Case A26040826

L. M. BARNARD · 2026 · Case ID: A26040826

MIXED

Summary

The veteran, who served from October 1992 to March 1997, appeals the denial of an earlier effective date for his 20 percent rating for left shoulder disability and the denial of an increased rating for that condition. He also appeals the denial of Total Disability based on Individual Unemployability (TDIU) from April 1, 2018, to September 3, 2025. The Board denied the earlier effective date for the left shoulder rating, finding the evidence weighed against the claim and that the benefit of the doubt did not apply. The Board also denied an increased rating for the left shoulder, noting that while the veteran experienced pain and functional loss, the evidence did not support a limitation of motion more severe than the 20 percent rating already assigned. However, the Board granted an extraschedular TDIU for the period of April 1, 2018, to September 3, 2025. This decision was based on a private vocational assessment, which found the veteran's service-connected disabilities, including bilateral knee and shoulder conditions, prevented him from securing or following substantially gainful employment. The Board found the private opinion probative, citing its accurate medical history review and clear conclusions linking the veteran's limitations to his past employment requirements.

Rationale

Evidence weighed against claim for earlier effective date.; Benefit of doubt did not apply.; Evidence did not support rating higher than 20 percent for left shoulder limitation of motion.

Special Benefit

TDIU

Docket No.

210519-160625

Full Decision Text

Citation Nr: A26040826
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 210519-160625
DATE: April 30, 2026

ORDER

Entitlement to an effective date before April 1, 2018, for 20 percent rating for left shoulder disability is denied.

Entitlement to a disability rating greater than 20 percent from April 1, 2018, for left shoulder disability is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) from April 1, 2018, to September 3, 2025, is granted.

FINDINGS OF FACT

1. The date of claim for the Veteran's increased rating for left shoulder disability is February 26, 2018, and he has a temporary 100 percent convalescent rating related to left shoulder surgery until March 31, 2018.

2. The Veteran's left shoulder disability is manifested by painful motion limited to two inches below shoulder level of the minor extremity.

3. The Veteran's service-connected disabilities alone prevented him from securing or following a substantially gainful occupation from at least April 1, 2018.

CONCLUSIONS OF LAW

1. The criteria for an effective date before April 1, 2018, for 20 percent rating for left shoulder disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105(a), 3.400(o).

2. The criteria for a rating in excess of 20 percent for left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5201.

3. The criteria for a TDIU have been met as of April 1, 2018. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1992 to March 1997.

The rating decision on appeal was issued in September 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

On his May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on November 26, 2024. Therefore, the Board may only consider the evidence of record at the time of the September 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or a representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

A claim of entitlement to a TDIU has been raised by the Veteran and is part and parcel of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation).

1. Effective Date for Increased Rating for Left Shoulder

The Veteran is seeking an effective date before April 1, 2018, for an increased disability rating of 20 percent for his left shoulder disability.

Unless specifically provided otherwise, the effective date of an evaluation and award of compensation based on an initial claim or a supplemental claim will be the date of receipt of the claim or the date entitlement arose
, 22 Vet. App. 447, 453 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation).

1. Effective Date for Increased Rating for Left Shoulder

The Veteran is seeking an effective date before April 1, 2018, for an increased disability rating of 20 percent for his left shoulder disability.

Under the pre-AMA regulations, which generally apply to rating decisions issued before February 19, 2019, a determination on a claim by the AOJ became final unless a notice of disagreement or new and material evidence was received within one year of the date the AOJ mailed notice of the decision. See 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. If new and material evidence was received within one year, it was considered as having been filed in connection with the prior claim, and decisions issued after the receipt of new and material evidence within one year related back to the date of the prior claim. See 38 C.F.R. § 3.156 (b); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).

A rating decision which constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. See 38 C.F.R. § 3.105(a)(1)(ii).

On February 27, 2018, the Veteran submitted a claim for a temporary total convalescent rating based on left shoulder surgery. A March 2018 rating decision granted a temporary 100 percent rating from February 27, 2018, to March 31, 2018, a reassigned the Veteran's existing 10 percent rating from April 1, 2018.

In September 2020, on its own initiative, the AOJ reviewed the March 2018 rating decision and concluded that application of the law that existed at the time of the March 2018 rating decision required assigning a 20 percent rating. The September 2020 rating decision therefore found that the March 2018 ratings assignment of a 10 percent rating was CUE, and it corrected this error by assigning a 20 percent rating effective April 1, 2018.

Since the September 2020 rating decision on appeal revised the disability rating assigned by the March 2018 rating decision on the basis of CUE, the Board will consider it as if it had been made on the date of the March 2018 rating decision. See 38 C.F.R. § 3.105(a)(1)(ii). The Veteran's claim for increased rating was received on February 27, 2018. The Veteran is already in receipt of a 100 percent convalescent rating from February 27, 2018, to March 31, 2018, which is a greater benefit than a 20 percent schedular rating for that period. There is nothing in the record showing an earlier claim for increased rating for left shoulder disability or showing that the Veteran's left shoulder disability worsened in the year before he filed his claim.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for an effective date before April 1, 2018, for increased rating of 20 percent for his left shoulder disability. As the evidence of record persuasively weighs against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. Dec. 17, 2021).

2. Increased Rating for Left Shoulder

The Veteran is seeking an increased disability rating for his left shoulder disability because he feels the current 20 percent rating fails to adequately recognize and compensate for the severity of his symptoms.

As discussed in the previous section, because the September 2020 rating decision on appeal revised the disability rating assigned by a March 2018 rating decision on the basis of CUE, the Board will consider it as if it had been made on the
38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. Dec. 17, 2021).

2. Increased Rating for Left Shoulder

As discussed in the previous section, because the September 2020 rating decision on appeal revised the disability rating assigned by a March 2018 rating decision on the basis of CUE, the Board will consider it as if it had been made on the date of the March 2018 rating decision. See 38 C.F.R. § 3.105(a)(1)(ii).

The Veteran's left shoulder disability, diagnosed as acromioclavicular joint separation, left shoulder, with subacromial subdeltoid bursitis has been rated under hyphenated diagnostic code 5019-5201. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27.

DC 5019 for bursitis directs the rater to evaluate as degenerative arthritis, based on limitation of motion of the affected part. See 38 C.F.R. § 4.71a, Note to DCs 5013 through 5024.

Under DC 5201 for limitation of motion of the arm, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, DC 5201.

DC 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013).

Effective February 7, 2021, VA amended DC 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint.

Because the Veteran's claim was pending when the amended version of DC 5201 went into effect, the Board may apply whichever version grants the Veteran a greater benefit. However, if the amended version of DC 5201 provides a greater benefit, it may not be assigned before the February 7, 2021, effective date of the amended regulation.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir
incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

The Veteran's medical records and a May 2015 VA examination note that the Veteran is right hand dominant. Therefore, the question before the Board is whether the Veteran's left shoulder is limited to 25 degrees from his side in either flexion or abduction. This is the same under both the pre- and post-amendment versions of DC 5201.

Because the claim that initiated the instant appeal was seeking a temporary convalescent rating, VA did not provide a medical examination. The Veteran submitted private treatment records confirming that he underwent a left shoulder surgery on February 27, 2018. The surgical reports note a diagnosis of left shoulder cervical bursitis pre- and post-surgery and note complaints of painful left shoulder, but do not contain range of motion testing.

At his November 2024 Board hearing the Veteran demonstrated his limited range of motion. Although there is no video recording of this hearing, the presiding Veterans Law Judge described the Veteran's arm as "probably about two inches below [the Veteran's] shoulder" which the Veteran accepted as a fair description. The Veteran also testified that his left shoulder strength had lessened since his surgery, leading to his demonstrably reduced range of motion and a tendency to drop things if he tries to pick up heavy objects.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for a left shoulder disability. The evidence of record shows that the Veteran is right-handed, making his left shoulder the minor extremity. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and weakened movement, worse with repeated use over time and during flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran's left shoulder is weaker and has more limited movement would not result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the side of the major or minor extremity. The only indication of the Veteran's left shoulder range of motion during the period on appeal is his November 2024 demonstration described as being about two inches below shoulder level, which is much closer to 90 degrees from the Veteran's side than it is to 25 degrees from the Veteran's side.

The Board has considered whether any other diagnostic codes related to disabilities of the shoulder would provide for a higher disability rating. However, the record does not show that the Veteran has ankylosis of the scapulohumeral articulation intermediate between favorable and unfavorable, flail shoulder, flail joint, or fibrous union of the humerus. Therefore, the evidence does not reflect that his symptoms would warrant a higher rating under a different diagnostic code for the shoulder and arm. See
range of motion during the period on appeal is his November 2024 demonstration described as being about two inches below shoulder level, which is much closer to 90 degrees from the Veteran's side than it is to 25 degrees from the Veteran's side.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 20 percent for a left shoulder disability. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. TDIU

The Veteran is seeking a TDIU for the period on appeal before September 4, 2025.

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Between April
). Id.

Between April 1, 2018, and September 4, 2025, the Veteran had the following disabilities that are service connected: left shoulder acromioclavicular joint separation with subacromial subdeltoid bursitis (rated 20 percent); right shoulder acromioclavicular joint separation with subacromial subdeltoid bursitis and limitation of motion (rated 10 percent); left knee patellofemoral pain syndrome (rated 10 percent); right knee patellofemoral pain syndrome (rated 10 percent); and tinnitus (rated 10 percent).

Based on the foregoing, the Veteran did not have one disability rated 60 percent or more OR at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more between April 1, 2018, and September 4, 2025. Accordingly, the Board may not consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a).

Pursuant to 38 C.F.R. § 4.16(b), VA's policy is "that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." This regulation provides that "rating boards" should submit to the Director of Compensation Service (Director), for extraschedular consideration, cases in which veterans are "unemployable by reason of service-connected disabilities" but do not meet the schedular standard of 38 C.F.R. § 4.16(a). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court held that the Board could not grant entitlement to extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance without first remanding the issue for referral to the Director. Recently, however, in Witkowski v. Collins, 38 Vet. App. 459 (2025), the Court overruled Bowling and held that "the VA appeals system allows the Board to adjudicate extraschedular TDIU in the first instance.... Without Bowling, it is now free to do so." The Board will therefore consider whether an earlier effective date for TDIU is warranted even during the portion of the appeal period during which the Veteran did not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a).

For the reasons that follow, the Board finds that a TDIU is warranted from April 1, 2018.

The Veteran testified at his November 2024 Board hearing that he completed high school and attended an automotive college (clarified as a vocational school) before entering the military. He testified that he had no further education and that his work experience was in physically demanding positions such as lumber yard worker at a Lowe's store, correctional officer at a prison, and as a home health worker. The Veteran testified that he had to leave his last job as a home health worker because his service-connected physical disabilities prevented him from completing necessary tasks such as lifting clients in and out of wheelchairs and cars and supporting them or restraining them as necessary depending on the situation. He describes his knees as preventing him from getting up from the floor without assistance and making stairs very difficult.

In February 2025, within 90 days of his November 2024 Board hearing, the Veteran submitted a privately completed Vocational Assessment. The private examiner conducted a phone interview of the Veteran and reviewed his relevant medical history. Although the private examiner's report notes an employment history limited to the Veteran's position as a corrections officer, it includes an accurate review of his medical history, and its conclusions are based on relevant considerations that apply equally well to the Veteran's other past jobs. The Board finds that the private examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295
In February 2025, within 90 days of his November 2024 Board hearing, the Veteran submitted a privately completed Vocational Assessment. The private examiner conducted a phone interview of the Veteran and reviewed his relevant medical history. Although the private examiner's report notes an employment history limited to the Veteran's position as a corrections officer, it includes an accurate review of his medical history, and its conclusions are based on relevant considerations that apply equally well to the Veteran's other past jobs. The Board finds that the private examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The private examiner explained that basic requirements of competitive employment at any exertional level include: the ability to sustain focus for at least 2 hours at a time throughout a workday; remaining at an assigned workstation without unscheduled breaks and leave; maintaining attendance on a regular schedule with no more than one day per month of unscheduled leave; consistently producing a certain minimal amount of work. The examiner opined that since at least May 2015, the Veteran's service-connected disabilities prevented him from satisfying most, if not all, of these basic requirements. In support of this opinion, the examiner cited a set of VA examinations completed in May 2015. They noted that even in 2015, the Veteran's knees would prevent him from sitting or standing for extended periods during a flare-up, that he couldn't lift anything with his left arm during a flare-up, and that pain from his knees and shoulders distracted him during work hours and when driving. Based on the 2015 examinations and the Veteran's consistent report during his telephone interview, the examiner concluded that the Veteran's service-connected disabilities would prevent his staying at a workstation without unscheduled breaks and that he would be unable to maintain appropriate concentration for two hour periods, as well as preventing him from completing actions necessary for the type of work in which he had experience.

Given the foregoing, the Board finds that service-connected disabilities precluded the Veteran from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history from April 1, 2018, to September 3, 2025. The Veteran's only post-high school education was in automotive work, a field that requires significant physical exertion. His only work experience is also in fields that required significant physical exertion. The evidence discussed above weighs persuasively in favor of finding that the Veteran's service-connected disabilities of the bilateral knees and bilateral shoulders prevented him from performing the level of physical exertion required for this type of employment. Pain and limitations from his service-connected disabilities would also likely render acquiring skills necessary for a sedentary position impractical. Accordingly, an extraschedular TDIU is warranted from April 1, 2018, to September 3, 2025.

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Zimmerman, Micah

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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