Citation Nr: 0812536 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-10 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for a disability of the right shoulder, to include rotator cuff repair, degenerative joint disease, and calcific tendonitis, for the period of March 28, 2000, to October 2, 2001. 2. Entitlement to a disability rating in excess of 40 percent for a disability of the right shoulder, to include rotator cuff repair, degenerative joint disease, and calcific tendonitis, for the period of October 3, 2001, to the present. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active honorable service in the United States Army from February 1944 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2001 and July 2004 rating decisions issued by the above Department of Veterans Affairs (VA) Regional Office (RO). A subsequent June 2002 rating decision established a 30 percent rating for the right shoulder effective from March 28, 2000, to October 2, 2001, and a 40 percent rating from October 3, 2001. The case was remanded by the Board in April 2007 so that a videoconference hearing could be scheduled, and so that a statement of the case (SOC) could be issued regarding a claim for an increased rating for hearing loss of the right ear, as to which it appeared that a notice of disagreement (NOD) had been filed. In attempting to effectuate the remand order, the RO noted that no NOD had been filed regarding that claim. A review of the record confirms this, and the Board notes that the veteran indicated at his videoconference hearing before the undersigned that he does wish to express disagreement regarding the claim. The time period in which to file a timely NOD has expired, and the veteran is encouraged to file a new claim for an increase should he feel his disability has grown in severity. The veteran also indicated at his hearing that he was waiting for an SOC to be issued regarding a claim for special monthly compensation based on loss of use of the right hand. The record reflects that an SOC as to that issue was issued in February 2004, and no subsequent substantive appeal was filed, rendering the RO's decision final. Should the veteran desire to pursue that claim, he is encouraged to file a claim to reopen. As noted, this matter was remanded by the Board in April 2007. The purposes of that remand have been met, and no further development is required. The veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in March 2008; a transcript is in the claims file. FINDINGS OF FACT 1. For the period of March 28, 2000, to October 2, 2001, the veteran did not demonstrate a limitation of motion in the right shoulder to less than 25 degrees; radiographic reports confirm calcific tendonitis, and pain with limitation of motion is the chief manifestation for this period; no ankylosis or malunion/nonunion is present. 2. From October 3, 2001, to the present, the veteran's right shoulder flexion is limited to below 25 degrees and he is in receipt of the maximum schedular rating for his disorder; no ankylosis or nonunion/malunion is present, and the disability picture is not so exceptional as to fall outside of the norm. 3. The veteran has presented evidence which was not originally considered by agency decision-makers prior to the final 1982 Board decision, but this evidence is either cumulative or redundant and does not bear substantially or directly on the issue of entitlement to service connection for a low back disability. 4. The veteran is severely limited in daily activities due to a combination of service-connected disabilities and non- service connected Parkinson's disease; while there is evidence of impairment in daily activities, to include complaints of needing assistance in cleaning, dressing, etc., due to the right shoulder disability, and it is clear that the veteran could not work as a furniture builder, his level of education and experience would allow him to work in a sedentary environment, which would not be significantly interfered with by the service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent for the period of March 28, 2000, to October 2, 2001 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.2, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2007). 2. The criteria for a disability evaluation in excess of 40 percent for the period of October 3, 2001, to the present have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.2, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2007). 3. New and material evidence has not been received to reopen a claim for entitlement to service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2001). 4. The criteria for a total disability evaluation based on individual unemployability due to service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The enactment of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and redefined the obligations of VA with respect to the duty to assist the veteran with a claim. In the instant case, the Board finds that VA fulfilled its duties to the veteran under the VCAA. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Sanders v. Nicholson, 487 F.3d 881, 886 (Fed. Cir. 2007), petition for cert. filed (U.S. March 21, 2008) (No. 07-1209); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) mandate notification of all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. This notice must also inform the veteran on how VA determines that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Id. Further, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court found that, at a minimum, adequate VCAA notice in a claim for increased rating requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The Board concludes that the RO did not adequately apprise the veteran of all the information and evidence needed to substantiate the claims prior to the initial adjudication of his claims, however, the veteran did receive information as to what was required in order to receive a higher evaluation for his shoulder disability and to reopen a previously denied claim for service connection in post-decisional documents. Also, a February 2004 letter apprised the veteran of what was necessary to substantiate a claim for a TDIU, with subsequently issued SOCs re-adjudicating all claims, curing any defect as to information which was not provided prior to initial unfavorable actions. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Furthermore, post-decisional documents set forth the criteria used in establishing a higher disability evaluation for a shoulder disability, and what was necessary to reopen a previously denied claim (see July 2001 rating decision followed by issuance/re- adjudication in the SOC), and re-adjudication after such notice fully cured any presumed prejudice. See Prickett, supra; Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA letters of record do not contain the level of specificity set forth in Vazquez-Flores. However, this decision denies entitlement to the benefits sought on appeal, and the veteran was subsequently presented this information in an SOC, which re-adjudicated the contested claims. See Prickett, supra (issuance of fully compliant VCAA notification followed by re-adjudication of the claim, such as in an SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). Moreover, the presumed error raised by such defect is rebutted because of evidence of actual knowledge on the part of the veteran and his representative, and other documentation in the claims file reflecting such notification shows that that a reasonable person could be expected to understand what was needed to substantiate the claims for an increase, or to reopen a previously denied claim, and for entitlement to a TDIU. See Sanders, Kent, supra. That is, the veteran and his representative have shown by the nature of the argument presented that they are aware of what information and evidence is needed to support the claims, and it has not been contended otherwise. Information was provided to how disability rating or effective date is established should the claims be granted (Dingess requirements). Any prejudice raised by the timing of such notice is rebutted, as the decision herein represents a denial of the benefits sought on appeal, mooting the need for further notice. Dingess, supra. There is nothing alleged or present in the record which would affect the essential fairness of the adjudication. See Sanders, supra (the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication.). Regarding VA's duty to assist the veteran in obtaining evidence needed to substantiate his claims, the Board finds that all necessary assistance has been provided in this case. The evidence includes service medical records (SMRs) and post-service pertinent medical records, including VA examination reports. There is no indication of any additional relevant evidence that has not been obtained. The Board notes that the veteran was provided thorough VA examinations that are adequate for rating purposes. See 38 C.F.R. §§ 3.326, 3.327. The veteran was scheduled for an examination to evaluate if his service-connected disabilities prevented him form any type of employment; however, he failed to report to this examination as requested. No good cause has been shown, and there is no duty to schedule another examination. Applicable Legal Criteria - Increased Ratings/General Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. For claims for increased rating wich do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the veteran the reasons and bases utilized in the Government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. While a layperson is permitted to provide observations, lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." Applicable Legal Criteria - New and Material Evidence In general, decisions of the RO or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Kightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). According to regulations in effect for claims filed prior to August 29, 2001 (as in this case), new and material evidence is defined as evidence not previously submitted to agency decision-makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (2001). Applicable Legal Criteria - Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. With a chronic disease shown as such in service, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. Id. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, supra. However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Alternatively, a nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Applicable Legal Criteria - TDIU A total rating based on unemployability due to service- connected disabilities may be granted if the service- connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra- schedular consideration. 38 C.F.R. § 4.16(b). Analysis - Increased Rating, Right Shoulder The veteran initially filed his claim for an increase in March 2000, contending that the then-assigned 20 percent disability evaluation did not fully account for the severity of his service-connected right (major) shoulder disability. The initial claim for an increase was denied. Subsequently, a decision review officer (DRO), upon reviewing the medical evidence of record, assigned a 30 percent rating effective from the date of filing of the claim in March 2000, and also assigned a 40 percent rating from October 3, 2001, the date on which medical evidence documented a worsening of the disability. The veteran contends that he is entitled to higher evaluations for both the period of March 28, 2000, to October 2, 2001, and from October 3, 2001, to the present. These are distinct claims involving a "staged" rating, but they involve the same anatomical structures and utilize the same legal criteria, so they will be discussed together for the sake of efficiency. A. March 28, 2000, to October 2, 2001 During the period of March 28, 2000, to October 2, 2001, the veteran was in receipt of a 30 percent evaluation for his right shoulder. He has not shown ankylosis, and nonunion or malunion of the humerus or scapula is not present, making a rating under Diagnostic Codes (DCs) 5200, 5202, and 5203 inappropriate. See 38 C.F.R. § 4.71a. Indeed, the veteran's diagnosed rotator cuff tear with arthritis chiefly manifests itself with pain and limitation of motion in the right shoulder, and thus a rating under DC 5201 is most appropriate. As discussed in greater detail below, the evidence does support a finding that there is significant limitation of motion at the right shoulder, which is compensable under joint-specific guidelines. Thus, discussion of the criteria specific to arthritis is not necessary in rating the disability on appeal. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. On January 2001 VA orthopedic examination, the veteran complained of daily pain in the right shoulder, and he denied any swelling or crepitation in the joint. There was a well- healed surgical scar on the right shoulder, and the joint was tender to palpation. The clavicle was intact, and the range of motion was: 70 degrees on forward flexion and abduction, and 40 degrees internal and external rotation. There was no additional loss of motion, no fatigue, and no incoordination due to flare-ups of pain; however, the symptoms were chronic and present on a daily basis. Private clinical reports indicate calcific tendonitis present in December 1999, with continual complaints of pain and loss of motion. In October 2001, the veteran had a clinical assessment of his condition, and a significant worsening of the disability was noted. Regarding the period of March 28, 2000, to October 2, 2001, however, there does not appear to be any indication that the criteria for a higher evaluation had been met. Specifically, Diagnostic Code 5201 (as pertains to the major extremity), states that a 30 percent evaluation will be granted if there is limitation of motion to midway between the side and shoulder level; a 40 percent evaluation is granted if the arm is limited to 25 degrees from the side. The objective medical evidence from the time period under consideration does not show that the veteran was ever limited to 25 degrees until after October 2, 2001. Thus, the schedular requirements for a higher evaluation are not met, and the 30 percent evaluation between March 28, 2000, and October 2, 2001 must be continued. Id. Furthermore, while the veteran asserts that he was unable to work as a custom furniture maker beginning in 2000, as he could not raise his arms to carry heavy wood, there does not seem to be any indication that he would have been affected in his ability to work as a trained aerospace engineer, or that he required frequent hospitalizations. Thus, there is nothing to take this disability picture outside of the norm, and a referral to the Director of VA's Compensation and Pension Service for extraschedular consideration is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). B. October 3, 2001, to the Present In October 2001, the veteran had a clinical assessment of his shoulder which (as briefly mentioned above) documented a substantial worsening of his right shoulder condition. Specifically, shoulder flexion was noted to be 22 degrees, which is more severe than the 25 degrees necessary to achieve the 40 percent rating. See 38 C.F.R. § 4.71a, DC 5201. The RO noted this significant increase in severity, and awarded the 40 percent rating effective from the date on which the disability worsened. The 40 percent rating is the maximum schedular rating for loss of motion of the major shoulder, and thus, the veteran cannot gain a higher rating unless he is evaluated under extraschedular criteria. He has undergone additional VA examinations since 2001; however, as with the earlier time period on appeal, there is no competent evidence demonstrating a disability so unique as to take the disability picture out of the norm. Thus, regardless of the findings of more recent VA examinations (which do show an inability to work as a furniture builder), the Board finds extraschedular consideration to be inappropriate. See Bagwell, supra. The Board is also aware of its duty to consider addition limitations such as weakness, fatigue, pain on use, etc., when assessing a disability rating. As pain and loss of motion are the chief manifestations of the disorder, and have been duly noted in VA examination reports, the Board is of the opinion that all such factors have been considered in the award of the separate 30 and 40 percent evaluations. See DeLuca, supra. In summary, there is no evidence which would allow for higher ratings, and the claims for separate increases for the time periods under review must be denied. Analysis - New and Material Evidence, Low Back The veteran contends that his service in the United States Army during the Second World War caused a current low back disability. He was denied service connection in a November 1976 rating decision, and appealed. The Board, in a December 1982 decision, confirmed the RO's denial on the basis that there was no evidence of an onset of a back disability until several decades after his military service separation. That decision was final on the record at the time. The veteran submitted his current request to reopen prior to the regulatory revision of August 2001 regarding what constitutes new and material evidence. In order for the veteran to be successful in the reopening of his claim for service connection for a back disability, he must submit evidence that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156 (2001). There was no dispute that the veteran had a back disability at the time of the previous denial, therefore he would need to show evidence which, at least potentially, supports the onset of a back disorder in service (or in the case of arthritis, within one year after discharge). Upon review of the record, there are noted treatments for low back problems dating from 1984 through 2000. A private chiropractor attributed the veteran's back disability to military service in a June 1984 entry. While on the surface such a contention would seem to warrant reopening, the Board notes that there is no rationale associated with this opinion, and it appears to be totally based on subjective history provided by the veteran. Subjective history is not, in itself, non- probative; however, in order for the history to have probative value, it must be substantiated by the evidence of record. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). The subjective history the veteran reported to his chiropractor regarding in-service onset does not bear substantially on the matter at hand, as such contentions were forwarded and considered prior to the Board's 1982 denial. Furthermore, the record does not indicate that the veteran served in combat, and thus any contentions regarding in- service treatment must be verified by the evidentiary record. See 38 U.S.C.A. § 1154. Upon review, the record has not been supplemented with any evidence which would serve to show an onset of a back disability in service or within the first post-service year. Thus, while the records of more recent treatment are new, they are not material, in that they redundantly put forth the facts of a current back disability and unsubstantiated claims of an in-service onset. Thus, the request to reopen must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve any reasonable doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the veteran's claim. 38 U.S.C.A. § 5107(b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis - TDIU The veteran further contends that the totality of his service-connected disabilities, particularly his service- connected right arm disability, have made him unable to secure gainful employment, and that as a result he should be awarded a total disability evaluation for compensation purposes. The Board notes that service connection in effect for the right shoulder disability, at a 40 percent rating; a left shoulder disability at a 30 percent rating; tinnitus at a 10 percent rating, and hearing loss of the right ear at a noncompensable (zero percent) rating. The veteran's combined disability evaluation is 70 percent, effective from March 2005. In light of this, the Board acknowledges that the veteran meets the basic schedular requirement for level of disability to be considered for a TDIU, pursuant to 38 C.F.R. § 4.16. Thus, at issue in this case is whether the veteran is able to maintain any type of gainful employment, or alternatively, whether his service-connected disabilities preclude him from any type of gainful employment. Upon review, the veteran has indicated that he holds a four- year baccalaureate degree, and that he worked as an aerospace engineer for the Boeing Aircraft Corporation for many years, until he was forced to take early retirement due to budgetary cutbacks in 1992. From 1992 to approximately 2000, he ran a small furniture business from his home, making and distributing fine pieces of wooden furniture among several States. He says that in 2000, his right arm disability became so severe that he was unable to continue in the manufacturing of furniture. Specifically, he states that it was difficult for him to carry the heavy wood required to assemble the furniture, so it was necessary for him to cease production. In support of this, the Board notes a March 2004 VA orthopedic examination in which a physician assistant stated that the veteran's service-connected right arm disability precluded him from employment as a furniture maker, and that it was unlikely he would return to that type of employment. The Board has no reason to dispute this contention, and it is clear by competent medical evidence that the veteran's service-connected disability in the right arm did indeed preclude him from working as a furniture builder. We must also note that the veteran has advised that he suffers from the chronic neurological condition of Parkinson's disease, and he believes that disability condition substantially worsened (e.g., producing the need to use a motorized scooter) in 2006, which has significantly limited his ability to work in any capacity. The Board does not dispute that assertion. Parkinson's, however, is a non- service-connected disorder, and cannot be considered in determining the veteran's employability for VA compensation purposes. The veteran's contention is that he was entitled to a TDIU rating from 2000, when his shoulder disability prevented him from engaging in the furniture-making business, until 2006, when he acknowledges he became unemployable due to Parkinson's. With regard to only the service-connected disabilities, to include the shoulder condition, there is no competent evidence in the evidentiary record to suggest that the veteran could not, due to those conditions alone, pursue employment in an occupation other than building custom furniture., such as in a sedentary (e.g., office-type) environment or in a position not requiring the moving of heavy objects. Indeed, given the veteran's high level of education and experience in aviation engineering, it would appear that he would be capable of obtaining gainful employment in any capacity which would not require significant physical exertion, if the service-connected conditions were the only impediment to working. In conclusion, therefore, the veteran was not from 2000 to 2006, and is not now unemployable based solely upon his service-connected disabilities, and his appeal must be denied. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board greatly appreciates the veteran's forthright and sincere testimony at his hearing before the undersigned, as well as the forceful advocacy of his representative in this matter. ORDER Entitlement to a disability rating in excess of 30 percent for a disability of the right shoulder, to include rotator cuff repair, degenerative joint disease, and calcific tendonitis, for the period of March 28, 2000, to October 2, 2001, is denied. Entitlement to a disability rating in excess of 40 percent for a disability of the right shoulder, to include rotator cuff repair, degenerative joint disease, and calcific tendonitis, for the period of October 3, 2001, to the present, is denied. New and material evidence has not been received to reopen a claim of entitlement to service connection for a low back disability; the claim to reopen is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU) is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs