 1, 2023.

A May 2023 VA shoulder examination report indicates that the Veteran was right hand dominant and that he experienced left shoulder soreness and decreased range of motion. He was still able to work, but there was functional loss/impairment in that his arms were sore after work every day. Severe flare ups of left shoulder symptoms occurred one to two times per week, were precipitated by work, and were alleviated by rest and medication.

Examination revealed that the ranges of left shoulder motion were flexion to 70 degrees, abduction to 75 degrees, internal rotation to 40 degrees, and external rotation to 20 degrees. Right shoulder range of motion testing was not performed because it was a damaged joint. There was pain with all ranges of active shoulder motion. The ranges of shoulder motion themselves contributed to a functional loss in that the Veteran had an impaired ability to flex and extend his shoulder. The passive ranges of left shoulder motion were the same as the active ranges of motion and there was pain with passive flexion, abduction, and external rotation. Overall, there was pain with weight bearing, active motion, and passive motion, and the pain caused functional loss (i.e., an impaired ability to flex and extend the joint). There was moderate localized tenderness or pain on palpation of the lateral region of the left shoulder, but there was no objective 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 range of motion after three repetitions. He was not being examined immediately after repeated use over time or during a flare up and the procured evidence suggested that pain significantly limited functional ability with repeated use over time, and that pain and fatigability significantly limited functional ability during flare ups. Specifically, the ranges of left shoulder motion after repeated use over time and during flare ups would be flexion to 65 degrees, abduction to 70 degrees, internal rotation to 35 degrees, and external rotation to 15 degrees. There were additional factors contributing to disability in terms of less movement than normal (decreased mobility on active range of motion interfered with the Veteran's ability to lift above his head, pull, and carry heavy items).

Moreover, there was no muscle atrophy, ankylosis of the scapulohumeral (glenohumeral) articulation, or shoulder instability, dislocation, or labral pathology, the Veteran did not have any mechanical symptoms, and there were no residuals of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. There was no clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition or other impairment, there was no tenderness on palpation of the acromioclavicular joint, the Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus, and he did not have malunion of the humerus with moderate or marked deformity. The Veteran underwent left shoulder arthroscopic surgery in April 2001 and there was residual pain and stiffness. He underwent a total left shoulder replacement in February 2022, and he experienced chronic residuals consisting of severe painful motion or weakness. He experienced scars associated with his left shoulder disability, but there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis.

A diagnosis of status post left shoulder total arthroplasty with osteoarthritis was provided. This disability impacted the Veteran's ability to work in that he was less willing and able to use his left upper extremity due to increased pain and stiffness of the left shoulder, and it was difficult to lift and carry objects weighing more than 15 to 20 pounds. This would interfere with duties that require increased physical activity of the left shoulder, such as painting. However, the left shoulder disability would not render the Veteran unable to perform non-physical occupational duties.

The above evidence reflects that the Veteran underwent a total left shoulder replacement in February 2022. A 100 percent rating was assigned pursuant to DC 5051 from February 16, 2022 (the date of the shoulder replacement surgery) through March 31, 2023, the minimum 20 percent rating under DC 5051 was assigned from April 1, 2023 through May 1, 2023, and a 50 percent rating was assigned from May 2, 2023. With respect to the remaining claim period on appeal from April 1, 2023, the above evidence reflects that the Veteran experienced left shoulder pain, tenderness, and limited motion. There are severe flare ups of shoulder symptoms on a weekly basis (sometimes multiple times per week) and his shoulder symptoms limit his ability to lift, carry, and perform other physical activities. Also, the examiner who conducted the May 2023 VA shoulder examination
of the shoulder replacement surgery) through March 31, 2023, the minimum 20 percent rating under DC 5051 was assigned from April 1, 2023 through May 1, 2023, and a 50 percent rating was assigned from May 2, 2023. With respect to the remaining claim period on appeal from April 1, 2023, the above evidence reflects that the Veteran experienced left shoulder pain, tenderness, and limited motion. There are severe flare ups of shoulder symptoms on a weekly basis (sometimes multiple times per week) and his shoulder symptoms limit his ability to lift, carry, and perform other physical activities. Also, the examiner who conducted the May 2023 VA shoulder examination (the only shoulder examination conducted during the period since April 1, 2023) noted that fatigability and/or pain significantly limited functional ability of the left shoulder following repeated use and during flare ups, and indicated that the Veteran experienced severe painful motion or weakness following his shoulder replacement.

Moreover, although the Veteran has taken medication which reduces the severity of his shoulder pain, the Board points out that it "may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In other words, the Board cannot consider the ameliorative effects of medication unless medication is referenced in the applicable diagnostic code. That is precisely the situation in this case. The Veteran's medication has ameliorated the effects of his left shoulder disability. Consequently, the Board finds that his shoulder symptoms would have remained consistently severe throughout the entire claim period without the medication.

Overall, in light of the extent of the Veteran's left shoulder pain, the significant functional limitations caused by his left shoulder disability, the extent of the flare ups associated with the disability (reported as severe on a weekly basis), and the finding of the examiner who conducted the May 2023 shoulder examination (the only VA shoulder examination conducted during the period from April 1, 2023) that the Veteran experienced chronic residuals consisting of severe painful motion or weakness, the Board finds that the symptoms of his status post left shoulder total arthroplasty with osteoarthritis have most closely approximated the criteria for a 50 percent rating under DC 5051 (which contemplates chronic residuals consisting of severe painful motion or weakness) during the entire claim period since April 1, 2023. This is the maximum schedular rating under DC 5051.

The Board also finds that a rating in excess of 50 percent for status post left shoulder total arthroplasty with osteoarthritis is not warranted at any time during the claim period from April 1, 2023. Specifically, a rating higher than 50 percent for shoulder disability involving the minor extremity (the Veteran is right hand dominant) is only warranted under both the old and the amended rating criteria if there is loss of the head of the humerus (flail shoulder). In this regard, a 70 percent rating for loss of the head of the humerus of the minor extremity is provided under DC 5202. In this case, there is no evidence that the Veteran's service-connected left shoulder disability has resulted in loss of the head of the humerus at any time during the claim period since April 1, 2023, and the absence of such a finding is documented in the May 2023 VA shoulder examination report. Therefore, a 50 percent rating, but no higher, from April 1, 2023 for status post left shoulder total arthroplasty with osteoarthritis is warranted.

As a final point, the Board notes that in conjunction with the claim for an increased rating for status post left shoulder total arthroplasty with osteoarthritis, other than the issue of entitlement to a TDIU which is addressed below, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

II. TDIU

VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad
kin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

II. TDIU

The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. As pertinent to this case, disabilities of one or both upper extremities or disabilities resulting from common etiology or a single accident will be considered as one disability for the purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a).

The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned 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. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a).

In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.

Entitlement to a TDIU due to service-connected disabilities

Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the Veteran's service-connected disabilities have not precluded all substantially gainful employment for which his education and occupational experience would otherwise qualify him at any time during the claim period.

The Veteran's claim for an increased rating for his service-connected left shoulder disability was received on November 3, 2006 (see a November 2006 "Statement in Support of Claim" form (VA Form 21-4138)). As his TDIU claim was raised as part and parcel of his increased rating claim, the claim period for his TDIU claim dates back to November 3, 2006.

During the claim period since November 3, 2006, the Veteran has been service-connected for the following disabilities: status post left shoulder total arthroplasty with osteoarthritis (previously rated as left shoulder dislocation status post-surgical repair with osteoarthritis), rated 20 percent disabling from November 3, 2006 through February 15, 2022, 100 percent disabling from February 16, 2022 through March 31, 2023, and now 50 percent disabling from April 1, 2023; left hand radicular nerve impairment, rated 30 percent disabling, from January 29, 2009; right shoulder rotator cuff impingement, rated 20 percent disabling, from January 29, 2009; painful left shoulder scarring, rated 10 percent disabling, from November 3, 2006; and left shoulder scars, rated noncompensable, from November 3, 2006. His combined disability rating is 30 percent from November 3, 2006 through January 28
15, 2022, 100 percent disabling from February 16, 2022 through March 31, 2023, and now 50 percent disabling from April 1, 2023; left hand radicular nerve impairment, rated 30 percent disabling, from January 29, 2009; right shoulder rotator cuff impingement, rated 20 percent disabling, from January 29, 2009; painful left shoulder scarring, rated 10 percent disabling, from November 3, 2006; and left shoulder scars, rated noncompensable, from November 3, 2006. His combined disability rating is 30 percent from November 3, 2006 through January 28, 2009, 70 percent from January 29, 2009 through February 15, 2022, 100 percent from February 16, 2022 through March 31, 2023, and now 80 percent from April 1, 2023. As disabilities of one or both upper extremities or disabilities resulting from common etiology or a single accident will be considered as one disability for the purposes of one 60 percent disability or one 40 percent disability, the Veteran meets the percentage requirements for a TDIU during the entire period from January 29, 2009. See 38 C.F.R. § 4.16 (a).

The Veteran's service-connected disabilities do not meet the schedular requirements for a TDIU during the claim period prior to January 29, 2009. However, even when the percentage requirements under 38 C.F.R. § 4.16 (a) are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). In Ray, 31 Vet. App. at 66, the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." For the following reasons, that standard has not been met in this case at any time during the claim period prior to January 29, 2009.

In addition to the information documented in the May 2023 VA shoulder examination report, as set forth above, private treatment records dated from April 2001 to September 2001 (records from Oak Park Hospital, St. Francis Hospital and Health Center, and Midwest Orthopaedics), a September 2023 "Veteran's Application for Compensation and/or Pension" form (VA Form 21-526), the reports of VA shoulder examinations dated in December 2003 and January 2008, a February 2008 statement from the Veteran, a September 2009 letter from R.L. Silver, M.D., an April 2011 VA shoulder examination report, a September 2012 letter from Dr. Silver, the Veteran's testimony during the October 2012 Board hearing, a December 2014 statement from the Veteran, a December 2014 VA Form 21-8940, income tax records dated in 2014, an April 2015 statement from the Veteran's employer, a May 2015 Social Security Administration (SSA) state prisoner computer match report, the reports of VA shoulder and neurological examinations dated in July 2015, a May 2016 VA neurological examination report, a January 2017 VA Form 28-1900, VA treatment records dated from January 2017 to November 2019, a July 2020 VA scars examination report, a January 2021 VA shoulder examination report, a March 2021 VA Form 21-8940, the Veteran's testimony during a March 2021 Board hearing, a March 2021 VA Form 21-4192, an April 2021 VA Form 27-0820, an October 2021 VA Form 21-4192 completed by the Veteran's employer, VA treatment records dated from January to October 2022, the reports of VA shoulder, scar, and neurological examinations dated in January 2023, VA treatment records dated from February 2023 to April
0, VA treatment records dated from January 2017 to November 2019, a July 2020 VA scars examination report, a January 2021 VA shoulder examination report, a March 2021 VA Form 21-8940, the Veteran's testimony during a March 2021 Board hearing, a March 2021 VA Form 21-4192, an April 2021 VA Form 27-0820, an October 2021 VA Form 21-4192 completed by the Veteran's employer, VA treatment records dated from January to October 2022, the reports of VA shoulder, scar, and neurological examinations dated in January 2023, VA treatment records dated from February 2023 to April 2023, a May 2023 VA scar examination report, a September 2023 VA general medicine note, and the Veteran's SSA disability records indicate that he graduated high school and received some college credits. After service, he initially worked loading/unloading trucks on docks and as a car salesman for approximately 20 years. He stopped working as a car salesman following a severe head injury sustained in a motorcycle accident in 2003, which resulted in memory loss, impaired vision, and loss of taste and smell. He was awarded SSA disability benefits in 2005 on the basis of affective/mood disorders and diabetes mellitus, but he also reported that he was unable to work from 2007 to 2014 due to his shoulder disabilities.

The Veteran was hired as a car technician in July 2014, but was laid off from that position in October 2014. His employer explained in its April 2015 statement that numerous attempts were made to recall the Veteran to work following his October 2014 layoff, but that the Veteran had experienced a death in his family, he was unable to return as needed, and it did not seem as if he wanted to return to his position. The Veteran also had a period of incarceration from November 2014 to April 2015. He subsequently began working on a full time basis as a forklift operator/automobile assembly line worker in July 2015. This job involves significant manual labor, he has remained employed on a full time basis in that position since that time, and he has not missed any work due to his disabilities (with the exception of the recovery period from his left shoulder replacement, for which he was awarded a temporary 100 percent rating).

As for the symptoms of the Veteran's service-connected disabilities during the claim period, he has experienced bilateral shoulder pain, stiffness, weakness, and limited motion, left shoulder dislocations and clicking, left upper extremity pain, numbness, paresthesias/dysesthesias, and weakness (4/5), impaired left upper extremity reflexes (1+), and painful left upper extremity scars. He has also experienced non service-connected diabetes and gout involving his knees and feet. His service-connected disabilities limit his ability to lift above his head, reach, and carry, his hands are weak after a shift at work, and he could have problems performing jobs that involve strenuous physical work (such as lifting, pushing, and pulling heavy loads and reaching overhead). He could tolerate other forms of light duty or non-physical work.

In his September 2009 letter, Dr. Silver reported that the Veteran experienced significant pain and stiffness in his left shoulder, with limited motion and weakness. This also caused compensatory discomfort in his right shoulder due to compensatory overuse. These issues caused the Veteran to be disabled with regard to his ability to work.

In his September 2012 letter, Dr. Silver reported that the Veteran had severely limited range of bilateral shoulder motion (90 degrees of forward flexion and lateral abduction), positive impingement, Hawkin's, and drop arm signs, and subacromial crepitation. This caused overcompensation of his right shoulder, resulting in right shoulder rotator cuff impingement. Overall, the Veteran was "basically disabled from his ability to work" due to his bilateral shoulder disabilities, and this was "on a permanent basis."

The Veteran contends that he entitled to a TDIU for time during the claim period that he was unemployed, which he contends was due to his shoulder disabilities. For instance, the Veteran's representative reported in an October 2021 statement (VA Form 21-4138) that a TDIU is warranted during the period from November 1, 2014 through July 14, 2015. The Veteran is competent to report that his service-connected disabilities precluded him from working, as the question of whether a veteran can perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed.
a TDIU for time during the claim period that he was unemployed, which he contends was due to his shoulder disabilities. For instance, the Veteran's representative reported in an October 2021 statement (VA Form 21-4138) that a TDIU is warranted during the period from November 1, 2014 through July 14, 2015. The Veteran is competent to report that his service-connected disabilities precluded him from working, as the question of whether a veteran can perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Nevertheless, the evidence supports a finding that his service-connected disabilities have not precluded him from securing and following substantially gainful employment at any time during the claim period.

The Board acknowledges that the Veteran's service-connected disabilities have resulted in some functional impairments and have impacted his ability to perform some physical tasks. However, the evidence does not indicate that he has been unemployed and unable to secure or follow any substantially gainful occupation due to service-connected disabilities. Rather, the evidence reflects that he had a long period of employment as a car salesman, but that this ended due to significant non service-connected impairments caused by a serious head injury from a motorcycle accident. He was hired as a car technician in July 2014, but was laid off in October 2014. His employer explained that they attempted to recall him to work on numerous occasions after he was laid off, but that the Veteran was unable to return to work at that time due to a death in the family and it did not seem as if he wanted to return to work. He was also unable to work from November 2014 to April 2015 because he was incarcerated during that time. He has subsequently been employed on a full time basis as a forklift operator/automobile assembly line worker, he has been able to perform this strenuous physical work despite his service-connected disabilities, and he has not missed any significant time from work due to his disabilities (with the exception of the period of recovery following his left shoulder replacement, for which he was awarded a temporary 100 percent rating). Hence, despite the occupational limitations and impairments caused by his service-connected disabilities, he has maintained the ability to perform substantially gainful employment and is still gainfully employed.

The Board acknowledges that there are medical opinions of record that the Veteran was unable to work due to service-connected shoulder disability (see Dr. Silver's September 2009 and September 2012 letters). However, medical examiners are only responsible for providing a full description of the effects of disability upon a veteran's ordinary activity. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib, 733 F.3d at 1354.

Overall, the evidence persuasively weighs against a finding that the Veteran's service-connected disabilities have prevented him from securing and following all substantially gainful employment consistent with his education and occupational experience at any time during the claim period. Although his service-connected disabilities have resulted in some work impairments, his own reports and the above lay and medical evidence support a finding that his service-connected disabilities alone (either individually or collectively) do not result in an inability to secure and follow substantially gainful employment.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's service-connected disabilities, alone, have precluded all substantially gainful employment for which his education and occupational experience would otherwise qualify him at any time during the claim period. Therefore, the record does not contain sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities at any time during the claim period. Accordingly, the criteria for remanding this matter for referral for extraschedular consideration during the period prior to January 29, 2009 are not met. As the evidence persuasively weighs against the claim, the benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), is not for application as to this matter. Lynch v. McDonough, 21 F.4 th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

J. N. MOATS
of his service-connected disabilities at any time during the claim period. Accordingly, the criteria for remanding this matter for referral for extraschedular consideration during the period prior to January 29, 2009 are not met. As the evidence persuasively weighs against the claim, the benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), is not for application as to this matter. Lynch v. McDonough, 21 F.4 th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

J. N. MOATS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Elwood, 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.

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