Citation Nr: 1127768 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 06-34 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating in excess of 40 percent for adhesive capsulitis of the left shoulder. 2. Entitlement to a total disability rating due to individual employability resulting from service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his spouse and daughter ATTORNEY FOR THE BOARD A. Robben, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1942 to June 1943. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which, in pertinent part, granted an increased rating of 40 percent for adhesive capsulitis of the left shoulder, effective May 25, 2006. The Veteran, his wife and his daughter provided testimony before the undersigned at a hearing at the RO in April 2010. A transcript is of record. The issue of entitlement to service connection for a stomach disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The claim was remanded by the Board for additional development in June 2010 and February 2011. 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). The issue of entitlement to an increased rating for adhesive capsulitis of the left shoulder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Analysis A TDIU claim may be granted where the schedular rating is less than total and the service connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. Van Meter v. Brown, 4 Vet. App. 477, 479 (1993); 38 C.F.R. §§ 3.340, 3.341, 4.15, 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). The central inquiry is, "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 41-50 is assigned where there are, "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran is service connected for anxiety disorder, evaluated as 50 percent disabling and adhesive capsulitis of the left shoulder, evaluated as 40 percent disabling. The combined schedular evaluation is 70 percent. The Veteran thus meets the percentage criteria laid out in 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. The Veteran's VA medical records and written statements indicate that he has reported an inability to maintain employment due to his left shoulder disability. In a June 1998 letter he stated that he had lost many jobs because he was not able to use his hands as required in his job as a furrier due to his shoulder disability. He reported during a November 2002 VA examination that he was a semi-retired furrier and that he was unable to obtain employment due to severe left shoulder pain. March and August 2006 psychiatric examination reports reveal that he reported that he was unable to find work in his trade as a furrier due to his left shoulder pain. During an October 2010 VA examination, the Veteran reported a more than 20 year career as a furrier following discharge from the military. When his company went out of business, he went to work for at his brother's restaurant for about a year before retiring. While the examiner did not provide the requested opinion regarding employability, the examination revealed that his left shoulder function was severely limited due to pain as well as muscle weakness and limited range of motion. He required assistance with activities of daily living and any activity that required use of the upper extremity. In a March 2011 addendum to the examination report, an examiner opined that the Veteran had loss of use of the left upper extremity. Furthermore, the Veteran's GAF scores reported to be 48 on a mental status examination during VA treatment in 2009. A GAF score between 41 and 50 is indicative of serious impairment in social and occupational functioning, including the inability to obtain and maintain employment. The record demonstrates that the Veteran's entire work history, both as a furrier and in a restaurant, has involved work that would require the use of the upper extremities. The Veteran has reported that even before the recent increase in the rating for the left shoulder disability, that condition caused him difficulty in keeping up with the demands of his job. Taken together, the evidence supports a conclusion that the Veteran's service-connected disabilities preclude gainful employment for which he would otherwise be qualified. Accordingly, entitlement to TDIU is granted. ORDER TDIU is granted. REMAND In the February 2011 remand, the Board sought clarification from the examiner who conducted an October 2010 VA examination. Specifically, the Board instructed that the examiner should report whether there was nonunion of the left humerus (false flail joint) or loss of the head of the left humerus (flail shoulder) related to the service connected adhesive capsulitis of the left shoulder. This opinion was needed to determine whether the Veteran met rating criteria that would provide a rating in excess of 40 percent for the shoulder disability. 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2010). The examiner was also asked to opine as to whether it was at least as likely as not (50 percent probability or more) that the service connected left shoulder disability resulted in loss of use of the left hand or, in other words, whether the Veteran would be equally well served by amputation with prostheses at the site of election. This opinion was asked for because the Veteran reported symptoms in his hands that he asserted were related to the shoulder, and with the recognition that nerves run through the shoulder and enervate the hands. The Veteran would potentially be entitled to special monthly compensation for loss of use of the hand, if related to the shoulder disability. 38 C.F.R. §§ 3.350(a), 4.63 (2010). The Board stated that the examiner must provide a rationale for each opinion provided and that any recommended testing or examinations should be conducted. The agency of original jurisdiction obtained a March 2011 addendum from a new VA examiner who stated that the contents were based upon review of the claims file and an examination done on "11/2." It is no clear what this notation refers to. The examiner did not state whether there was nonunion of the left humerus (false flail joint) or loss of the head of the left humerus (flail shoulder) related to the service connected adhesive capsulitis of the left shoulder. The examiner opined that the Veteran had loss of use of the left upper extremity, but not of the left hand. The examiner stated that there was no relation between the shoulder and hand pain but did not provide a rationale other than the statement that there was no problem mentioned about his hand during that examination and no diagnosis was documented. No hand examination was done and, therefore, no opinion could be offered at that time. The examiner stated that if the Veteran had any service-related injury to the hand, he would need a hand examination. The addendum did not provide the necessary answers to the questions posed in the last remand. VA regulations provide that where "the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2010). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993) Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Provide the Veteran with a new VA examination, preferably with a new VA physician, to evaluate the current severity of the service connected adhesive capsulitis of the left shoulder. The claims folder, including this and the previous remands, must be sent to the new examiner for review. This review must be reflected in the examination report or in an addendum. The examiner should report the nature and severity of the Veteran's left shoulder disability, including any neurological impairment. The examiner must report whether there is any nonunion of the left humerus (false flail joint) or loss of the head of the left humerus (flail shoulder). The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the left shoulder disability results in loss of use of the left hand (i.e. the Veteran would be equally served by amputation with prostheses at the site of election). Such loss of use could come from neurologic impairment associated with the left shoulder disability. All indicated tests and examinations must be conducted, including, a hand examination. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, an explanation must be provided as to why this is so and what, if any additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history; all such reports must be acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the reason for doing so must be provided. 2. The AOJ should review the examination report to ensure that it contains all opinions and rationales requested in this remand. 3. If any benefit on appeal remains denied, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2010). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs