Citation Nr: 1124345 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 07-17 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a bilateral shoulder condition as secondary to the service-connected residuals of a shell fragment wound to the right hand. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2010). The Veteran served on active duty from February 1952 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut which denied entitlement to the benefits sought. An August 2006 decision denied the TDIU claim. The RO's decision of February 2008 denied service connection for a bilateral shoulder condition. In November 2008, the Veteran and his spouse testified during a hearing before a Decision Review Officer (DRO), a transcript of which is on file. In Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the DRO who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO noted the basis of the prior determination and noted the elements of the claims that were lacking to substantiate the claims for benefits. In addition, the DRO sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims before it based on the current record. In a November 2009 decision, the Board denied a claim for a compensable rating for bilateral hearing loss. The remaining matters on appeal were remanded for further evidentiary development, and have since been returned to the Board for appellate disposition. FINDINGS OF FACT 1. The Veteran's bilateral shoulder condition is not proximately due to or the result of his service-connected residuals of a shell fragment wound to the right hand. 2. The Veteran is not precluded from participating in substantially gainful employment as a consequence of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for a bilateral shoulder condition as secondary to residuals of a shell fragment wound to the right hand. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). 2. The criteria are not met for an award of a TDIU. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duty to Notify and Assist the Claimant The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2010), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 CFR 3.159(b)(1). Through VCAA notice correspondence dated from May 2006 through June 2007, the RO informed the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the May 2006 VCAA notice letter addressing a TDIU, and June 2007 notice correspondence on the service connection claim were each sent prior to the issuance of the respective rating decisions on appeal, and thereby comported with the standard for timely notice. The RO/AMC has taken appropriate action to comply with the duty to assist the Veteran through obtaining records of VA outpatient treatment, and arranging for him to undergo several VA Compensation and Pension examinations. In support of his claims, the Veteran has provided several personal statements, and testified during a DRO hearing. He has not requested a Board hearing in connection with this matter. There is no indication of any further relevant evidence or information that has not already been obtained. The record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Background and Analysis Service Connection for Bilateral Shoulder Condition Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), codified at 38 C.F.R. § 3.310(b). The Veteran is claiming entitlement to service connection for a bilateral shoulder disorder, as secondary to his service-connected residuals of shell fragment wounds to the right hand. In November 2008 hearing testimony, he contended that the loss of use of his right hand exacerbated his right and left shoulder problems by requiring extra compensating movements for inactivity of the hand, including when attempting to raise or lift objects on the right side. In August 2007, the Veteran underwent VA Compensation and Pension examination of the hand, fingers and thumb. The claims file was not then available for review. A portion of the exam involved evaluation of the bilateral shoulders. The diagnosis given was of degenerative joint disease of the bilateral shoulders, with decreased range of motion and pain. According to the VA examiner, it was not likely that the bilateral shoulder condition was related to the Veteran's service-connected shrapnel injury to his right hand, but more likely a result of aging. Having reviewed this evidence, the Board in November 2009 sent the case back for another VA examination and opinion, observing that the August 2007 medical opinion addressed only whether the right hand disability was the initial cause of a bilateral shoulder condition, and not also whether the former condition chronically aggravated the latter condition. See 38 C.F.R. § 3.310(b). The Board emphasized that a theory of secondary service connection encompassed whether the manifestation of loss of use of the right hand had chronically aggravated the bilateral shoulder condition over time. In accordance with the Board's remand directive, the Veteran underwent a new examination in February 2010. Following a physical exam, and review of the claims file, the VA examiner offered an opinion as to the relationship between the Veteran's right hand injury in the service and the bilateral shoulder limitation of range of motion. According to the examiner, it was unlikely that the distal hand injury on the right had any association to the Veteran's shoulder impairment. Another orthopedic examination was undergone in September 2010, at which time the diagnosis given was degenerative joint disease of the bilateral shoulders with evidence of impingement. The VA examiner further gave the opinion that the condition diagnosed was not likely related to the service-connected shrapnel wound to the right hand, and not likely aggravated beyond normal progression by his right hand condition. According to the examiner, there was no medical evidence to connect the Veteran's bilateral shoulder condition to his shrapnel injury to his right hand. The examiner also was unable to connect the bilateral shoulder condition to the service without resorting to speculation, particularly in light of the fact that the Veteran was first examined for his shoulder condition in 2007 and was discharged from the service in 1953. The Board upon consideration of all of the foregoing concludes that service connection for a bilateral shoulder condition must be denied. As stated, the averred basis for recovery is upon a theory of secondary service connection, i.e., that a service-connected right hand injury either caused, or chronically aggravated the bilateral shoulder condition. Here, however, there are essentially three separate VA medical opinions that definitively rule out the likelihood of any such etiological relationship between a bilateral shoulder condition, and service-connected disability. The most recent opinion of September 2010 does so on the basis of a physical exam and review of the claims file, and moreover rules out both initial causation and chronic aggravation. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion); Boggs v. West, 11 Vet. App. 334, 340 (1998). Moreover, the latter two opinions offer a reasoned basis for their respective determinations, the rationale being that there was simply no medical evidence present to associate a distal injury to the hand with a bilateral shoulder condition at the far opposite end of the upper extremities. The near complete agreement of three separate VA examiners, who have each conducted comprehensive physical exams, is also a key factor in the Board's determination to assign probative value to the conclusions expressed therein. In addition, there are no contrary medical opinions on file that would otherwise support such a theory of secondary service connection. In summary then, the competent and probative evidence effectively weighs against a secondary medical relationship between the claimed bilateral shoulder condition and service-connected right hand disorder. The evidence substantiates such a conclusion on the grounds of both initial causation, and chronic aggravation of the condition claimed. See 38 C.F.R. § 3.310(b). See also Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran's own assertions have also been afforded appropriate weight however, as he is a layperson, he cannot opine on whether there is an etiological relationship between a bilateral shoulder condition and service-connected disability, as a matter of orthopedic expertise and evaluation not within the purview of lay observation. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For these reasons, the Board is denying the claim for service connection for a bilateral shoulder condition. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). TDIU Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, where the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be ratable at 60 percent or more. Provided instead, there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16 (2010). If the claimant does not meet the minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he or she may still be entitled to the benefit sought where the circumstances of the case present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant a TDIU on an extra-schedular basis. See 38 C.F.R. § 4.16(b) (2010). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. While the procedures for assignment of a total disability rating on an extraschedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extraschedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); see also Floyd, supra. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether the Veteran is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor which takes the claimant's situation outside the norm of such a case, since the VA rating schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration in determining whether a Veteran is unemployable include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16(b); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or the Veteran's age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.341, 4.16, 4.19. In addition, "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the Court has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), citing to VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (December 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). See also Ferraro, 1 Vet. App. at 332 (determining that substantially gainful employment suggests "a living wage"). In April 2003, the Veteran in this case completed and returned VA Form 21-8940 (formal application for a TDIU) indicating that from 1983 to 2002 he had worked in the capacity of a cook on a full-time basis. He further indicated that he now was able to work only part-time since 2002 performing light custodial work for a local government employer. The Veteran listed his highest level of education as having completed the seventh grade. In April 2007, on his VA Form 9 (Substantive Appeal form) the Veteran indicated that he had stopped working due to pain in his hand, attributable to service-connected disability. Thereafter, a July 2007 letter from the Veteran's former employer, a local government agency, states that the Veteran had worked as a part-time custodian and left voluntarily in February 2007. His duties had included emptying garbage cans, washing and waxing floors and vacuuming offices. According to the letter, the Veteran had left employment when he could no longer perform these duties. A VA orthopedic Compensation and Pension examination was completed in February 2010, with an attendant claims file review. The VA examiner expressed an opinion regarding the question of employability. The examiner observed that clearly the Veteran had decreased strength and flexibility in the right hand that was injured during a mortar attack in 1953. However, it was noted, the Veteran had continued to work full time for 50 years as a cook, and another 4 to 5 years as part-time janitor/maintenance person until about 2007. The examiner stated that at age 79 the Veteran was less likely to be able to perform the full functions of his job. However, he still had one good hand on the left and should have been able to have sustained sedentary capacity. The Board finds that based on the competent evidence of record, the requirements for a TDIU have not been met. Initially, the Veteran does meet the preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), given that his service-connected right hand shell fragment wound residuals are evaluated as 70 percent disabling, meaning he has at least one service-connected disability rated at 60 percent. This is in addition to his service-connected tinnitus, rated at 10 percent; right hand scar, rated at 10 percent; and hearing loss, rated noncompensable (0 percent). However, it must be further shown to warrant a TDIU that the claimant is also unemployable by reason of his service-connected disabilities. Specifically, the Veteran must be determined incapable of maintaining and securing gainful employment due to service-connected disability. The evidence of record sufficiently addresses the dispositive issue of employability by answering in the affirmative that there is a retained capacity for gainful employment. For one, up until February 2007 the Veteran was gainfully employed, if only on a part-time basis for 20 hours per week. The remaining question is his occupational capacity since then. To this effect, the February 2010 VA medical examination duly addresses the issue of employability, finding that the Veteran has sustained capacity for employment in a more sedentary work environment, notwithstanding his service-connected right hand injury residuals. In its rationale the opinion given makes note of the fact that the Veteran even after service had already worked for more than 50 years as a cook, and then another 5 years or so as a part-time maintenance person despite any limitations or symptomatology inherent in service-connected orthopedic disability of the right hand. In any event, the opinion points out, the Veteran is still deemed fully capable of working in a sedentary occupational environment. This is including consideration of the fact that there is no attendant symptomatology involving the left upper extremity. The foregoing is the only medical conclusion of record to address the employability question. The Board accepts the conclusion stated therein in light of its basis in examination of the Veteran, and of his occupational and medical history. The Board recognizes that the Veteran also has service-connected disabilities of bilateral hearing loss and tinnitus, but the Veteran has not contended at any point, nor does the medical evidence suggest that these conditions have any appreciable impact upon level of occupational functioning. It warrants mention that hearing loss in particular has consistently been found consistent with a noncompensable disability evaluation, and has not been noted upon VA examination to impede any activities of daily living. Thus, given the Veteran's retained occupational capacity for sedentary employment, the complete criteria for a TDIU are not met. Hence, the Board is denying the Veteran's TDIU claim. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER Service connection for a bilateral shoulder condition as secondary to the service-connected residuals of a shell fragment wound to the right hand is denied. The claim for a TDIU is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs