Citation Nr: 1306298 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 08-12 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to March 11, 2005, from May 1, 2005 through December 19, 2011, and from February 1, 2012. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from January 1979 through January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia which, among other issues, denied the Veteran's claim for a TDIU. In May 2005, a timely Notice of Disagreement (NOD) as to that issue was received from the Veteran. After a Statement of the Case (SOC) as to that issue was mailed to the Veteran in January 2006, the Veteran provided additional evidence in support of his TDIU claim. Thereafter, the RO readjudicated the Veteran's TDIU claim in a February 2008 Supplemental Statement of the Case (SSOC). A letter accompanying the SSOC notified the Veteran that he had 60 days from the date of the SSOC to perfect his appeal. In April 2008, the Veteran perfected his appeal via timely VA Form 9 substantive appeal. In April 2011, the Veteran testified during a Board hearing that was held before Acting Veterans Law Judge (AVLJ). A transcript of those proceedings is associated with the record. In October 2012, VA notified the Veteran that the ALVJ was no longer employed with the Board and inquired whether he wished to schedule a new hearing before a current Board member. In a response received later that month, the Veteran declined to schedule a new hearing and requested that the Board adjudicate his claim based upon the evidence of record. The Board previously remanded this matter in November 2012 for further development, to include obtaining an addendum opinion from the same examiner who performed the Veteran's July 2011 VA examination, or if that examiner is unavailable, to arrange the Veteran for a new VA examination to determine the impact of his left shoulder disability on his ability to secure and follow a substantially gainful occupation. The Board is satisfied that the development action ordered in its November 2012 remand has been performed and is prepared to proceed with its de novo consideration of this matter. The Board notes that the Veteran's appeal also initially included the issue of entitlement to an increased disability rating for his service-connected degenerative changes and displacement of the clavicle of the left shoulder. That claim was denied by the Board in July 2012 and is no longer an issue on appeal. FINDINGS OF FACT 1. The Veteran's claim for a TDIU was initially received in March 2004. 2. The Veteran's service-connected disabilities include degenerative changes and displacement of the clavicle of the left shoulder, rated as 20 percent disabling prior to February 8, 2006 and 30 percent disabling from February 9, 2006, and a scar, status post left distal clavicle excision, rated as 10 percent disabling from March 11, 2005. 3. Throughout the course of this appeal, for the purposes of 38 C.F.R. § 4.16(a), the Veteran's combined disability rating has never exceeded 40 percent, consisting of a single disability arising out of common etiology. 4. The evidence of record does not show that the Veteran's service-connected disabilities, in and of themselves, render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a pre-rating letter mailed to the Veteran in August 2004, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for a TDIU, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The RO's April 2005 rating decision reflects the initial adjudication of the claim after issuance of the August 2004 letter. The Board notes that the Veteran has not been provided specific notice regarding VA's assignment of disability ratings and effective dates (which are applicable in the event that the Veteran's TDIU claim is granted), as required under Dingess/Hartman. However, VA's failure to provide such notice has not been shown to be prejudicial to the Veteran in this case. In that regard, since the Board herein denies the Veteran's TDIU claim, neither a disability rating nor an effective date for any assigned disability rating is to be assigned. Accordingly, there is no possibility of prejudice to the Veteran arising out of VA's failure to provide notice as to the assignment of disability ratings and effective dates. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's service treatment records, claims submissions, VA treatment records, social security records, employment information, and lay statements have been associated with the record. The Veteran was also afforded VA examinations in March 2004, September 2004, February 2006, and July 2011 to examine the severity of his left shoulder disability and its effect on the Veteran's overall functioning. In December 2012, an addendum opinion was obtained, from the same VA examiner who performed the July 2011 examination, as to the impact of the Veteran's left shoulder disability on his ability to secure and follow a substantially gainful occupation. These opinions, along with the other evidence of record, are fully adequate for the purposes of determining whether the Veteran's left shoulder disability have rendered him unable to secure and follow a substantially gainful occupation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. TDIU Under VA laws and regulations, a TDIU may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In that vein, the Board notes that service connection is in effect for the Veteran for degenerative changes and displacement of the clavicle of the left shoulder, effective from November 20, 2003, and for a residual scar associated with left shoulder surgery, effective from March 11, 2005. Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned even where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining the above, the following will be considered as one disability: 1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor set forth under 38 C.F.R. § 4.26, 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. In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). Such cases are referred to the Director of the Compensation and Pension Service for extra-schedular consideration. At no time during the course of this appeal have the disability ratings assigned for the Veteran's service-connected disabilities resulted in a combined disability rating that meets the regulatory requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). Exclusive of a period of temporary total disability benefits awarded pursuant to 38 C.F.R. § 4.30 for post-surgical convalescence from March 11, 2005 through April 30, 2005, the Veteran's left shoulder disability was rated as 20 percent disabling through February 8, 2006. Once again, exclusive of temporary total disability benefits awarded from December 20, 2011 through January 31, 2012, the Veteran's left shoulder disability has been rated as 30 percent disabling since February 9, 2006. As noted above, service connection was awarded for a residual surgical scar, effective from March 11, 2005 with an assigned 10 percent disability rating. In view of the foregoing, and exclusive of the aforementioned periods of post-surgical temporary total disability benefits, the Veteran's combined disability rating from November 20, 2003 through March 10, 2005 was 20 percent (consisting solely of the Veteran's left shoulder disability rated as 20 percent disabling). From May 1, 2005 through February 8, 2006, and treating the Veteran's service-connected left shoulder disability and service-connected residual scar as constituting a single disability arising out of common etiology, the Veteran's combined disability rating was 30 percent (consisting of left shoulder disability rated as 20 percent disabling and residual scar rated as 10 percent disabling treated as a single disability arising out of common etiology). Since February 9, 2006 the Veteran's combined disability rating has been 40 percent (consisting of left shoulder disability rated as 30 percent disabling and residual scar rated as 10 percent disabling treated as a single disability arising out of common etiology). 38 C.F.R. §§ 4.16(a), 4.25, Table I. Accordingly, the Veteran's appeal turns upon the question of whether the extent of the Veteran's disabilities are so exceptional as to warrant consideration of a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b). The Veteran's informal claim for a TDIU was received by VA in March 2004. A formal VA Form 21-8940 application for a TDIU was received in September 2004. In support of his claim for a TDIU, the Veteran has asserted through his claims submissions, various written statements, and his April 2011 Board hearing that his service-connected left shoulder disability has rendered him unable to obtain and maintain substantially gainful employment. In his March 2004 informal claim, the Veteran asserted reported constant pain that was resulting in inability to lift heavy objects and rendered him "unable to keep a job making sufficient money...". He alleged further that most jobs required him to lift at least 50 pounds and that those jobs that did not involve such duties paid "only minimum wage." In a May 2004 statement, the Veteran reported that he was unable to lift more than 10 pounds and that his past jobs required him to lift more than 50 pounds. In a September 2004 statement, he also reported that he remained unable to lift with his left arm, and added that he was also unable to push or perform quick twists with his left arm. He stated that he was experiencing pain in his shoulder while operating floor buffers in his employment with a supermarket chain. The post-service VA treatment records dated from August 2003 through March 2005 reflect ongoing diagnoses of left shoulder status post left acromioclavicular (AC) joint separation with degenerative joint disease and impingement of the supraspinatus muscle. The records during that period show that the Veteran's left shoulder disability was manifested by a physical deformity of the left AC joint, chronic pain, and decreased left shoulder motion with crepitus. During a March 2004 VA examination, the Veteran complained of localized pain in the left shoulder and reported that he had difficulty with overhead activities, heavy lifting, and balancing objects with his left arm. The pain symptoms were described as being 10 out of 10 in severity and reported as being a five or six out of 10 if he did not perform any heavy lifting, pushing, or pulling. Range of motion testing performed at that time revealed passive flexion from zero to 155 degrees, internal and external rotation from zero to 90 degrees, and abduction to 150 degrees. Pain was reported which was described as being five to approximately eight or nine in severity. Repetitive left shoulder motion resulted in further loss of motion which included forward flexion from zero to 40 degrees, internal and external rotation to 90 degrees, and abduction to 130 degrees. No loss of strength or swelling was noted. The examiner did not provide an opinion as to what impact, if any, the Veteran's left shoulder disability was having on his employability. Range of motion testing performed during May 2004 VA treatment revealed forward flexion of the left shoulder to 120 degrees, abduction to 90 degrees, internal rotation that was limited to the L5 region, and external rotation to 30 degrees. As noted above, the Veteran asserted in a May 2004 statement that he was unable to lift more than 10 pounds with his left arm. In his September 2004 statement, he stated that he was unable to perform activities with his left arm that involved pushing or quick twisting. During a September 2004 VA examination, the Veteran reported increasing left shoulder pain that was worse on rainy days and after doing heavy lifting. He also reported increased weakness and becoming easily fatigued in the left shoulder. At that time, he stated that he was unable to lift weights of more than 20 pounds and that this affected his employment status. Occupationally, he reported that he most recently worked in 2003 as a part-time janitor. He stated that he now stayed at home and watched his daughter. Despite his reported symptoms and occupational impairment, he stated that he was able to perform activities of daily living such as eating and dressing. During physical examination, the Veteran was able to produce active forward flexion of the left shoulder from zero to 100 degrees, external rotation to 70 degrees, and internal rotation to L5. Strength in the shoulder was full and sensation to light touch was intact. Once again, no opinion was given as to the Veteran's employability. In March 2005, the Veteran underwent surgery for excision of the distal clavicle. VA treatment records immediately following his March 2005 surgery show that the Veteran initially did well post-surgically. However, records from May 2005 show that the Veteran began complaining of recurring left shoulder pain that was present after activities involving heavy lifting and pulling. At that time, the Veteran was advised that he would be limited in terms of activity and strength involving his left shoulder due to the combination of his injury and surgery. During a VA examination performed in February 2006, the Veteran continued to report localized left shoulder pain near the AC joint. He reported that he was unable to lift weights greater than five pounds and that he also experienced pain after repetitive pushing and pulling. Regarding his activities of daily living, he reported that he was able to perform all activities of daily living except difficulty putting on his shirt or jacket, elaborating that he had to put his left arm in first. A physical examination revealed active range of motion which included forward flexion to 35 degrees, abduction to 30 degrees, internal rotation from zero to 45 degrees, and no external rotation. The Veteran declined to participate in repetitive motion testing due to pain. Strength in the left shoulder was decreased to 4/5 and the Veteran guarded his shoulder throughout the examination. Neurologically, sensation continued to be intact. VA treatment records from February 2008 show that the Veteran continued to report left shoulder pain and decreased range of motion. During March 2009 treatment, an examination noted remaining bony deformity that was located over the anterior shoulder with pinpoint tenderness. Range of motion testing at that time revealed forward flexion to 90 degrees with a painful arc to 140 degrees, abduction on a painful arc from 90 to 140 degrees and up to 160 degrees, internal rotation to his belt line, and external rotation to 60 degrees. In June 2009, the Veteran received a corticosteroid injection in his left shoulder. X-rays performed at that time revealed an ongoing significant bony growth at the distal end of the clavicle that was resulting in ongoing impingement. During treatment in July 2009, the Veteran reported that he had recently worked in the fast food industry and that he was able to perform the task of flipping burgers with his right hand. During examination, the Veteran was able to produce palms down adduction of the left shoulder to 90 to 95 degrees, forward flexion to 160 degrees with active assistance, and external rotation to 30 degrees. Social security records in the claims file show that the Veteran applied for social security disability benefits, on the basis of his left shoulder disability, in 2010. In connection with his claim, the Veteran reported functional impairment as noted above. During an August 2010 medical examination performed in connection with his social security disability claim, the Veteran reported ongoing left shoulder pain with limited range of motion. He also reported occasional numbness and tingling in his left hand. Occupationally, he reported that he was working until three months ago and stated that remained independent in all activities of daily living. A musculoskeletal examination performed at that time confirmed the presence of a bony prominence in the left shoulder. Demonstrated range of motion at that time included abduction to 90 degrees, internal and external rotation to 20 degrees, adduction to 30 degrees, and extension to 20 degrees. Grip strength in the left hand was normal. Muscle reflexes were also normal and symmetrical with the left upper extremity. Functionally, the examining physician determined that the Veteran was having problems with overhead and reaching activities involving the left arm. Nonetheless, the physician noted that the Veteran did not have any limitations in his ability to sit, stand, and walk. The physician also determined that the Veteran was able to bend, lift, and carry objects weighing 20 pounds frequently and 40 pounds occasionally. The physician also noted that the Veteran remained able to reach, handle, feel, grasp, and finger with his right (dominant) upper extremity. Based largely upon the findings from the August 2010 medical evaluation, the Social Security Administration determined in September 2010 that the Veteran remained capable of employment despite surgery and treatment for his left shoulder. VA treatment records through 2011 continue to reflect complaints of left shoulder pain and muscle weakness. Film studies performed in April 2011 continued to reveal some remaining exostosis in the clavicle joint. During his April 2011 Board hearing, the Veteran testified that he continued to experience difficulty with lifting activities and that he was experiencing current symptoms in his left shoulder of weakness and decreased strength. He also reported functional limitations which caused difficulty with dressing and mowing the lawn. Occupationally, he reported that he had difficulty lifting heavy loads weighing approximately 35 to 40 pounds during his most recent employment at a fast food restaurant. During another VA examination performed in July 2011, the Veteran continued to report left shoulder pain with flare-ups that occurred after rainy weather. Demonstrated range of motion during the examination included flexion to 20 degrees with pain beginning at 10 degrees and abduction to 30 degrees with pain from 20 degrees. This time, repetitive motion tests were performed and did not reveal any additional loss of motion after repetition. Pain was present on palpation of the shoulder and guarding was noted. Muscle strength in the left shoulder was again diminished to 4/5 during abduction and forward flexion. Occupationally, the Veteran reported that he had been fired from previous employment as a warehouse laborer due to his inability to perform his job tasks due to his left shoulder pain. The Veteran reported that he was also unable to perform tasks at his recent employment at a fast food restaurant in that he was unable to lift heavy boxes. Concerning his job training, the Veteran stated again that he had a high school diploma but did not have any professional or sedentary job training. The examiner determined that the Veteran was unable to perform work in his usual field as a warehouse worker; however, noted that the Veteran was right-handed and opined that he was able to work in a sedentary field such as answering telephones. In December 2011, the Veteran underwent surgery for subacromial decompression to relieve the impingement in his left shoulder. VA treatment records following the surgery indicate that the Veteran initially did well post-operatively; however has continued to experience ongoing left shoulder pain with decreased motion. During treatment in February 2012, he was able to produce abduction to 60 degrees, forward flexion to 90 degrees, and had decreased internal and external rotation. All motion was accompanied by pain. In April 2012, the Veteran expressed that he felt that his shoulder was improving. Range of motion testing performed at that time revealed forward flexion to 110 degrees, external rotation to 30 degrees, internal rotation to the L5-S1 junction. Strength in the shoulder was full and sensation was intact throughout. In a December 2012 addendum opinion, the VA examiner from the July 2011 examination expressed his belief that the question of whether the Veteran was capable of obtaining or maintaining substantially gainful employment is a legal/vocational question and not a medical question. Hence, the examiner opined that he was not competent to provide such an opinion. Nonetheless, the examiner noted again that the Veteran was right-hand dominant and that physical limitations consisted of the inability to lift weights of more than 10 pounds with his left (non-dominant) arm. Hence, the examiner offered the opinion that the Veteran remained capable of working jobs that do not require him to lift heavy objects with his left extremity. Overall, the medical evidence shows that, for all periods relevant to this appeal, the Veteran's left shoulder disability has been manifested by chronic pain, weakness, lack of endurance, and diminished range of motion that have hindered his ability to raise his left arm, work overhead, or lift weights of more than five to 10 pounds. Despite these manifestations, the Veteran has remained largely independent in his activities of daily living, which would appear to indicate that the Veteran had good overall function remaining in his left shoulder. Regarding his occupational and educational experience, the Veteran reported in his September 2004 formal application, prior work experience as a machinist from March 1997 through July 2000, as an order selector for a supermarket chain from July 2000 through January 2001, as a warehouse floorman for a maintenance company from April 2001 through March 2003, and as a janitor for a local city government from January through June of 2003. He reported education through four years of high school, but did not report any other specialized education or training. Certainly, the Veteran's left shoulder disability has resulted in an inability to perform heavy lifting and diminished ability to work overhead or freely move his left arm. Information obtained from the Veteran's previous employers reflect that the Veteran's inability to perform such tasks caused difficulties in his previous employment. As acknowledged in the July 2011 VA examination and December 2012 addendum reports, the Veteran has been unable to perform the tasks associated with his usual occupations. Nonetheless, the examiner determined that the Veteran remained capable of performing work associated with a sedentary job such as answering telephones, and in fact, opined that the Veteran remained physically capable of performing any job that did not require him to lift more than 10 pounds. Indeed, given the functional capacity, the extent of left shoulder motion, and continued independence with activities of daily living that have been demonstrated by the Veteran throughout the course of this appeal, the Board finds that the evidence does not suggest that the extent of the Veteran's disabilities is such that consideration of a TDIU on an extra-schedular basis is warranted. In its reliance upon the opinions given in the July 2011 and December 2012 VA examination reports, the Board acknowledges the examiner's belief that an opinion as to whether the Veteran's disability has prevented him from securing or following substantially gainful employment is outside the realm of his medical expertise. Without expressing its own opinion as to the examiner's statement in that regard, the Board emphasizes that the examiner has identified the extent of the Veteran's function (as demonstrated during physical examination of the Veteran), and based upon such demonstrated function, opined that the Veteran remains able to perform tasks that do not require lifting more than 10 pounds. Certainly, a determination of the Veteran's left shoulder function and any physical limitations are questions upon which a physician may be expected to provide probative opinions. As such, the Board assigns great probative weight to the VA examiner's uncontradicted July 2011 and December 2012 opinions. The Board is cognizant of, and sympathetic to, the Veteran's assertions that he has experienced difficulties in seeking lasting employment. Nonetheless, the fact that a veteran is unemployed or has difficulty obtaining employment is insufficient, in and of itself, to establish unemployability. The relevant question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the weight of the evidence of record does not support a finding that the Veteran's service-connected disabilities, in and of themselves, render him unable to secure and follow a substantially gainful occupation. As such, the evidence does not show any basis upon which to refer this matter to the Director, Compensation and Pension Service, for consideration of a TDIU on an extra-schedular basis. Accordingly, the preponderance of the evidence is against his claim of entitlement to TDIU, and that claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the 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. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to a TDIU, prior to March 11, 2005, from May 1, 2005 through December 19, 2011, and from February 1, 2012, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs