Citation Nr: 1313035 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 07-12 833 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1950 to September 1952. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Phoenix, Arizona RO. The Veteran requested a hearing before a Decision Review Officer (DRO); in March 2007 he withdrew the request. The matter was before the Board in June 2009, May 2011, and October 2012, when it was remanded for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's service connected disabilities (weakness of the right supraspinatus and teres minor muscle with partial subluxation of the right shoulder on stress and degenerative changes of the right (dominant) shoulder, rated 60 percent; radiculopathy and weakness of the right arm and hand, rated 30 percent; and left shoulder degenerative joint disease with rotator cuff disruption, rated 20 percent) are rated 90 percent combined, and are reasonably shown to render him unable to maintain substantially gainful employment. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met; a TDIU rating is warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as this decision grants the benefit sought there is no reason to belabor the impact of the VCAA in the matter; any notice defect or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system) with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA's General Counsel has concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities (weakness of the right supraspinatus and teres minor muscle with partial subluxation of the right shoulder on stress and degenerative changes of the right (dominant) shoulder, rated 60 percent; radiculopathy and weakness of the right arm and hand, rated 30 percent; and left shoulder degenerative joint disease with rotator cuff disruption, rated 20 percent). The combined rating is (with application of the bilateral factor) is 90 percent. The schedular ratings meet the schedular rating requirements for a TDIU rating under 38 C.F.R. § 4.16(a). Consequently, the only question remaining is whether due to the service-connected disabilities he is unable to engage in a substantially gainful occupation. The record indicates that the Veteran last worked in 1993, for Gold Coast Engineering as a master mechanic. The evidence further indicates that the Veteran underwent a right total shoulder arthroplasty in January 2004. On January 2006 VA examination, it was noted that the Veteran "must use left hand for most activities due to decreased strength in right hand." In an undated letter received by VA in August 2009, the Veteran's former employer stated that when the Veteran moved to Arizona "3 years ago", he worked part time sorting parts and doing grounds work, "nothing heavy". The employer stated that, after the Veteran's shoulder operation, "he hasn't been able to help because of lack of strength and the pain". On November 2010 VA examination, the examiner gave an opinion based upon review of the claims file as well as interview of the Veteran, "his studies herein", and examination of the right upper extremity. The examiner noted that the Veteran is right handed and worked as a machinist, a production engineer who built heavy machinery, for over 20 years until he stopped in 1995. At that time, the Veteran began receiving age-related Social Security benefits. The Veteran noted that he was not retired but had instead been unemployed since 1995. The examiner found that the Veteran's "right shoulder residuals of old trauma and surgical repair preclude any physical labor work." The examiner opined that the Veteran "is capable of sedentary employment, should he have the skills for one." On June 2011 VA examination, the Veteran reported that when he was working, he "worked through the pain", but had to retire when his "shoulder became bad"; he reported that the right shoulder was worse and indicated there was a marked decrease in function when the left shoulder also became symptomatic. He reported that all of his work involved the use of his shoulder. The examiner opined that pain and decreased endurance of the left shoulder caused significant effects on the Veteran's occupation. The diagnoses included left shoulder degenerative joint disease and left shoulder rotator cuff disruption. The examiner stated, "It is not possible to say beyond mere speculation how much each condition is contributing to the functional abnormalities." The RO then requested an addendum opinion regarding the Veteran's employability due to his service-connected disabilities. In a June 2012 addendum statement, the June 2011 VA examiner reiterated that the Veteran has degenerative joint disease and rotator cuff disruption of the left shoulder. The examiner stated that the Veteran has left shoulder functional limitations from both diagnosed disabilities of the left shoulder. The examiner opined that the Veteran has limitations for physical employment based on his left shoulder condition, as he is unable to lift more than 10 pounds, cannot perform overhead activities with his arms, and cannot perform repetitive pushing or pulling activities, with no additional limitations for physical employment; the examiner opined that there are no limitations for sedentary employment based on the Veteran's left shoulder condition, therefore the Veteran is able to secure and maintain substantially gainful employment with the limitations noted based on his left shoulder condition. On October 2012 remand, the Board found that the two VA opinions regarding the impact of each upper extremity, separately, on the Veteran's employability were not adequate to determine his entitlement to TDIU, and that a records review and medical opinion to evaluate the combined impact of his service-connected disabilities on his employability was necessary. In an October 2012 opinion, a VA physician reviewed the Veteran's claims file and the previous examinations. The reviewing physician stated that the evidence (the reports of the two previous examinations) shows that there is moderately decreased grip strength on the right, apparently related to the service-connected right upper extremity radiculopathy. In addition, based on the "November 2010 and 2012" examinations, the reviewing physician noted that the Veteran has limited range of motion, pain, and significantly limited function of both shoulders due to his service-connected bilateral shoulder conditions. The reviewing physician opined, based on the combined impact of these disabilities, that the Veteran would likely not be able to perform any type of physical labor, given the bilateral upper extremity limitations. The physician opined that the Veteran would, however, be expected to have only minor limitations for sedentary employment, with appropriate allowance for changing positions or taking short breaks. For employment requiring extensive phone work, the physician suggested that the Veteran would need to have a headset so he would not have to hold the phone to his ear for prolonged periods. The reviewing physician further opined that due to the radiculopathy, the Veteran would also likely be limited for prolonged typing due to some weakness and fatigability of his right hand. The physician opined that, with these caveats, sedentary employment should be possible despite the cumulative effect of the service-connected disabilities. The reviewing physician concluded that he agreed with the "November 2010 and 2012" VA opinions regarding the Veteran's employability, expanding on them only as necessary to include also the right arm radiculopathy as well as the cumulative impact of all of the disabilities. The physician found the previous opinions to be consistent with the reported findings on examination and the expected nature of limitations due to these types of disabilities. While some VA examiners have opined that the Veteran's service-connected disabilities do not preclude gainful sedentary employment, the evidence reflects that the Veteran's career has consisted entirely of employment in physical labor (machinist, production engineer who built heavy machinery). He last worked as a master mechanic, and he is right handed. The January 2006 VA examiner opined that he must use his left hand for most activities due to decreased strength in the right hand. The November 2010 VA examiner opined that his right shoulder residuals of old trauma and surgical repair preclude any physical labor work, adding that he is capable of sedentary employment "should he have the skills for one" (emphasis added). On June 2011 examination, the Veteran reported that all of his work had involved the use of his by-then-symptomatic left shoulder. The June 2012 addendum opinion noted that the Veteran's limitations for physical employment based solely on his left shoulder included the inability to lift more than 10 pounds, perform overhead activities with his arms, or perform repetitive pushing or pulling activities. The October 2012 reviewing physician offered suggestions to accommodate the Veteran for extensive phone work or prolonged typing, neither of which the Veteran has ever performed according to the evidence. The record does not reflect any work experience or training in an employment that is not physically demanding; he has indicated he does not. In summary, the Board finds that the evidence of record reasonably demonstrates that the Veteran's service connected disabilities are of such nature and severity as to preclude employment in any occupation consistent with his education and occupational experience. Consequently, a TDIU rating is warranted. ORDER A TDIU rating is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs