CERVICAL SPINE LIMITATION OF MOTION

Summary

The Veteran served from January 1980 to September 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from two May 2021 rating decisions by the VA Regional Office (RO). The Veteran sought service connection for a cervical spine disability, claiming it was incurred in service or related to service, and also as secondary to his service-connected left shoulder disability. He also appealed the denial of an increased rating for adjustment disorder with depressed and anxious mood, left shoulder dislocation, left shoulder traumatic osteoarthritis, right shoulder degenerative arthritis, and scars on the left shoulder. Additionally, the Veteran appealed the denial of TDIU and an earlier effective date for Dependent's Education Assistance (DEA) benefits. The Board reviewed the evidence of record at the time of the RO decisions. The Veteran's cervical spine claim was denied as the evidence did not establish in-service incurrence, manifestation within one year of discharge, or relation to service or other service-connected disabilities. The Board granted an increased rating for headaches to 50 percent effective January 30, 2019, finding the criteria met based on the benefit of the doubt. However, the Board denied increased ratings for adjustment disorder with depressed and anxious mood, left shoulder dislocation, left shoulder traumatic osteoarthritis, right shoulder degenerative arthritis, and left shoulder scars, finding the criteria for higher ratings were not met. TDIU and DEA benefits were denied as the Veteran was not precluded from substantially gainful employment prior to August 22, 2018, nor otherwise eligible for DEA benefits. The Board found the evidence persuasive against the Veteran's claims for higher ratings for headaches prior to January 30, 2019, and for his shoulder conditions and scars.

Rationale

No in-service incurrence of disease or injury; No manifestation within one year of discharge; Not related to service or caused/aggravated by service-connected disabilities

Full Decision Text

Citation Nr: A26038527
Decision Date: 04/24/26	Archive Date: 04/24/26

DOCKET NO. 220418-236639
DATE: April 24, 2026

ORDER

1. Entitlement to service connection for a cervical spine disability, to include cervical spondylosis with cervical strain and C8-T1 radiculopathy, is denied.

2. Entitlement to disability rating of 50 percent headaches as of January 30, 2019, but no earlier, is granted, subject to the laws and regulations governing the award of monetary benefits.

3. Entitlement to a disability rating in excess of 50 percent for adjustment disorder with depressed and anxious mood prior to March 10, 2021, and in excess of 70 percent, thereafter, is denied.

4. Entitlement to a disability rating in excess of 20 percent for left (non-dominant) shoulder with traumatic osteoarthritis is denied.

5. Entitlement to a disability rating in excess of 20 percent for left shoulder dislocation is denied.

6. Entitlement to a disability rating in excess of 20 percent for right shoulder (dominant) degenerative arthritis prior to May 12, 2021, and in excess of 40 percent, thereafter, is denied.

7. Entitlement to a compensable disability rating for scars, left shoulder, is denied.

8. Entitlement to a separate disability rating in excess of 10 percent for painful scar, left shoulder, earlier than May 12, 2021, is denied.

9. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) prior to August 22, 2018, is denied.

10. Entitlement to an effective date earlier than August 22, 2018, for the award of Dependent's Education Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied.

FINDINGS OF FACT

1. The Veteran did not experience an in-service incurrence of a disease or injury relating to a cervical spine disability and a cervical spine disability, to include cervical spondylosis with cervical strain and C8-T1 radiculopathy, did not have its onset in service, was not manifested within one year of service discharge, and is not otherwise related to service or is caused or aggravated by a service-connected left shoulder disability or other service-connected disabilities.

2. Affording the Veteran the benefit of the doubt, as of January30, 2019, headaches manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

3. The persuasive weight of the evidence is against finding the Veteran's headaches manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability prior to January 30, 2019.

4. The Veteran's adjustment disorder with depressed and anxious mood has not been manifested by occupational and social impairment with deficiencies in most areas prior to March 1, 2021, nor total occupational and social impairment at any point during the appeal period.

5. During the period on appeal, the Veteran's left shoulder disability has manifested in recurrent dislocation of the humerus at scapulohumeral joint with frequent episodes and guarding of all arm movements, but no ankylosis or the functional equivalent thereof, and no clavicle or scapula impairment. Arm limitation of motion has not been limited to 25 degrees or less from the side.

6. Prior to May 12, 2021, the Veteran's right shoulder disability has not shown limitation of motion at least midway between side and shoulder level, flexion and/or abduction limited to 45 degrees and for 40 percent rating flexion and/or abduction limited to 25 degrees from side and has not exhibited ankylosis, labral pathology, clavicle or scapula impairment with malunion or nonunion, loss of head of the humerus, an acromioclavicular (AC) joint condition, or a sternoclavicular joint condition at any point of the appeal period.

7. Throughout the appeal period, the Veteran's scars, left shoulder had not been shown to deep and nonlinear and at least 6 square (sq.) inches (39 sq. centimeters) in size; superficial and nonlinear involving an area of 144 sq. inches (929 sq. cm) or greater in size; or otherwise disabling.

8. The Veteran did not exhibit scars of the left shoulder that are unstable or painful earlier than May 12, 2021, and only one scar was "painful."

9. Prior to August 22, 2018, the Veteran was not precluded from securing or following a substantially gainful occupation due to service-connected disabilities.

10. The Veteran did
 any point of the appeal period.

7. Throughout the appeal period, the Veteran's scars, left shoulder had not been shown to deep and nonlinear and at least 6 square (sq.) inches (39 sq. centimeters) in size; superficial and nonlinear involving an area of 144 sq. inches (929 sq. cm) or greater in size; or otherwise disabling.

8. The Veteran did not exhibit scars of the left shoulder that are unstable or painful earlier than May 12, 2021, and only one scar was "painful."

9. Prior to August 22, 2018, the Veteran was not precluded from securing or following a substantially gainful occupation due to service-connected disabilities.

10. The Veteran did not have permanent total service-connected disability or disabilities, a TDIU rating, or was otherwise eligible for DEA benefits prior to August 22, 2018.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a cervical spine disability, to include cervical spondylosis with cervical strain and C8-T1 radiculopathy and as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

2. The criteria for entitlement to an increased 50 percent disability rating for headaches as of January 30, 2019, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.12a, Diagnostic Code (DC) 8100.

3. The criteria for entitlement to a disability rating in excess of 50 percent for adjustment disorder with depressed and anxious mood, prior to March 10, 2021, and in excess of 70 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.125, 4.126(a), 4.130, DC 9440.

4. The criteria for entitlement to a disability rating in excess of 20 percent for left (non-dominant) shoulder, with traumatic osteoarthritis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, DC 5009-5201.

5. The criteria for entitlement to a disability rating in excess of 20 percent for left shoulder dislocation) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, DC 5202.

6. The criteria for entitlement to a disability rating in excess of 20 percent for right shoulder (dominant) degenerative arthritis, prior to May 12, 2021, and in excess of 40 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, DC 5202.

7. The criteria for a compensable disability rating for scars, left shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.114, 4.118, DCs 7801-7805.

8. The criteria for an effective date prior to May 12, 2021, for the award of a separate 10 percent rating for painful scar, left shoulder, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.3, 4.118, DC 7804.

9. The criteria for entitlement to a TDIU rating prior to August 22, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16.

10. The criteria for entitlement to an effective date earlier than August 22, 2018, for basic eligibility for DEA benefits have not been met. 38 U.S.C.
.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.3, 4.118, DC 7804.

9. The criteria for entitlement to a TDIU rating prior to August 22, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16.

10. The criteria for entitlement to an effective date earlier than August 22, 2018, for basic eligibility for DEA benefits have not been met. 38 U.S.C. §§ 3501, 3512; 38 C.F.R. §§ 3.807, 21.3040, 21.3041.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1980 to September 1981.

These matters come to the Board of Veterans' Appeals (Board) on appeal from two (2) May 2021 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The earlier May 2021 rating decision denied service connection for a cervical spine disability and continued the Veteran's 50 percent rating for adjustment disorder with depressed and anxious mood. It followed an April 2021 request for higher level review and opt-in from a March 2021 Supplemental Statement of the Case (SSOC) from the December 2020 Board remand of these issues for further development.

The latter May 2021 rating decision granted service connection for painful scar of the left shoulder at a 10 percent rating, effective May 12, 2021; granted a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) and Dependents' Educational Assistance benefits, both effective August 22, 2018; increased the evaluation of right shoulder (dominant) degenerative arthritis to 40 percent, effective May 12, 2021; denied an earlier effective date and continued the 20 percent rating for left (non-dominant) shoulder, with traumatic osteoarthritis; continued a 0 percent rating for scars, left shoulder; and continued a 20 percent ratting for left shoulder (dislocation) with an earlier effective date of December 20, 2017; and denied an earlier effective date for the evaluation of headaches.

In April 2022, the Veteran sought review by the Board by submitting VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), and requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ). In a direct review docket, the Board may consider only the evidence of record at the time of the agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision here. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to service connection for a cervical spine disability.

The Veteran seeks service connection for a cervical spine disability that he believes was incurred in or otherwise related to service, to include as secondary to his service-connected left shoulder disability. See November 2016 VA 21-526EZ, Fully Developed Claim.

In the May 2021 rating decision, the AOJ found that the Veteran's primary disability of left shoulder with traumatic osteoarthritis is service-connected. The Board is bound by this favorable finding. See 38 C.F.R. § 3.104(c).

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service
 disability of left shoulder with traumatic osteoarthritis is service-connected. The Board is bound by this favorable finding. See 38 C.F.R. § 3.104(c).

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.

As such, the questions in this case are whether the Veteran has a current cervical spine disability that had its onset in service and/or whether it was caused by or otherwise related to a disease or injury in service, to include as secondary to a service-connected disability or disabilities. The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the Veteran's claim for service connection for a cervical spine disability. The reasons are summarized below.

As to a current disability, in March 2017, a VA examiner provided a diagnosis of mild cervical spondylosis with cervical strain and radiculopathy, thus, meeting the first element of a service connection claim.

The Veteran has generally asserted that his cervical spine disability was secondary to his service-connected left shoulder disability but also stated that in 1980, he had a left shoulder dislocation while lifting someone as a medic and had neck pain at the time. He indicated that he was put on light duty while in service and was unable to get out of bed and reported that his neck pain was from his left shoulder injury. See March 2021 VA neck (cervical spine) conditions Disability Benefits Questionnaire (DBQ). However, the objective contemporaneous evidence weighs against the Veteran's claim of an in-service onset of disease or injury, which includes the absence of complaints, treatment, and diagnosis in service treatment records and the denial of such symptoms close to separation in the August 1981 Report of Medical Examination with normal clinical evaluations of head, face, neck and scalp; and spine and other musculoskeletal systems. In the accompanying August 1981 Report of Medical History, the Veteran indicated that he was in "good health;" denied that he ever had or had at the time "swollen or painful joints;" "frequent or painful headaches;" "head injury;" "broken bones;" "arthritis, rheumatism, or bursitis;" "lameness;" but indicated that he had "painful or 'trick' shoulder or elbow." He denied a history of illness or injury other than those reported on his Report of Medical History, and the observing medical examiner noted an issue with the shoulder but there is no notation of any cervical spine or neck issue.

A December 1980 service treatment record reflects that the Veteran presented to the emergency room with pain to the left shoulder after hurting his arm by lifting another individual. The medical professional noted no visible signs of swelling or other injuries other than pain especially upon abduction and flexion of the arm and an assessment of sore muscles and possible sprain around the elbow joint. Service treatment records also include a September 1980 complaint of low back pain following a twisting type injury; an April 1981 left wrist injury after playing basketball; and August 1981 visits for left wrist and bilateral shoulder dislocations. Thus, contrary to the Veteran's report during the March 2021 VA examination, the December 1980 service treatment record, showing he injured his left shoulder lifting someone, does not show that he reported symptoms of neck pain, and there were no documented complaints of neck pain although he reported to sick call on multiple occasions for other musculoskeletal complaints. The Board accords high probative value to these documents as they were completed contemporaneously with service, and the Board finds the Veteran's assertions of neck pain in service over 40 years later are not credible. Moreover, at the March 2017 VA examination, the Veteran reported that he started to have neck pain 15 to 20 years prior, thus, approximately March 1997, or over 15 years after service separation. Accordingly, while the
1 VA examination, the December 1980 service treatment record, showing he injured his left shoulder lifting someone, does not show that he reported symptoms of neck pain, and there were no documented complaints of neck pain although he reported to sick call on multiple occasions for other musculoskeletal complaints. The Board accords high probative value to these documents as they were completed contemporaneously with service, and the Board finds the Veteran's assertions of neck pain in service over 40 years later are not credible. Moreover, at the March 2017 VA examination, the Veteran reported that he started to have neck pain 15 to 20 years prior, thus, approximately March 1997, or over 15 years after service separation. Accordingly, while the Board concedes that the Veteran underwent physical activities during service that involved moving his neck, this does not equate to a disease or injury of the neck/cervical spine in service.

The Board also finds that the evidence persuasively weighs against a nexus between the current cervical spine disability and service, to include as secondary to his service-connected left shoulder disability. There is no competent evidence that arthritis was manifested within one year following service discharge. The first diagnosed of such is in 2017. Even if the Board concedes arthritis as early as 20 years prior to 2017, it still does not establish that arthritis manifested within one year of service discharge. Thus, presumptive service connection based on a chronic disease is not warranted.

The March 2017 VA examiner provided the opinion that the claimed disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected left shoulder dislocation with traumatic arthritis. The examiner explained that examination of the Veteran's neck revealed mild cervical spondylosis with cervical strain and radiculopathy left upper extremity and examination of the Veteran's left shoulder revealed that there is no cause or relationship with the Veteran's mild cervical spondylosis with cervical strain and radiculopathy left upper extremity and his left dislocation with shoulder moderate arthritis and decreased range of motion.

The Board notes that in December 2020, the Board remanded the claim for a VA medical opinion because the examiner did not address whether the Veteran's neck pain was aggravated by his service-connected left shoulder disability. Although the examiner does not separately provide an opinion on aggravation, the March 2017 opinion on "aggravation," is distinguishable from the holding in El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In that case, the U.S. Court of Appeals for Veterans Claims (Court) found that the examiner's opinion that it was "more likely than not that the veteran's alcohol abuse was related to factors other than the veteran's post-traumatic stress disorder" did not rule out the possibility that the veteran's service-connected PTSD aggravated his alcohol abuse to some degree. Id. Here, the examiner addressed aggravation when he indicated that there is no relationship between the Veteran's claimed cervical disability and his service-connected left shoulder disability. Unlike that of the examiner in El-Amin, this examiner ruled out the possibility that the service-connected disability may aggravate to some degree the non-service-connected disability.

In the December 2020 Board decision, the Board also recharacterized the issue, to essentially encompass the service connection claim for C8-T1 radiculopathy of the left upper extremity within the cervical spine claim. The March 2017 VA examiner also provided an opinion as to C8-T1 radiculopathy of the left upper extremity, opining that it was less likely than not proximately due to or the result of the Veteran's service connected left shoulder disability. The examiner provided the rationale that his examination of the Veteran revealed loss of light touch sensation to monofilament C8-T1 nerve root distribution left upper extremity consistent with radiculopathy from the neck. He concluded that there is no cause or relationship with this Veteran's cervical radiculopathy C8-T1 left upper extremity and his left shoulder. Similar to his opinion for the cervical spine, the opinion as to the C8-T1 radiculopathy on "aggravation," is distinguishable from the holding in El-Amin, 26 Vet. App. 136. The examiner indicated that there is no relationship between the Veteran's claimed C8-T1 radiculopathy and his service-connected left shoulder disability which rules out the possibility that the service-connected disability may aggravate to some degree the non-service-connected disability and associated the C8-T1 radiculopathy with his neck disability on appeal.

Following the December 2020 Board remand, the Veteran was also provided a VA examination for the neck in March 2021. The examiner found that the Veteran did not have a diagnosis of a current neck disability. Notably, the
 the C8-T1 radiculopathy on "aggravation," is distinguishable from the holding in El-Amin, 26 Vet. App. 136. The examiner indicated that there is no relationship between the Veteran's claimed C8-T1 radiculopathy and his service-connected left shoulder disability which rules out the possibility that the service-connected disability may aggravate to some degree the non-service-connected disability and associated the C8-T1 radiculopathy with his neck disability on appeal.

Following the December 2020 Board remand, the Veteran was also provided a VA examination for the neck in March 2021. The examiner found that the Veteran did not have a diagnosis of a current neck disability. Notably, the examiner documented that range of motion measurements were invalid for rating purposes given the Veteran's suboptimal effort and that strength testing was abnormal but there was suboptimal effort by the Veteran during the strength testing portion of the examination. The examiner indicated that there was no diagnosis of the cervical spine confirmed and that the Veteran had no pain on palpation of the cervical spine or paracervical musculature and his strength testing was evidenced by suboptimal effort, with remaining findings that could not be explained based on the history or examination. The examiner stated that there was no evidence of neck injury in service or post discharge and a diagnosis could not be established based on her encounter.

The March 2021 VA examiner provided the opinion that the claimed neck disability was less likely than not proximately due to or the result of the Veteran's service-connected left shoulder disability. She explained that she was unable to confirm a current chronic diagnosis of a neck condition with current available records and/or her examination, and a determination of a relationship between the claimed condition and neck pain would be mere speculation. She concluded that no nexus or plausible secondary relationship is established. The examiner also indicated that the medical evidence was not sufficient to support a determination of a baseline level of severity. She explained that the strength examination was complicated by the Veteran's lack of effort. She highlighted a lack of pain on palpation on physical examination and explained that sensory findings can occur for multiple reasons and cannot be completely explained by a cervical spine condition based on her examination, and it would be merely speculative. Regardless of an established baseline, she found that the Veteran's claimed neck disability was not at least as likely as not aggravated beyond its natural progression by the service connected left shoulder disability. She reiterated that there was a lack of current diagnosis based on her examination and review of current records and that a condition in one joint does not cause a problem in another joint unless major injury or nerve damage which has not been established.

Thus, while the examiner was unable to confirm a current diagnosis based on her examination, she explained that it was due to the Veteran's lack of effort during the examination. The Board notes that the duty to assist a claimant is not a one-way street, and the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991). A claimant is responsible for cooperating with VA in the development of his claim. 38 U.S.C. § 5107(a); Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Refusal to participate or to cooperate during a VA examination is akin to a failure to report for a VA examination. Therefore, the Board finds that there was substantial compliance with the Board's remand directives when an examination and medical opinions were provided by a qualified VA examiner to the best of her ability given the suboptimal effort by the Veteran. See Stegall v. West, 11 Vet. App. 268 (1998).

Nonetheless, the rationale provided by the March 2021 examiner is consistent with the opinions from the March 2017 examiner that there is no relationship between the Veteran's claimed cervical spine and C8-T1 radiculopathy disabilities and the service-connected left shoulder disability. Specifically, the March 2021 examiner indicated that the one joint does not cause a problem in another joint unless major injury or nerve damage which has not been established. Thus, the Board finds that the March 2021 examiner's opinions sufficiently addressed both causation and aggravation for the cervical spine disability and C8-T1 radiculopathy and, therefore, along with the March 2017 opinion is probative regarding whether the service-connected disabilities caused or aggravated the claimed cervical spine disability and C8-T1 radiculopathy.

To the extent that the Veteran alleges a nexus through his own lay assertions that his cervical spine disability and C8-T1 radiculopathy are secondary to the service-connected left shoulder disability or the other service-connected disabilities, he is
 2021 examiner indicated that the one joint does not cause a problem in another joint unless major injury or nerve damage which has not been established. Thus, the Board finds that the March 2021 examiner's opinions sufficiently addressed both causation and aggravation for the cervical spine disability and C8-T1 radiculopathy and, therefore, along with the March 2017 opinion is probative regarding whether the service-connected disabilities caused or aggravated the claimed cervical spine disability and C8-T1 radiculopathy.

To the extent that the Veteran alleges a nexus through his own lay assertions that his cervical spine disability and C8-T1 radiculopathy are secondary to the service-connected left shoulder disability or the other service-connected disabilities, he is not competent to offer opinions as to the etiology of cervical spine disability and radiculopathy, as although the Veteran was a medic in service, he is not a medical professional. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent and probative evidence of a nexus between cervical spine disability or C8-T1 radiculopathy and the service-connected left shoulder disability or the other service-connected disabilities to weigh against the negative VA opinions.

Therefore, given the reasons above, the Board finds that the most probative evidence of record are the medical opinions of the March 2017 VA examiner. The VA examination report and medical opinions provide competent and probative evidence that weighs against the Veteran's claims because the VA examiner reviewed the claims file, interviewed the Veteran, performed an appropriate examination, and provided medical opinions supported by well-reasoned rationale. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012).

There is no competent opinion nor evidence proffered by the Veteran in support of a relationship between the post-service cervical spine disability and service. While the Veteran was afforded VA medical examinations for the cervical spine, a medical opinion in connection with the claim on a direct basis was not provided. VA must provide a medical examination and opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has not established evidence of an event, injury, or disease occurred in service or competent medical evidence in support of a relationship between his claimed cervical spine disability and service. Thus, at least one of the criteria is not met, and, as such, a medical opinion as to direct service connection is not required.

Absent competent, credible, and probative evidence of a nexus between the Veteran's cervical spine disability, to include mild cervical spondylosis with cervical strain and C8-T1 radiculopathy of the left upper extremity and service or a service-connected disability, the Board finds that his current disability was not incurred in service, manifested within one year of service discharge, and is not otherwise related to active service, to include as secondary to a service-connected disability. The Veteran has not submitted credible and probative evidence that provides a positive nexus regarding the onset, etiology, or relationship of the cervical spine to military service or as secondary to a service-connected disability or disabilities. The most probative evidence on medical etiology is against his claim. Accordingly, service connection for the cervical spine disability is not warranted. 

For all the reasons laid out above, the Board finds the evidence persuasively weighs against the claim of service connection for cervical spine disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See Lynch v. McDonough, 21 F.4th 776 (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). 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102.

Increased ratings

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule
 connection for cervical spine disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See Lynch v. McDonough, 21 F.4th 776 (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). 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102.

Increased ratings

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability.

Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3.

The Board 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. 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. 

2. Entitlement to disability rating in excess of 30 percent for headaches prior to November 15, 2019.

The Veteran seeks a disability rating for service-connected headaches in excess of 30 percent prior to November 15, 2019, specifically an earlier effective date for the award of an increased 50 percent, which the Veteran believes should be December 20, 2017. See December 2020 VA Form 20-0995.

Under the Appeals Modernization Act (AMA), a veteran may continuously pursue a claim by timely filing a supplemental claim (VA Form 20-0995), a request for higher-level review (VA Form 20-0996), or an appeal to the Board (VA Form 10182) within one year from the date on which the AOJ issues a notice of a decision on a claim (or issue). 38 C.F.R. § 3.2500(a), (c). A claim for an increased rating submitted on a VA Form 21-526EZ is not considered a request for review of a prior decision but rather a new "initial claim" for an increased rating. 38 C.F.R. § 3.1(p)(1) (defines a claim for increased rating as an "initial claim" rather than a "supplemental claim").

Nevertheless, an effective date prior to the date VA received a new initial claim (to include a supplemental claim filed more than one year after a prior decision) may still be granted if the record shows the disability increased in severity on a factually ascertainable date that is within one year prior to receipt of the new initial claim for an increase. 38 C.F.R. § 3.400(o).

In a January 2020 rating decision, the RO granted an increased 50 percent rating for headaches, effective November 15, 2019, based on the date of receipt of a VA Form 20-0995, supplemental claim.

In a previous November 2018 rating decision, the RO continued the 30 disability rating following the Veteran's August 23, 2018, RAMP opt-in election as a supplemental claim. The Veteran's claim was denied in a February 2018 rating decision following his December 20, 2017, initial claim for increase.

The Veteran's migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a noncompensable rating is warranted for less frequent migraine attacks. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring
 2018 rating decision, the RO continued the 30 disability rating following the Veteran's August 23, 2018, RAMP opt-in election as a supplemental claim. The Veteran's claim was denied in a February 2018 rating decision following his December 20, 2017, initial claim for increase.

The Veteran's migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a noncompensable rating is warranted for less frequent migraine attacks. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. Finally, a maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a.

The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App.?245, 252 (2018).

The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness.

Also, the term "productive of severe economic adaptability" has not been clearly defined by regulations. The Court has, however, explained that "productive of" for purposes of DC 8100 can either mean producing, or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraine headaches need not actually produce severe economic inadaptability to warrant a 50 percent rating under DC 8100. Id. at 445-46. Similarly, "economic inadaptability" does not equate to unemployability, as such would undermine the purpose of regulations pertaining to a TDIU rating. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraine headaches must be, at a minimum, capable of producing severe economic inadaptability in order to meet the 50 percent criteria.

The Board finds that after affording the Veteran the benefit of the doubt, an increased 50 percent disability rating for headaches is warranted as of January 30, 2019, but no earlier. The reasons follow.

In a December 2016 statement, the Veteran's partner reported that he had neck pain and headaches that were "so intense that he must once again lay down, close his eyes and turn off the lights and use a cold compress on his forehead and neck."

In October 2017, the Veteran reported that his daily activity was working on the computer and drinking a six pack of Mountain Dew. He explained that when he tried to do more, he was limited by shortness of breath and left shoulder pain and would "sometimes" have a headache. In a December 2017 VA medical record, the Veteran reported that he had headaches and in the past was taking 10 to 12 Excedrin per day. He reported that "sometimes" shoulder pain seemed to trigger a headache with nausea.

At the February 2018 VA examination, the Veteran reported that his headache followed from his left shoulder pain and muscle tightness/tension in the neck and shoulder, which would often trigger a migraine-like headache, which he used Excedrin for pain and required a dark environment for the headache to resolve.

Symptoms of headache pain were described as pulsating or throbbing head pain on both sides of the head in the suboccipital region. He experienced non-headache symptoms associated with headaches of sensitivity to light with a duration of typical head pain of less than one day on both sides of the head in the suboccipital and left trapezius region. The examiner noted characteristic prostrating attacks of migraine / non-migraine headache pain, with a frequency of once every month. However, the examiner found that the Veteran did not have very prostrating and prolonged attacks of migraines / non-migraine pain productive of severe economic inadaptability. The examiner also noted that the Veteran's headache condition had impact on his ability to work with severe headaches that would cause missed work opportunity.

In a July
 on both sides of the head in the suboccipital region. He experienced non-headache symptoms associated with headaches of sensitivity to light with a duration of typical head pain of less than one day on both sides of the head in the suboccipital and left trapezius region. The examiner noted characteristic prostrating attacks of migraine / non-migraine headache pain, with a frequency of once every month. However, the examiner found that the Veteran did not have very prostrating and prolonged attacks of migraines / non-migraine pain productive of severe economic inadaptability. The examiner also noted that the Veteran's headache condition had impact on his ability to work with severe headaches that would cause missed work opportunity.

In a July 2018 VA medical record, the Veteran reported he had to change doctors because his one doctor put down notes that were not accurate, minimizing the amount of pain that he had. He explained that he reported headaches every day and it came out as one headache in the notes and that he used Excedrin to try to deal with the pain and that it was also written as if he abused that medication and was pain pill seeking.

In a December 2018 VA medical record, the Veteran reported that he had a headache which had been there all day and was having great difficulty with the pain. He stated that it was keeping him down for a whole day or more.

January 2019 VA medical records reflect the Veteran report of headaches three to four times a week that came on suddenly with migraine like photophobia that were prostrating, however, no vomiting. The Veteran indicated that he had headaches several times a week.

During the December 2019 VA examination for headaches, the Veteran reported that he had headaches every day, but, several times per month, the headache was severe enough that he would have to lay down with a cool compress on his head and he could not do anything during those headaches. The examiner noted characteristic prostrating attacks of migraine / non-migraine headache pain on average of once a month and prostrating and prolonged attacks of migraine / non-migraine pain productive of severe economic inadaptability. She found that the Veterans headache condition impacted his ability to work when cephalgia was severe as he could not "push through it" and had to lay down in a dark room with cool compress on his forehead. The Veteran reported that over the preceding 30 days, he had to lay down two to three times because of cephalgia.

In a February 2020 statement or "affidavit," the Veteran reported that every day he experienced headache pain that "comes and goes" and at least two to three times a week, he experienced headaches that "completely put [him] down" for at least a couple hours, and often the headaches would last up to six hours but several times per month they will last for days and he was unable to do anything but wait for the pain to go away when he had those headaches.

The evidence shows the severity of the Veteran's headaches had increased at the time of the December 2019 VA examination, compared to the February 2018 VA examination. Specifically, the Veteran now had characteristic prostrating attacks of migraine / non-migraine headache pain that was productive of severe economic inadaptability.

The Board has considered the December 2020 brief from his previous representative which referenced a June 2020 vocational assessment from Sharon Morra and the Veteran's February 2020 "affidavit." The June 2020 vocational assessment includes an opinion that the Veteran's service-connected headaches have at least as likely as not resulted infrequent completely prostrating and prolonged attacks productive of severe economic inadaptability since at least December 2017. While the Veteran had reported daily headaches previously, it was not until January 30, 2019, where he reported headaches three to four times a week that came on suddenly with migraine-like photophobia that were prostrating; symptoms and frequency similar to those reported during the December 2019 VA examination, which the Board finds meets the criteria for a 50 percent rating of migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. "Prolonged" is defined as "to lengthen in time: extend duration: draw out: continue, protract." Johnson, 30 Vet. App. At 253 citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 465 (1966). The Board finds that since January 30, 2019, the symptoms had met the definition of "prolonged" attacks since it was now multiple times, three to four, that his headaches were prostrating and were of an extended duration as he had consistently reported the same afterwards.

Prior to this,
 severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. "Prolonged" is defined as "to lengthen in time: extend duration: draw out: continue, protract." Johnson, 30 Vet. App. At 253 citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 465 (1966). The Board finds that since January 30, 2019, the symptoms had met the definition of "prolonged" attacks since it was now multiple times, three to four, that his headaches were prostrating and were of an extended duration as he had consistently reported the same afterwards.

Prior to this, in October 2017, the Veteran reported that his daily activity was working on the computer and would "sometimes" have a headache and in December 2017, he reported that "sometimes" shoulder pain seemed to trigger a headache with nausea. The Veteran reported headaches every day, including in July 2018 and December 2018 medical records, however, these were not described as "prostrating." The February 2018 VA examiner documented the Veteran's report that left shoulder pain and muscle tension in the neck would often trigger a migraine like headache which required a dark environment for the headache to resolve and noted severe headache would cause missed work opportunity. Even after considering the Veteran's reported symptoms the examiner found that the Veteran had characteristic prostrating attacks of migraine / non-migraine headache pain, with a frequency of once every month, but that he did not have very prostrating and prolonged attacks of migraines / non-migraine pain productive of severe economic inadaptability. The Board finds that the criteria for a 50 percent rating were not shown until January 30, 2019. The 30 percent rating at the time fully encompasses the Veteran's headache symptoms, because although the Veteran reported daily headaches, he only had prostrating attacks once every month, precisely the criteria for a 30 percent rating under DC 8100.

Therefore, a 50 percent rating is warranted as of January 30, 2019, but no earlier, for the Veteran's service-connected headaches. In reaching the determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the persuasive weight of the evidence is against the Veteran's claim for a 50 rating for the service-connected headaches, prior to January 30, 2019, to this extent the benefit of the doubt doctrine is inapplicable, and the claim is denied. See Lynch, 21 F.4th 776; 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.

3. Entitlement to a disability rating in excess of 50 percent for adjustment disorder with depressed and anxious mood prior to March 10, 2021, and in excess of 70 percent thereafter.

The Veteran seeks a higher rating for his service-connected adjustment disorder with depressed and anxious mood.

In an October 2019 rating decision, the RO increased the evaluation for adjustment disorder with depressed and anxious mood to a 50 percent rating, effective August 22, 2018. In a March 2021 rating decision, the RO increased the evaluation for adjustment disorder with depressed and anxious mood to a 70 percent rating, effective March 10, 2021.

The Veteran's adjustment disorder and depressed mood are evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9440. Under the General Rating Formula, a 50 percent rating is warranted for a mental disorder that results in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9440.

A rating of 70 percent is warranted for a mental disorder that results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals, which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like
 and social relationships. 38 C.F.R. § 4.130, DC 9440.

A rating of 70 percent is warranted for a mental disorder that results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals, which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted when the condition results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.

Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443.

The Veteran was afforded a VA examination in October 2018. Then examiner noted a diagnosis of adjustment disorder with depressed and anxious mood which was due to pain and more particularly limited ability to function and inability to work due to service-connected shoulder/clavicle and headaches. The Veteran reported that he lived with his son, who drove him to appointments, and had a girlfriend of 20 years and a dog. He stated that it hurt his shoulder to walk, had no strength in his left hand with burning and had impingement syndrome. A typical day was at home, where he may try to do dishes and care for his dogs. The Veteran reported he had been working as an automotive mechanic for many years and had his own business but then had surgery for bone spurs leading to torn cartilage. When he could not perform the work, he closed the business and sold everything and had been in Florida for two years. He stated he tried to get a job in a parts store, but no one would hire him.

The examiner noted that the Veteran presented to the examination appropriately dressed, clean, and neatly groomed. Attention, concentration, and memory were within normal limits. He denied suicidal and homicidal ideations, hallucinations, and voiced no overt delusional constructs. auditory/visual hallucinations and there was no gross cognitive impairment evident.

The examiner found that the Veteran's psychiatric symptoms at the time included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted other symptoms of mood described as "mad" and reported anxiety of "no control, no nothing." The Veteran stated that he had a bad reaction to Duloxetine, Lyrica and Gabapentin, was on Wellbutrin and his mood swing had improved but felt depressed because he could not do anything anymore and was unable to support himself and his son had to support him. He stated that he did not like to be judged so he did not like to do groups.

A psychiatric review of symptoms documented for depression, he endorsed depressed mood, ruminates, negative thoughts all the time; anxiety with stressed/anxious feeling all the time and ruminated; negative psychosis; and negative mania. The examiner indicated that the Veteran's mental status did not compromise his ability to complete all activities of daily living without assistance such as feeding, grooming, bathing, walking, etc. He also reported that
 to Duloxetine, Lyrica and Gabapentin, was on Wellbutrin and his mood swing had improved but felt depressed because he could not do anything anymore and was unable to support himself and his son had to support him. He stated that he did not like to be judged so he did not like to do groups.

A psychiatric review of symptoms documented for depression, he endorsed depressed mood, ruminates, negative thoughts all the time; anxiety with stressed/anxious feeling all the time and ruminated; negative psychosis; and negative mania. The examiner indicated that the Veteran's mental status did not compromise his ability to complete all activities of daily living without assistance such as feeding, grooming, bathing, walking, etc. He also reported that he had no problems with instrumental activities of daily living such as managing finances, shopping, handling transportation, managing medications, and/or housework and basic home maintenance. The examiner indicated that the Veteran was capable of managing his financial affairs.

When asked which of the following best summarized the Veteran's level of occupational and social impairment with regard to all of the Veteran's psychiatric disorders, the examiner indicated "occupational and social impairment with reduced reliability and productivity," which is the criteria for a 50 percent rating. The examiner made specific remarks that the evidence-based questionnaire protocol was invalid and uninterpretable with overreporting of psychological dysfunction was reflected in an excessive number of infrequent responses.

In an October 2018 VA psychology note, the Veteran stated that his reading comprehension was impaired and when he took the test for Compensation and Pension was told that he was inconsistent but explained that he was confused as to if they were asking about the present or past on test items and did not tell the staff that he had a processing problem. He stated that he did not like to admit to people that he had a problem with attention and processing, which made him feel stupid. The psychologist documented that the Veteran was dressed and groomed casually, cooperative, exhibited fair judgment and insight, attention and concentration was fair, and memory appeared to be intact. She noted that the Veteran was fully oriented and showed no evidence of a thought disorder, reported no perceptual distortions and presented no loose associations or flight of ideas, mood was depressed, affect mood congruent, blunted, and speech was unremarkable; language spontaneous, coherent, and relevant. The Veteran reported no suicidal or homicidal ideation, plan, or intent.

The Veteran was afforded a VA post-traumatic stress disorder (PTSD) examination in March 2021, which the examiner included mental diagnoses of PTSD and adjustment disorder with anxiety and depressed mood and indicated that symptoms of each disorder worsen the other. The Veteran was noted to live in his own home with his girlfriend of 25 years and had a "fair" relationship with her. He has three adult children, and they had an "excellent" relationship with his 35 year old son stayed with him once in a while. The Veteran did not have close friends and was not close with his family of origin, staying to himself. He stopped working in 2013 when he dislocated his arm and spent his time watching TV (20 hours a day).

The Veteran believed that his mental health was worse and tried mental health treatment but was disappointed with their follow-up. He saw a psychiatrist a few times and takes Venlafaxine and had morbid ruminations and feelings of worthlessness, however, denied suicidal ideation and insomnia.

The examiner found that the Veteran's psychiatric symptoms at the time included depressed mood; anxiety; suspiciousness, chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social; difficulty in adapting to stressful circumstances, including work or a work like setting; and suicidal ideation. The examiner described the Veteran as pleasant and casually dressed, with anxious mood and affect consistent with mood. She noted that the Veteran was tearful when discussing traumatic events and his thought processes, orientation, memory, speech and fine motor patterns were within normal limits. While the examiner checked the box for "suicidal ideation" above, she specifically noted in behavioral observations that the Veteran denied current suicidal/homicidal ideation intent or plan and suicidal attempts and indicated that he was not at an elevated acute risk under additional comments regarding suicidal ideation. The Veteran would be reaching out for treatment and would let the provider know about symptoms and had a copy of the VA crisis line and had called for support when needed.

When asked which of the following best summarized the Veteran's level of occupational and social impairment with regard to all of the Veteran's psychiatric disorders, the examiner indicated "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood," which is the criteria for a 70 percent rating.

After reviewing the foregoing, the Board finds that during the period
 the Veteran denied current suicidal/homicidal ideation intent or plan and suicidal attempts and indicated that he was not at an elevated acute risk under additional comments regarding suicidal ideation. The Veteran would be reaching out for treatment and would let the provider know about symptoms and had a copy of the VA crisis line and had called for support when needed.

When asked which of the following best summarized the Veteran's level of occupational and social impairment with regard to all of the Veteran's psychiatric disorders, the examiner indicated "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood," which is the criteria for a 70 percent rating.

After reviewing the foregoing, the Board finds that during the period on appeal, the criteria for a rating in excess of 50 percent for his service connected psychiatric disorder have not been met prior to March 10, 2021. In that regard, for this period, the evidence does not demonstrate symptomatology reflective of occupational and social impairment with deficiencies in most areas (i.e., the criteria for a 70 percent rating). Notably, the October 2018 VA examiner found the Veteran experienced symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work or a work like setting; however, found there were no hallucinations, inappropriate behavior, obsessive/ritualistic behavior, homicidal or suicidal behavior, episodes of violence, inability to maintain minimum personal hygiene, or other symptoms associated with or reflective of a higher 70 percent rating. Additionally, when asked which of the following best summarized the Veteran's level of occupational and social impairment with regard to all of the Veteran's psychiatric disorders, both examiners checked "occupational and social impairment with reduced reliability and productivity," which is the criteria for a 50 percent rating. While the adjudicator makes the determination of what evaluation is warranted for the service-connected psychiatric disorder, the examiner's conclusion that the Veteran's psychiatric disorder was summarized best by the criteria described under the 50 percent evaluation is evidence against a finding that the Veteran's psychiatric disorder causes occupational and social impairment with deficiencies in most areas.

The Veteran maintained relationships with his longtime girlfriend and adult son during this time. July 2018 VA medical records reflect that the Veteran was a mechanic and did well financially but could no longer work and was very upset that he had to live with his son because he cannot earn money himself and although his son was working and had the house to himself, he would spend the day in his room on the computer, however, denied any suicidal or homicidal ideation, plan, or intent. In August 2018, the Veteran reported that following a diagnosis of diabetes, his self-esteem plummeted and he had on and off suicidal ideation. In a subsequent August 2018 VA medical record, the Veteran reported no suicidal or homicidal ideation, plan, or intent.

In a November 2018 statement, the Veteran's girlfriend reported the Veteran previously was a very good mechanic and had a sharp business mind, running his own business with automotive repair and towing service. She stated that because of shoulder and hand pain, he had lost everything and needed his girlfriend and son to support and take care of him, which damaged him mentally after what he had accomplished in the past and that he seemed angry all the time and when his children and grandchildren came to visit would stay in his room because he was ashamed of who he had become. In a January 2019 VA medical record, the Veteran indicated that he was reminded of how far he had fallen from being a proud business owner and was preoccupied with his appearance which kept him from going outside. A June 2019 VA medical record reflects that the Veteran had been avoiding going out to activities with family because his mood was irritable and did not want to take the joy out of the day for them and attributed his irritable mood to chronic pain. He expressed that he did not want to be irritable with others but did not feel good. In a February 2020 statement, the Veteran stated that he did not feel comfortable leaving the house and mostly stayed in his office and ate in his room. He indicated that he did not like to socialize and would stay in his room if people were over and would make excuses not to go to planned family gatherings outside of the house. A February 2020 VA medical record shows that significant financial concern and chronic pain significantly impacted his daily mood and described spending most of his time sitting at home due to his level of pain and his mobility. As shown above, the Veteran had depressed mood and irritation due to no longer being able to continue working and chronic pain and was considerate of his family when he avoided activities with them and it was not being around people that irritated him. The Veteran's ability to maintain relationships, particularly with his family
 the house and mostly stayed in his office and ate in his room. He indicated that he did not like to socialize and would stay in his room if people were over and would make excuses not to go to planned family gatherings outside of the house. A February 2020 VA medical record shows that significant financial concern and chronic pain significantly impacted his daily mood and described spending most of his time sitting at home due to his level of pain and his mobility. As shown above, the Veteran had depressed mood and irritation due to no longer being able to continue working and chronic pain and was considerate of his family when he avoided activities with them and it was not being around people that irritated him. The Veteran's ability to maintain relationships, particularly with his family, is evidence against deficiencies in family relations and the inability to establish and maintain effective relationships.

The Veteran's medical records are unremarkable for risk of self-harm or intent to harm others, with the exception of in August 2018, the Veteran reported that following a diagnosis of diabetes, his self-esteem plummeted and he had on and off suicidal ideation, however, later in August 2018, the Veteran reported no suicidal or homicidal ideation, plan, or intent. Specifically, he also denied any suicidal or homicidal ideation, plan, or intent including in June 2018, July 2018, October 2018, November 2018, August 2018, January 2019, February 2019, April 2019, June 2019, February 2020, November 2020, and February 2021.

The Veteran was deemed capable managing his own financial affairs by both the October 2018 and March 2021 VA examiners. The October 2018 examiner noted that the Veteran presented to the examination clean, neatly groomed, and appropriately dressed and found that the Veteran's mental status/condition did not compromise his ability to complete all activities of daily living without assistance, and the Veteran reported no problems with instrumental activities of daily living. noted that the Veteran's noted that the Veteran had speech that was clear and coherent and provided appropriate responses. Similar to the findings documented by the October 2018 examiner, an October 2018 VA psychiatrist also found the Veteran to be cooperative, exhibited fair judgment and insight, attention and concentration was fair, and memory appeared to be intact. She noted that the Veteran was fully oriented and showed no evidence of a thought disorder, reported no perceptual distortions and presented no loose associations or flight of ideas, mood was depressed, affect mood congruent, blunted, and speech was unremarkable; language spontaneous, coherent, and relevant. The Veteran reported that he had avoided social interaction, however, medical records show that it was because he was ashamed of who he had become since losing his business, not that he was unable to have interactions with others. VA treatment records show that the Veteran regularly seeks medical care for himself for a variety of issues and is able to manage his treatment and necessary medication appropriately. All of which is evidence against deficiencies in occupational impairment.

The Veteran had not shown symptoms more closely approximated to the 70 percent rating until the March 10, 2021, VA examination, in which the examiner documented suicidal ideation as a symptom and indicated that "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and or/mood" best summarized the Veteran's level of impairment. Nonetheless, the examiner indicated that the Veteran was pleasant and casually dressed; with thought processes, orientation, memory, speech and fine motor patterns that were within normal limits and had denied current suicidal/homicidal ideation/intent/plan and suicidal attempts and was not at an elevated acute risk for suicidal ideation. The examiner indicated that there was a worsening of the Veteran's symptoms, however, the Board finds that such worsening is not evident earlier than March 10, 2021, the date of the VA examination and an increased 70 percent rating is not warranted earlier than the date assigned.

The Board has also considered the Veteran's risk of self-harm; the persistent danger of which VA generally considers indicative of a 100 percent disability evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017); 38 C.F.R. § 4.130. The persuasive weight of the evidence, such as the VA examination reports and clinical records, is against a finding of risk of self-harm at any point of the appeal period. The Veteran consistently denied suicidal/ homicidal ideas, intentions or plans.

Therefore, in consideration of the frequency, severity, and duration of the Veteran's symptoms and their effect on the Veteran's overall occupational and social functioning, the Board finds that the Veteran's adjustment disorder with depressed and anxious mood does not manifest in occupational and social impairment with deficiencies in most areas prior to
 indicative of a 100 percent disability evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017); 38 C.F.R. § 4.130. The persuasive weight of the evidence, such as the VA examination reports and clinical records, is against a finding of risk of self-harm at any point of the appeal period. The Veteran consistently denied suicidal/ homicidal ideas, intentions or plans.

Therefore, in consideration of the frequency, severity, and duration of the Veteran's symptoms and their effect on the Veteran's overall occupational and social functioning, the Board finds that the Veteran's adjustment disorder with depressed and anxious mood does not manifest in occupational and social impairment with deficiencies in most areas prior to March 10, 2021, and an earlier award of a 70 percent disability rating is not warranted nor has the Veteran shown total occupational and social impairment to warrant a 100 percent disability rating at any point during the appeal period. The benefit of the doubt doctrine is not for application, and the Veteran's claim for a rating in excess of 50 percent for adjustment disorder with depressed and anxious mood prior to March 10, 2021, and in excess of 70 percent, thereafter, is denied. See Lynch, 21 F.4th 776; 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.

4. Entitlement to a disability rating in excess of 20 percent for left (non-dominant) shoulder, with traumatic osteoarthritis under DC 5201.

5. Entitlement to a disability rating in excess of 20 percent for left shoulder dislocation under DC 5202.

6. Entitlement to a disability rating in excess of 20 percent for right shoulder (dominant) degenerative arthritis, prior to May 12, 2021, and in excess of 40 percent thereafter.

The Veteran seeks increased ratings for his service-connected left shoulder and right shoulder disabilities.

In a January 2020 rating decision, the RO granted service connection for left shoulder (dislocation), based on recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of movement only at shoulder level, at a 20 percent rating, effective November 15, 2019. The RO also continued the 20 percent rating for left (non-dominant) shoulder, with traumatic osteoarthritis. In a December 2020 brief, the Veteran's previous representative asserted that the Veteran's service-connected left shoulder (dislocation) warrants a 20 percent rating for the entire period on appeal, from December 2017.

In the May 2021 rating decision, the RO granted an earlier effective date of the 20 percent rating for left shoulder (dislocation) of December 20, 2017; granted an increased 40 percent rating for right shoulder (dominant) degenerative arthritis, effective May 12, 2021; and continued a 20 percent rating for left (non-dominant) shoulder, with traumatic osteoarthritis.

In a December 2019 rating decision, the RO granted service connection for right shoulder degenerative arthritis at a 20 percent rating, effective August 22, 2019. In a May 2021 rating decision, the RO increased the rating for right shoulder degenerative arthritis from 20 percent to 40 percent, effective May 12, 2021.

Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (DC 5200), limitation of motion of the arm (DC 5201), other impairment of the humerus (DC 5202) or the impairment of the clavicle or scapula, to include dislocation (DC 5203). Since the Veteran is right hand dominant as indicated in the VA examinations provided, the right shoulder is the major joint and left shoulder is the minor joint.

Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I.

Under DC 5200, favorable ankylosis of the scapulohumeral articulation with abduction to 60 degrees, can reach mouth and head warrants a 20 percent rating for the minor joint and 30 percent for the major joint. Intermediate between favorable and unfavorable warrants a 30 percent rating for the minor joint and 40 percent for the major joint. Unfavorable, abduction limited to 25 degrees from side, warrants a maximum 40 percent rating for the minor joint and 50 percent for the major joint. A note to DC 5200 states that the
 internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I.

Under DC 5200, favorable ankylosis of the scapulohumeral articulation with abduction to 60 degrees, can reach mouth and head warrants a 20 percent rating for the minor joint and 30 percent for the major joint. Intermediate between favorable and unfavorable warrants a 30 percent rating for the minor joint and 40 percent for the major joint. Unfavorable, abduction limited to 25 degrees from side, warrants a maximum 40 percent rating for the minor joint and 50 percent for the major joint. A note to DC 5200 states that the scapula and humerus move as one piece. 38 C.F.R. § 4.71a, DC 5200.

Under DC 5201, where arm limitation of motion is limited to 25 degrees from the side, a 40 percent evaluation is assigned for the major side (30 percent for minor side). Limitation of motion midway between the side and shoulder level contemplates a 30 percent evaluation for the major side (20 percent for minor side), and limitation of motion at shoulder level contemplates a 20 percent evaluation for both major and minor sides. 38 C.F.R. § 4.71a, DC 5201.

Under DC 5202, for impairment of the humerus, a 20 percent rating is granted when there is malunion, with moderate deformity in both major and minor arms; a 30 percent rating is warranted when there is marked deformity of the major arm and a 20 percent rating for the minor arm. Also, under DC 5202, for recurrent dislocations of the major arm at the scapulohumeral joint, a 20 percent rating is granted with infrequent episodes and guarding of movement only at shoulder level; a 30 percent rating is granted for the major arm when there are frequent episodes and guarding of all arm movements, and 20 percent ratings for the minor arm. For fibrous union of the major arm a 50 percent rating is assigned for the major arm and 40 percent for the minor arm. A 60 percent rating is warranted for nonunion (false flail joint) of the major arm and 50 percent for the minor arm. An 80 percent rating is warranted for loss of head of (flail shoulder) for the major arm and 70 percent for the minor arm. 38 C.F.R. § 4.71a, DC 5202.

Further, DC 5203 provides that malunion of the clavicle or scapula warrants a 10 percent rating in both the major and minor extremity. Nonunion of the clavicle or scapula without loose movement warrants a 10 percent rating in both the major and minor extremity. Nonunion of the clavicle or scapula with loose movement warrants a 20 percent rating in both the major and minor extremity. Dislocation of the clavicle or scapula warrants a maximum 20 percent rating in both the major and minor extremity. Or rate on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, DC 5203.

Effective February 7, 2021, VA amended DC 5201 and 5202 to clarify that loss of motion includes flexion or abduction under DC 5201. Additionally, specific range of motion measurements were established. For a 20 percent rating, at shoulder level, flexion and/or abduction limited to 90 degrees. For a 30 percent rating (20 percent minor side), midway between side and shoulder level, flexion and/or abduction limited to 45 degrees. For a 40 percent rating (30 percent for minor side), flexion and/or abduction limited to 25 degrees from side.

Under DC 5202, impairment of the humerus, movement only at shoulder level is defined as flexion and/or abduction at 90 degrees.

Upon consideration of the evidence of record, and without considering the ameliorative effects of any medication, the Board finds that the Veteran's left shoulder more nearly approximates the criteria for 20 percent disability ratings under DC 5201 and DC 5202, and the right shoulder nearly approximates the criteria for a 20 percent disability rating under DC 5201 prior to May 12, 2021, and a 40 percent rating thereafter, throughout the appeal period, and no higher ratings are warranted. The reasons follow.

In March 2017, Veteran attended a VA shoulder examination. The examination report documents that the Veteran is right hand dominant. He reported that since the last examination, he had worsened constant pain with radiation to the biceps area with intermittent radiation all the way down to the
eliorative effects of any medication, the Board finds that the Veteran's left shoulder more nearly approximates the criteria for 20 percent disability ratings under DC 5201 and DC 5202, and the right shoulder nearly approximates the criteria for a 20 percent disability rating under DC 5201 prior to May 12, 2021, and a 40 percent rating thereafter, throughout the appeal period, and no higher ratings are warranted. The reasons follow.

In March 2017, Veteran attended a VA shoulder examination. The examination report documents that the Veteran is right hand dominant. He reported that since the last examination, he had worsened constant pain with radiation to the biceps area with intermittent radiation all the way down to the left small finger. The Veteran reported one flare-up in the preceding 12 months and described functional loss or impairment that required him to sleep with his arm on the side and sleeping on bed worsened pain. Initial range of motion for the right shoulder revealed all normal ranges of motion with flexion to 180 degrees, abduction to 180 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees, without pain on examination, evidence of pain with weight bearing, objective evidence of localized tenderness or pain on palpation, nor objective evidence of crepitus.

The left shoulder revealed range of motion measurements of flexion to 120 degrees, abduction to 105 degrees, external rotation to 90 degrees, and internal rotation to 70 degrees. Range of motion itself contributed to a functional loss with the Veteran's inability to raise his left arm above shoulder level. Pain was noted on examination and caused functional loss with flexion, abduction, and internal rotation. There was no evidence of pain with weight bearing or objective evidence of crepitus, but examination revealed moderate tenderness at the acromioclavicular joint.

The Veteran was able to perform repetitive use testing with at least three repetitions of the right shoulder without additional functional loss of range of motion. However, he was unable to perform repetitive use testing for the left shoulder being in significant pain and teary eyed with single range of motion. The Veteran was not examined immediately after repetitive use over time nor during a flare-up as he was in significant pain and teary eyed with single range of motion and the examiner was unable to determine if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or with flare-ups. The examiner noted left shoulder pain with lifting and carrying and the Veteran was unable to raise his arm above shoulder level.

Upon muscle strength testing, the right shoulder had five out of five, normal, forward flexion and abduction strength without a reduction in muscle strength. The left shoulder revealed three out of five, active movement against gravity, forward flexion and abduction strength with reduction in muscle strength, however, no muscle atrophy or ankylosis bilaterally.

The Veteran did not have a clavicle, scapula, acromioclavicular (AC) joint, sternoclavicular joint, or other impairment. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus nor malunion of the humerus. The Veteran did not use any assistive devices. X-ray of the left shoulder performed in November 2016 revealed mild acromioclavicular osteoarthritis. The examiner noted impact of the Veteran's left shoulder disability on his ability to work as moderate pain with lifting and carrying and inability to raise arm above shoulder level.

The Veteran was afforded another VA examination of the shoulders in April 2017. The Veteran reported that he had been experiencing constant four out of ten left shoulder pain that was exacerbated by left shoulder movements. He stated that he was taking NSAIDs with limited results and over the preceding year he developed left arm, fourth and fifth finger sharp pain. The Veteran denied any flare-ups of the shoulder but reported functional impairment of difficulties with overhead activities.

Upon range of motion testing, the Veteran's right shoulder had all normal ranges of motion without pain. The left shoulder revealed flexion and abduction to 160 degrees each and external and internal rotation to 80 degrees each with pain that caused functional loss of difficulties with activities that required movements of the shoulder. There was evidence of pain with weight bearing and objective evidence of crepitus, however, no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions bilaterally without any additional functional loss or range of motion. The examiner noted additional factors that contributed to disability of the left shoulder of "less movement than normal due to ankylosis, adhesions, etc.," however indicated that both shoulders did not exhibit ankylosis. The Veteran had five out of five muscle strength bilaterally without a reduction in
160 degrees each and external and internal rotation to 80 degrees each with pain that caused functional loss of difficulties with activities that required movements of the shoulder. There was evidence of pain with weight bearing and objective evidence of crepitus, however, no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions bilaterally without any additional functional loss or range of motion. The examiner noted additional factors that contributed to disability of the left shoulder of "less movement than normal due to ankylosis, adhesions, etc.," however indicated that both shoulders did not exhibit ankylosis. The Veteran had five out of five muscle strength bilaterally without a reduction in muscle strength or atrophy.

There was no rotator cuff condition or shoulder instability, dislocation or labral pathology suspected for either shoulder. Osteoarthritis was noted in the left shoulder. The examiner indicated that it did not affect the range of motion of the shoulder (glenohumeral) joint nor was there tenderness on palpation of the AC joint. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus, or malunion of the humerus with moderate or marked deformity. The impact on the Veteran's ability to perform occupational tasks was described as mild to moderate effects of decreased range of motion and pain with repetitive overhead movements, pushing, pulling, heavy lifting and carrying, and difficulty reaching. The examiner explained in detail that passive range of motion and weight bearing range of motion tests had potential risk for harm and injury which far outweigh the benefits and therefore not performed on examination.

The Veteran was also afforded a VA peripheral nerves examination in April 2017, which the examiner noted although the Veteran complained of left upper extremity pain, there is no objective evidence to support any diagnosable left brachial plexus or major left upper extremity nerve damage at this time.

In October 2017 VA medical records, the Veteran reported that he had left arm numbness that ran down to his left hand and was unable to reach his arm above his shoulder. A November 2017 x-ray of the left shoulder joint from a private provider revealed advanced glenohumeral osteoarthropathy and joint effusion and moderately advanced active acromioclavicular osteoarthropathy which may contribute to impingement.

The Veteran underwent a VA examination in October 2019, which included diagnoses of right shoulder degenerative arthritis and left shoulder traumatic osteoarthritis. The Veteran reported that his right shoulder was getting as bad as his left and he could not even wash his own hair anymore. He stated that there was marked clicking, popping, and very limited range of motion with increased pain in the right shoulder of a constant six to seven out of ten that went as high as seven to eight out of ten. The Veteran also reported that his left shoulder was worse with a constant eight to nine out of ten that can flare to ten out of ten pain. He stated that he had to support the arm whenever he could, as pressure from letting it hang loose may cause it to pop out and had recurrent dislocations with very limited range of motion.

He reported flare-ups with inactivity, sleeping on or certain or sudden movements would cause pain in both shoulders and dislocation of his left shoulder. He indicated flare-ups would occur two to three times a day and last 30 to 35 minutes and would require him to stop everything and could not do anything but rest. Functional impairment was described by the Veteran as not being able to ride a motorcycle, hunt with a bow or rifle, and the inability to drive due to limited range of motion and pain.

Range of motion measurements for the right shoulder were flexion to 105 degrees, abduction to 95 degrees, external rotation to 40 degrees, and internal rotation to 90 degrees, all with pain. The left shoulder measurements were flexion to 55 degrees, abduction to 60 degrees, external rotation to 45 degrees, and internal rotation to 40 degrees, all with pain. Decrease in range of motion made it difficult to reach above shoulder height, there was evidence of pain with weight bearing, and objective evidence of diffuse pain with the slightest palpation, but no objective evidence of crepitus, bilaterally. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or range of motion bilaterally. The examiner indicated that Veteran's right and left shoulder pain does impact functional ability with repeated use over time, however, the severity of pain is unpredictable and cannot be measured in a quantifiable range of motion but opined that it would have mild and moderate impact for the right and left shoulders, respectively. For flare-ups, the examiner opined that the pain would have a moderate impact and
 range of motion made it difficult to reach above shoulder height, there was evidence of pain with weight bearing, and objective evidence of diffuse pain with the slightest palpation, but no objective evidence of crepitus, bilaterally. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or range of motion bilaterally. The examiner indicated that Veteran's right and left shoulder pain does impact functional ability with repeated use over time, however, the severity of pain is unpredictable and cannot be measured in a quantifiable range of motion but opined that it would have mild and moderate impact for the right and left shoulders, respectively. For flare-ups, the examiner opined that the pain would have a moderate impact and severe impact for the right and left shoulders, respectively.

Upon muscle strength testing, the right shoulder exhibited five out of five forward flexion and abduction strength with no reduction in muscle strength, and the left shoulder exhibited four out of five or active movement against some resistance muscle strength for forward flexion and abduction with a reduction in muscle strength. There was no muscle atrophy or ankylosis. Rotator cuff conditions were suspected in the right shoulder with positive Hawkins' impingement test and in the left shoulder with positive Hawkins' impingement, empty-can, and external rotation/ infraspinatus strength tests. There was a history of mechanical symptoms of the left side and a history of recurrent dislocation of the glenohumeral joints bilaterally with frequent episodes and guarding of movement only at the shoulder level. Moderately active acromioclavicular osteoarthropathy was noted in the left shoulder. The Veteran did not use any assistive devices. Functional impact was noted as the Veteran should avoid job duties that would require him to lift or work above shoulder height in either arm, but the Veteran could perform sedentary job duties such as at a desk answering the phone or on the computer as long as he was allowed to provide support to his left shoulder as needed.

Most recently, in May 2021, the Veteran was afforded another VA shoulder examination. The Veteran reported that in 2013-2015, his left shoulder started "acting up again bad" and that pain was located on the top and in the crease of the arm/shoulder with four to five out of ten aching pain that was relieved with rest and pain pills. He stated that the right shoulder ached all the time and that doctors said it was due to over use. He indicated that it was a three out of ten pain and by the end of it day, it would be seven or eight and that there was a lot of impingement going on, osteoarthritis.

The Veteran reported flare-ups of the left shoulder that occurred two to three times a day, which were moderate and lasted seconds to minutes, precipitated by unknown and alleviated by nothing. Functional impairment described by the Veteran as for the left shoulder he could not wash his hair, take a bath/wash himself, and could not drive because he could not turn the wheel. For the right shoulder, he stated that he could not wash his hair because it was hard to move around, could not drive, and his sleep was interrupted by pain in his shoulders.

Upon range of movement testing, the Veteran's range of motion itself contributed to a functional loss, and he was extremely vocal in his expression of pain in the attempt to perform range of motion for the right shoulder and his left shoulder range of motion was extremely limited either due to pain or unwillingness to perform the task. For the right shoulder, flexion endpoint was 30 degrees, abduction endpoint was 0 degrees, internal rotation endpoint was 30 degrees, and external endpoint was 60 degrees, all with pain. For the left shoulder, flexion endpoint was 100 degrees, abduction endpoint was 90 degrees, internal rotation was 50 degrees, and external rotation to 60 degrees, all with pain. Passive range of motion was the same as active range of motion above bilaterally. The examiner noted that the Veteran was extremely vocal in his expression of pain and level of sensitivity which seemed excessive to palpation pressure. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion after three repetitions.

The examiner determined that there was no muscle atrophy or ankylosis in either shoulder. The Veteran had positive empty can and external rotation/infraspinatus strength tests bilaterally. The examiner noted that the Veteran elicited pain with movement and palpation and functional impact of the Veteran being awakened at night from shoulder pain, constant pain from shoulders, and that he was unable to bathe or wash his hair due to his shoulder conditions. The examiner indicated that it was her opinion that the Veteran's ability to function in an occupational environment are severely limited on several levels: physical, mental and emotional and that
 The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion after three repetitions.

The examiner determined that there was no muscle atrophy or ankylosis in either shoulder. The Veteran had positive empty can and external rotation/infraspinatus strength tests bilaterally. The examiner noted that the Veteran elicited pain with movement and palpation and functional impact of the Veteran being awakened at night from shoulder pain, constant pain from shoulders, and that he was unable to bathe or wash his hair due to his shoulder conditions. The examiner indicated that it was her opinion that the Veteran's ability to function in an occupational environment are severely limited on several levels: physical, mental and emotional and that it is clear that the Veteran had real issues in his bilateral shoulders with the left being worse than the right but she indicated that as an examiner it was very difficult to examine the Veteran's shoulders in consideration of his sensitivity to touch as well as his reluctance or inability to perform the range of motion exercises. She stated the x-rays are in support of his bilateral degenerative arthritis and the old dislocation of his left shoulder.

The Veteran's current 20 percent rating under DC 5202 is assigned for the left (minor extremity) shoulder disability and reflects recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements, which affects his range of motion. This is the highest schedular rating available DC 5202 for recurrent dislocation of the minor extremity. Fibrous union, nonunion (false flail joint), or loss of head of (flail shoulder) have not been shown at any point during the appeal period to warrant a higher rating under 38 C.F.R. § 4.71a, DC 5202. The Veteran has not shown ankylosis in the left shoulder to warrant a rating under 38 C.F.R. § 4.71a, DC 5200.

The Veteran's left shoulder is also rated separately under DC 5009-5201 at a 20 percent rating during the entire period on appeal. A higher rating of 30 percent under DC 5201 requires limitation of motion 25 degrees from the side for the minor extremity, amended in February 2021 to clarify flexion and/or abduction limited to 25 degrees from side. The Veteran has not shown that the left shoulder limitation of motion had met the criteria for a 30 percent rating using either the pre-amended or amended criteria. For example, upon VA examination in March 2017, flexion was limited to 120 degrees and abduction to 105 degrees; upon VA examination in April 2017, flexion and abduction were limited to 160 degrees each; following VA examination in October 2019 flexion was limited to 55 degrees and abduction to 60 degrees; and upon VA examination in May 2021, flexion endpoint was 100 degrees, abduction endpoint was 90 degrees. The Veteran reported an inability to raise his left arm above shoulder level; decreased range of motion with overhead movements; difficulty reaching above shoulder height; and was unable to bathe or wash his hair (which would be above the shoulder), respectively at these examinations, indicating that he was above move up to at least shoulder level which does not reflect a limitation to 25 degrees from the side any point during the appeal period to warrant a higher rating under 38 C.F.R. § 4.71a, DC 5201.

Here, the Veteran is already being compensated for limitation of range of motion of the left shoulder under DC 5202, as this DC compensates for guarding of all arm movement and the October 2019 VA examiner has explicitly indicated this guarding affects the Veteran's range of motion only at shoulder level. VA can only award separate, concurrent evaluations when they address symptoms that are "distinct and separate," so as not to violate the regulatory bar against pyramiding. See 38 C.F.R. § 4.14. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (addressing the holding in Esteban and stating, "We agree with the Veterans Court that two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology."). 

The Veteran is also concurrently in receipt of a 20 percent rating under DC 5201 for limitation of motion when all the symptomatology and impairment caused by the left shoulder disability had already been specifically contemplated by the 20 percent disability rating under DC 5202, to include the symptoms associated with limitation of motion and impairment of function. While under the facts of this case,
4); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (addressing the holding in Esteban and stating, "We agree with the Veterans Court that two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology."). 

The Veteran is also concurrently in receipt of a 20 percent rating under DC 5201 for limitation of motion when all the symptomatology and impairment caused by the left shoulder disability had already been specifically contemplated by the 20 percent disability rating under DC 5202, to include the symptoms associated with limitation of motion and impairment of function. While under the facts of this case, separate ratings under DC 5201 and DC 5202 would compensate twice for the same symptoms, limitation of motion and functional impairment, which would violate the prohibition against pyramiding under 38 C.F.R. § 4.14, the Board will not disturb the assigned ratings.

The Veteran's right shoulder (dominant) degenerative arthritis is rated under DC 5010-5201 at 20 percent disabling prior to May 12, 2021, and 40 percent thereafter, which is the highest available schedular rating. At least limitation of motion midway between the side and shoulder level is required for a higher 30 percent rating for the major side. 38 C.F.R. § 4.71a, DC 5201. Under the amended DC 5201, a 30 percent rating requires limitation midway between side and shoulder level, flexion and/or abduction limited to 45 degrees and for 40 percent rating flexion and/or abduction limited to 25 degrees from side. A 40 percent rating was not warranted until the VA examination in May 2021, which showed flexion endpoint was 30 degrees and abduction endpoint was 0 degrees. Prior to such, the evidence reflects that the right shoulder limitation of motion met the criteria for a 20 percent rating and no higher. Specifically, upon VA examination in October 2019, limitation of the right shoulder was flexion to 105 degrees and abduction to 95 degrees, which made it difficult to reach above shoulder height and in March 2017 and April 2017, the Veteran's right shoulder had all normal ranges of motion. Therefore, an increased 40 percent rating was not shown until May 21, 2021, and no higher than a 20 percent rating is warranted before that.

As discussed above, ankylosis, labral pathology, clavicle or scapula impairment with malunion or nonunion, loss of head of the humerus, an acromioclavicular (AC) joint condition, or a sternoclavicular joint condition were not shown; consequently, rating the right shoulder disability under alternate criteria based on such manifestations and functional impairment is not for consideration for the right shoulder.

The Board has also considered with a higher or separate rating is warranted under DCs 5301-5306. The October 2019 VA shoulder examination reveals testing for a rotator cuff condition was positive, to include the Rotator cuff conditions were suspected in the right shoulder with positive Hawkins' impingement test and in the left shoulder with positive Hawkins' impingement, empty-can, and external rotation/ infraspinatus strength tests. However, the Board finds an additional or separate rating is not warranted. Here, the examiner did not diagnose a rotator cuff condition and there was no muscle atrophy in either shoulder. The rotator cuff tests were positive in the sense that pain was detected during each test. However, the Veteran is already being compensated for shoulder pain under the assigned DCs for the respective shoulders. VA can only award separate, concurrent evaluations when they address symptoms that are "distinct and separate," so as not to violate the regulatory bar against pyramiding. See 38 C.F.R. § 4.14. Esteban, 6 Vet. App. 259; Amberman, 570 F.3d at 1381. All the symptomatology and impairment caused by the left and right shoulder disabilities has been specifically contemplated by the assigned ratings to include the symptoms associated with pain, limitation of motion, and impairment of function. Thus, under the facts of this case, a separate rating under DCs 5301-5306 would compensate twice for the same symptoms, pain, limitation of motion and functional impairment, which would violate the prohibition against pyramiding under 38 C.F.R. § 4.14.

Lastly, the Board acknowledges that the Veteran reported treating his pain with hydrocodone and meloxicam as needed for pain. However, because the above findings are based on procured evidence, including the Veteran's description of his shoulder pain at its worst, such descriptions can be expected to describe the pain that prompts
 right shoulder disabilities has been specifically contemplated by the assigned ratings to include the symptoms associated with pain, limitation of motion, and impairment of function. Thus, under the facts of this case, a separate rating under DCs 5301-5306 would compensate twice for the same symptoms, pain, limitation of motion and functional impairment, which would violate the prohibition against pyramiding under 38 C.F.R. § 4.14.

Lastly, the Board acknowledges that the Veteran reported treating his pain with hydrocodone and meloxicam as needed for pain. However, because the above findings are based on procured evidence, including the Veteran's description of his shoulder pain at its worst, such descriptions can be expected to describe the pain that prompts the Veteran to use his reported medication, not a level of impairment that reflects the beneficial effects of such medication. See Ingram v. Collins, 38 Vet. App. 130 (2025).

In sum, ratings for the service connected left shoulder disability other than the already assigned 20 percent ratings under DC 5201 and DC 5202 is not warranted at any point of the appeal period, and May 12, 2021, is the earliest possible date for the award of an increased 40 percent rating under DC 5202 for the service connected right shoulder disability and the effective date that was assigned by the rating decision and no higher ratings are warranted at any point of the appeal period.

As the evidence persuasively weighs against the claims for increased ratings for the service-connected left shoulder and right shoulder disabilities, the benefit-of-the-doubt doctrine is not for application, and the claims are denied. Lynch, 21 F4th 776; 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.

7. Entitlement to a compensable disability rating for left shoulder scar.

8. Entitlement to a separate disability rating in excess of 10 percent for painful scar, left shoulder, earlier than May 12, 2021.

The Veteran seeks increased ratings for his left shoulder scar currently assigned a noncompensable evaluation pursuant to DC 7802 and a 10 percent evaluation pursuant to DC 7804, to include an earlier effective date of the award of the separate rating. 38 C.F.R. § 4.118.

In a May 2021 rating decision, the RO granted service connection for painful scar of the left shoulder at a 10 percent rating, effective May 12, 2021, and continued the noncompensable, 0 percent rating for left shoulder scar.

DC 7805 provides that scars and other effects of scars are to be evaluated under DCs 7800, 7801, 7802, and 7804, or under another appropriate code if such disabling effects are not considered under DCs 7800, 7801, 7802, or 7804. DC 7800 provides criteria for scars or disfigurement of the head, face, or neck, and is therefore inapplicable to the Veteran's left upper back scar. 38 C.F.R. § 4.118.

DC 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear. Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.) are rated 10 percent. Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent. Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent. Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent. 38 C.F.R. § 4.118. Note (1) specifies that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801 (effective from October 23, 2008).

DC 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802.

DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent
 with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801 (effective from October 23, 2008).

DC 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802.

DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable of painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804.

Under DC 7805, disabling effects of scars not considered in a rating under DCs 7800 to 7804 are evaluated under other appropriate DC(s). 38 C.F.R. § 4.118, DC 7805.

In every instance where the schedule does not provide a 0 percent rating for a DC, a noncompensable or 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31.

Upon VA examination of the shoulders in January 2018, the examiner documented three arthroscopy ports on the left shoulder that measured 1 cm by .01 cm (length by width). A VA examiner in October 2019 documented that the scars measured 3.5 cm in length on the anterior and the middle and posterior scars measured 2 cm by .2 cm. Both examiners indicated that there was not objective evidence that any of the scars were painful, unstable, had a total area equal or greater than 39 square cm (6 square inches), or are located on the head, face, or neck.

In a May 2021 VA scars/disfigurement Disability Benefits Questionnaire (DBQ) the examiner indicated that the Veteran had one painful scar in section 1B, however, noted that the Veteran should have three scars but only one was visible and the scar itself was not painful, but the shoulder and the Veteran was very sensitive to palpation disproportionate to degree of pressure. The examiner documented the visible scar measuring 1.5 cm by 0.5 cm which was tender to palpation.

The Veteran has not proffered competent and probative evidence in support of a finding that the scar was deep and nonlinear involving an area of at least 6 sq. inches (DC 7801); superficial and nonlinear involving an area of 144 sq. inches (DC 7802); or otherwise disabling (DC 7805) during any part of the appeal period.

The Board notes that the Veteran is in receipt of a separate rating under DC 7804 for painful left shoulder scar. The effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. Applying the relevant law to the present case, the earliest possible effective date for the award of the separate 10 percent rating for the service-connected painful left shoulder scar could be May 12, 2021, the date of the VA examination which first showed evidence of a "painful" scar, which the examiner indicated that the scar itself was not painful rather the shoulder. Nonetheless, the examiner only indicated that there was one painful scar which warrants a 10 percent rating. As there is only one painful scar, a 20 percent rating under DC 7804, which requires three or four scars that are unstable or painful is not warranted at any point of the appeal period.

In sum, a compensable rating for service connected left shoulder scar other than under DC 7804 is not warranted at any point of the appeal period, and May 12, 2021, is the earliest possible date for the award of a separate 10 percent rating under DC 7804 for painful left shoulder scar and the effective date that was assigned by the rating decision and no higher rating is warranted any point of the appeal period.

As the evidence persuasively weighs against the claims for increased ratings for the service-connected left shoulder scars, the benefit-of-the-doubt doctrine is not for application, and the claims are
, which requires three or four scars that are unstable or painful is not warranted at any point of the appeal period.

In sum, a compensable rating for service connected left shoulder scar other than under DC 7804 is not warranted at any point of the appeal period, and May 12, 2021, is the earliest possible date for the award of a separate 10 percent rating under DC 7804 for painful left shoulder scar and the effective date that was assigned by the rating decision and no higher rating is warranted any point of the appeal period.

As the evidence persuasively weighs against the claims for increased ratings for the service-connected left shoulder scars, the benefit-of-the-doubt doctrine is not for application, and the claims are denied. Lynch, 21 F4th 776; 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.

9. Entitlement to a TDIU rating prior to August 22, 2018.

The Veteran seeks an earlier effective date of August 22, 2018, for the award of the TDIU rating, as he had been in continuous pursuit of increased rating claims above and specifically requests TDIU from at least December 2017. See April 2022 notice of disagreement.

When the matter of entitlement to TDIU is raised by the record in any claim for an increased rating, such matter becomes part of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) ("a claim to TDIU benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating." (emphasis added)); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) ("We hold that once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider [TDIU]." (emphasis added)).

Total disability will be considered to exist where there is present an impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether a veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system are considered to be one disability. 38 C.F.R. § 4.16(a)(3).

As of December 20, 2017, the Veteran is service connected for headaches with a 30 percent disability rating; left shoulder (dislocation) with a 20 percent disability rating; left (non-dominant) shoulder, with traumatic osteoarthritis with a 20 percent disability rating; painful scar left shoulder with a 10 percent disability rating; and scars of the left shoulder at a noncompensable disability rating. His combined disability rating during this period is 60 percent.

Since the Veteran's disabilities result from one etiology, e.g. secondary to the left shoulder they may be recognized as one disability for the purpose of meeting the percentage requirements for a schedular TDIU. See 38 C.F.R. § 4.16(a). As such, the Veteran meets the criteria under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU since December 20, 2017, based on having one service-connected disability rated at 60 percent.

"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38
 schedular TDIU. See 38 C.F.R. § 4.16(a). As such, the Veteran meets the criteria under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU since December 20, 2017, based on having one service-connected disability rated at 60 percent.

"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. Marginal employment may also be held to exist, on a facts found basis (including employment in a protected environment), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. The Court has defined employment in a protected environment," which is a type of marginal employment, as "employment in a lower-income position that, due to the [V]eteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." Labruzza v. McDonough, 37 Vet. App. 111, 123 (2024).

In determining whether a veteran can secure or follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by any nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

The above discussion relating to the Veteran's increased rating claims for his headaches and left shoulder disabilities is incorporated herein.

In the April 2022 notice of disagreement, the Veteran's representative at the time indicated that the Veteran had last worked as an owner/operator of a mechanic business in 2014 and referenced a June 2020 TDIU Vocational Assessment Report by Sharon Morra. He stated that after a complete review of the claims file and an interview with the Veteran, Ms. Morra opined "it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level, since at least December 2017 to the present as a result of his service-connected left shoulder conditions and headaches." She noted that the Veteran obtained his General Education Development (GED) and attended community college, but did not ultimately obtain a college degree and worked as an automotive mechanic by trade for most of his working years, but even during this time, the Veteran had difficulty performing essential job duties due to his left shoulder condition, and was unemployed from 2007 until 2012, as no one would hire him due to his limitations. He noted that from 2012 to 2014, the Veteran worked as the owner/operator of his business and was responsible for the daily operations, but he was unable to work on the automobiles or drive the tow trucks himself due to his limitations, and his girlfriend assisted him with customer service. 

In a December 2016 statement, the Veteran's partner stated that the Veteran was no longer able to climb a tree, repair the family car, hold a rifle steady to go hunting, climb a tree stand, or have the strength to hold a hammer or crescent wrench and when she went to work, she had to open a bag of potato chips because he was not able to grasp both sides to open it. She stated that the Veteran's neck pain and headaches were so intense that he must lay down, close his eyes, turn off the lights, and use a cold compress on his forehead
 but he was unable to work on the automobiles or drive the tow trucks himself due to his limitations, and his girlfriend assisted him with customer service. 

In a December 2016 statement, the Veteran's partner stated that the Veteran was no longer able to climb a tree, repair the family car, hold a rifle steady to go hunting, climb a tree stand, or have the strength to hold a hammer or crescent wrench and when she went to work, she had to open a bag of potato chips because he was not able to grasp both sides to open it. She stated that the Veteran's neck pain and headaches were so intense that he must lay down, close his eyes, turn off the lights, and use a cold compress on his forehead and neck.

When examined in March 2017 for shoulder conditions, the examiner noted functional impact on his ability to perform any type of occupational tasks as moderate with pain with lifting and carrying and unable to raise arm above shoulder level. Similarly, upon examination in April 2017, the VA examiner described the functional impairment as mild to moderate effects with decreased range of motion, pain with repetitive overhead movements, pushing, pulling, heavy lifting and carrying, and difficulty reaching.

In October 2017, the Veteran reported severe pain in his left shoulder and that his daily activity was working on the computer and drinking a six pack of Mountain Dew daily. He stated that when he tried to do more, he was limited by shortness of breath and left shoulder pain and sometimes he also had headaches. The Veteran's problem list at the time included morbid obesity, diabetes type II, shoulder pain, dyspnea, primary hypertension, history of shoulder surgery, and current heavy tobacco smoker of cigarettes, two packs per day. Later in October 2017, the Veteran described his left shoulder pain as "sharp pain that shoots down my arm and into my hand, and sometimes the pain goes from my shoulder into my neck causing me to have an instant migraine."

In December 2017, the Veteran reported left shoulder pain of six out of ten severity that was radiating to the neck and causing a headache. Subsequently in December 2017, the Veteran described pain in multiple locations, including the left shoulder (primary), neck and also associated headaches, which at times pain would radiate from the shoulder proximal to the neck and cause headaches.

In July 2018, the Veteran indicated that he smoked somewhat out of boredom and spent the day in his room on the computer.

Regarding the Veteran's education, training, skills, and work history, the Veteran has a GED with one year of college as reported in a September 2018 VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran has held several positions in the automotive repair industry as a manager and mechanic and owner/operator of a tow truck and automotive repair business. The Veteran indicated that he assigned tasks to employees and was no longer able to lift/carry chains or steer the truck. He stated that he was also unable to lift spare-tires out of the truck to change for roadside assistance, jump packs were too heavy, and he was unable to lay on the ground to hook-up chains where he had to raise his arms and hold them for an extended period of time. He also indicated that he needed time to rest from headaches and to apply ice to his shoulder.

The Veteran has shown that he was able to read and write proficiently, as he was able to complete the forms and provide statements in support of his claim and had computer skills, reporting that he would be on the computer all day. He demonstrated the ability to handle and manage money, worked with others, and did not have a problem communicating with customers. The Veteran also had supervisory experience as a business owner and manager/mechanic in different automotive repair businesses.

As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experienced pain and reduced mobility caused by his left shoulder disability but has no service-connected lower extremity disabilities. The evidence shows the Veteran's primary limitations relate to difficulty with lifting, carrying, pushing, pulling, and raising the arm above shoulder level. However, the Veteran maintained the ability for independent ambulation and notably during the appeal period the Veteran was able to be on the computer all day. The Veteran's musculoskeletal disabilities have not shown to be so severe as to prevent task completion in the Veteran's normal life or otherwise preclude substantially gainful employment. While there was impairment of the upper extremities, he was able to use the computer and capable of repeated arm and hand movements. Specifically, he smoked two packs of cigarettes and drank a six pack of Mountain Dew per day which indicates he was capable at least holding at a minimum a can of soda and repeatedly moving the arm to at least the level of his mouth with the cigarettes and soda. Moreover, during an October 2018 VA mental disorders examination,
 maintained the ability for independent ambulation and notably during the appeal period the Veteran was able to be on the computer all day. The Veteran's musculoskeletal disabilities have not shown to be so severe as to prevent task completion in the Veteran's normal life or otherwise preclude substantially gainful employment. While there was impairment of the upper extremities, he was able to use the computer and capable of repeated arm and hand movements. Specifically, he smoked two packs of cigarettes and drank a six pack of Mountain Dew per day which indicates he was capable at least holding at a minimum a can of soda and repeatedly moving the arm to at least the level of his mouth with the cigarettes and soda. Moreover, during an October 2018 VA mental disorders examination, the Veteran indicated that a typical day was at home, where he may try to do dishes and care for his dogs.

Prior to August 22, 2018, the Veteran was not in receipt of service connection for a psychiatric disorder. The Veteran's service-connected headaches were triggered by his left shoulder pain as reported by the Veteran and noted by the February 2018 VA examiner, who indicated the headache follows from left shoulder pain and muscle tightness/tension in the neck and shoulder and would often trigger a migraine like headache. The headaches were only noted as prostrating attacks of once every month, but the Veteran did not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. In October 2019, a VA examiner stated that the Veteran should avoid job duties that would require him to lift or work above shoulder height with either arm and could perform sedentary job duties such as at a desk answering the phone or on the computer as long as he was allowed to provide support to his left shoulder as needed. Thus, in minimizing shoulder movement and pain, the headaches would be less frequent and have less impact on employment. Accordingly, the totality of the evidence shows that the Veteran is capable of performing work at least at the sedentary exertional level, so long as he was not required to lift, carry, or push heavy items and was able to work at below shoulder level. 

The Department of Labor's Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e., up to one third of the time), and/or a negligible amount of force frequently (i.e., from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to the DOT's definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The Board finds no prejudice to the Veteran in considering this definition for purposes of deciding the Veteran's claim. Accordingly, the weight of the evidence shows that the Veteran was physically and mentally capable of performing substantially gainful employment.

Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran was capable of work that would result in income at the level of substantially gainful employment prior to August 2018. The Board's findings are made regardless of any marginal earnings or protected work during this period. For example, the evidence is against a finding that the Veteran's service-connected disabilities would preclude him from jobs such as a tow truck dispatcher, which he already has extensive experience in towing. He would answer the phone with a headset or follow requests that came through online requests at his computer for towing and dispatch tow truck drivers to the location. Similarly, the Veteran could also provide customer service for an automotive parts retailer as he has vast knowledgeable in automotive repair. These positions could be performed while seated, possibly at home and on the computer which he was already spending all day at and would require limited movement of the shoulders which would minimize the onset of headaches.

These above-described examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could have performed prior to August 2018. This is evidence against a finding that the Veteran was precluded from all forms of substantially gainful employment due to the service-connected disabilities.

The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU rating prior to August 22, 2018, is denied.

10. Entitlement to an effective date earlier than August 22, 2018, for DEA Benefits.

The Veteran seeks an earlier effective date
 performed prior to August 2018. This is evidence against a finding that the Veteran was precluded from all forms of substantially gainful employment due to the service-connected disabilities.

The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU rating prior to August 22, 2018, is denied.

10. Entitlement to an effective date earlier than August 22, 2018, for DEA Benefits.

The Veteran seeks an earlier effective date for DEA benefits pursuant to 38 U.S.C. Chapter 35. The Veteran was awarded eligibility to DEA in a May 2021 rating decision, effective August 22, 2018, based upon the date of the award of a TDIU.

Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 5113(a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C. § 5113(b)(3).

In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran's discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). A permanent total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Id. The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation, which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7).

Since the effective date for DEA benefits is directly related to a finding that the Veteran's overall disability combined evaluation became 100 percent and permanent in nature, an effective date of August 22, 2018, for Chapter 35 benefits is the earliest possible date, the same date that the Veteran was awarded a TDIU. The Board has found within this decision that no higher evaluations for the Veteran's service-connected disabilities are warranted nor is a TDIU rating warranted earlier than August 22, 2018, thus, August 22, 2018, can be the earliest date DEA benefits are warranted. As such an effective date earlier than August 22, 2018, for DEA benefits is not warranted, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Cheng, 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.