Citation Nr: 1319565 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 12-32 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 50 percent for a left shoulder disability. 2. Entitlement to a total disability rating for individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Appellant represented by: Robert A. Friedman, Attorney ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from January 1949 to June 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Seattle, Washington. In this appeal, the Veteran is the appellant, but he has been determined by VA as not competent to handle disbursement of VA benefits and ANA Guardianship Services of Puyallup, Washington, has acted as the Veteran's custodian of record to handle his VA financial benefits. In a review of the claims file and the Veteran's eFolder the Board notes that the Veteran filed a VA Form 21-4138 (Statement in Support of Claim), dated in June 2012 and received by VA in July 2012, in which the Veteran contests the assignment of a payee to handle his VA financial benefits. It appears no action has been taken on this claim. Therefore, the Board refers this matter to the RO for appropriate action. On his November 2012 VA Form 9, Substantive Appeal the Veteran's attorney requested a local hearing at the RO before a Decision Review Officer (DRO). In a February 2013 DRO conference, the attorney informed VA that the Veteran wished to withdraw this request for a hearing so that his appeal could proceed to the Board for adjudication. Thus, the Board deems that the Veteran has withdrawn his request for a local DRO hearing. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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). FINDINGS OF FACT 1. The Veteran is currently receiving the maximum schedular rating assignable for his service-connected left shoulder (minor extremity) disability manifested by the prosthetic replacement of the shoulder joint in the absence of an additional shoulder replacement or a related loss of use that would be equally well-served by an amputation stump with suitable prosthesis. 2. The Veteran is service-connected for left shoulder humeral head arthroplasty due to degenerative joint disease and recurrent dislocation with scar with a 50 percent disability rating. His combined evaluation totals 50 percent. 3. The evidence is at least in equipoise regarding whether the Veteran's service-connected disability renders him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 50 percent for left shoulder humeral head arthroplasty due to degenerative joint disease and recurrent dislocation with scar for the period from September 1, 2007, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5051, 5124, 5125 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). (CONTINUED ON THE FOLLOWING PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in letters from the RO dated in December 2008, July 2011, and May 2012. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. Thereafter, these claims were reviewed in a supplemental statement of the case issued in February 2013. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009)). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the correspondence dated in December 2008, July 2011, and May 2012. As the Board is awarding the Veteran a full grant of the benefit being sought for a TDIU, any errors VA made with respect to VCAA notice for that claim are considered non-prejudicial. With regard to the additional notice requirements for increased rating claims, it is acknowledged that the VCAA letters sent to the Veteran in July 2011 and May 2012 may not fully satisfy the specifics of the original Court decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which required VA to notify a veteran of alternative diagnostic codes or potential "daily life" evidence of how the disability affected the veteran's employment. However, these letters did advise the Veteran of the criteria necessary to substantiate a higher rating for his service-connected disability. In any event, the United States Court of Appeals for the Federal Circuit has vacated the Court's previous decision in Vazquez-Flores, concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). The Board finds that the Veteran received such notice. In addition, the Veteran and his attorney have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. Next, VA has a duty to assist a veteran in the development of his claim. This duty includes assisting him in the procurement of pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. The RO has obtained private and VA treatment records which appear either in the claims file or in the Veteran's eFolder. The Veteran and his attorney have submitted multiple written statements discussing his contentions. The Veteran also was provided with VA examinations concerning his higher rating claim and his claim for individual unemployability. While efforts to obtain the Veteran's medical records from the Social Security Administration (SSA) were unsuccessful as SSA informed VA in April 2010 that the Veteran's records had been destroyed, the Board finds that the available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. Increased Ratings - Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision, therefore, is being undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As a layperson the Veteran is only competent to report observable symptoms - not clinical findings which are applied to VA's Schedule for Rating Disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. Left Shoulder Historically, service connection was granted for a repaired left shoulder with recurrent dislocation and post-operative scar in a March 1964 rating decision. An initial noncompensable or zero percent rating was awarded, effective September 30, 1963. This rating was increased to 10 percent, effective October 16, 1972, in a December 1972 rating decision. In an August 1973 rating decision, the RO granted a temporary total evaluation (TTE) from May 31, 1973 to August 31, 1973, for left shoulder surgery with a 20 percent disability rating thereafter from September 1, 1973. In November 2006, the Veteran filed a request for an increase essentially contending that he was entitled to a higher rating because of recent left shoulder surgery. The RO granted a TTE in a May 2007 rating decision that was awarded from July 24, 2006, through August 31, 2007, for left shoulder surgery requiring convalescence. See 38 C.F.R. § 4.30 (2012). A 20 percent disability rating was to commence after the TTE expired on September 1, 2007. However, after the Veteran submitted correspondence from his physician the disability rating for his post-TTE period was changed in an August 2007 rating decision to 50 percent rather than 20 percent. In September 2008, the Veteran filed his request for an increase essentially contending that he was entitled to a higher rating. The Veteran's left shoulder disability is currently evaluated under Diagnostic Code 5051. Under this provision, a 100 percent rating is assigned for prosthetic replacement of the shoulder joint for 1 year following implantation of prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5051. With chronic residuals consisting of severe, painful motion or weakness in the affected extremity, a 60 percent rating is assigned for the major extremity and a 50 percent rating for the minor extremity. Id. Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to diagnostic codes 5200 and 5203. Id. The minimum rating that can be assigned is 30 percent for the major extremity and 20 percent for the minor extremity. Id. A review of the record confirms that the Veteran is right hand dominant, although the February 2012 VA examiner mistakenly recorded that he was left hand dominant. As such, his left upper extremity is considered the minor extremity. See 38 C.F.R. § 4.69 (2012). Normal range of motion in the shoulder is from 0 to 180 degrees of forward elevation (flexion), 0 to 180 degrees of shoulder abduction and 0 to 90 degrees in external and internal rotation. See 38 C.F.R. § 4.71a, Plate I. The Board must also consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Private medical records and correspondence from Dr. D.M.K., the Veteran's private physician, dated from June 2006 to April 2007, detailed the Veteran's left shoulder disability immediately before and after his July 24, 2006, left shoulder humeral head arthroplasty for left shoulder degenerative arthritis with chronic rotator cuff tear. According to July 2007 correspondence from Dr. D.M.K., the Veteran's 2006 left shoulder arthroplasty for degenerative joint disease, recurrent dislocation, and a massive rotator cuff tear was successful in eliminating pain and swelling, but was not so with respect to function. Dr. D.M.K. reported very limited use with respect to the left upper extremity. While he had anticipated a recovery that had not proved to be the case. He stated that the Veteran had very limited forward elevation (10 to 15 degrees) and similar abduction. Dr. D.M.K. thought that largely the left upper extremity could be considered useless for normal function of work activities and also very limited with respect to self care. VA treatment records dated in July 2008 show the Veteran's bilateral shoulder disabilities were asymptomatic, there was no pain, and the Veteran was not taking any medications for them. However, another record of the same date noted an anterior scar to the left shoulder and that the Veteran was not able to abduct the shoulder. Another July 2008 VA medical record noted that the Veteran had limitations with lifting, pushing, pulling two pounds or more, and had no use at or above the shoulder level. The Veteran underwent a VA examination in January 2009, three years after the replacement of his left shoulder. He complained of painful motion in the replacement joint and the following symptoms: weakness, giving way, lack of endurance, fatigability, and dislocation. He denied stiffness, swelling, heat, redness and locking. He reported constant aching pain in the left shoulder. The pain was elicited by physical activity and relieved by Vicodin and Etodolac. He said that when in pain he could function without medication. He described additional symptoms of limited pushing and pulling due to the left shoulder. The Veteran told the examiner of some pain improvement with the surgery but that he still could not do a lot of things. The Veteran asserted functional impairment due to the left shoulder's loss of range of motion. On examination, it was noted that the Veteran was right hand dominant because he used the right hand to write. Range of motion of the left shoulder measured as follows: flexion to 55 degrees (with pain occurring at 40); abduction to 35 degrees (with pain occurring at 20); external rotation to 60 degrees (with pain occurring at 30); and internal rotation to 90 degrees. The left shoulder joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. An X-ray study of the left shoulder showed left shoulder status post arthroplasty with hardware in place and no loosening noted. Otherwise, a negative left shoulder appeared. Diagnosis was left shoulder humeral head arthroplasty secondary to degenerative joint disease and recurrent dislocation with scar. The Veteran's condition was noted as stable with loss of range of motion. The VA examiner summarized the effect of the Veteran's left shoulder disability on his daily activity as an inability to raise the arms over the head and no power in the arms. The January 2009 VA examination also noted a surgical scar on the anterior left shoulder measuring about 16 cm. by 0.2 cm. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture, limitation of motion, effusion, weakness, redness, heat, guarding of movement or subluxation related to this scar. A January 2010 VA spinal cord injury hospital admission history and physical noted that the Veteran reported decreased motor strength on the left upper and lower extremities with tingling throughout. He denied any change in sensation. On physical examination, a notable atrophy of the bilateral upper extremities was noted. Forward flexion of the shoulder measured to 90 degrees bilaterally and abduction to 110 degrees bilaterally. VA medical records dated in January 2010 and March 2010 noted chronic bilateral shoulder pain and that the Veteran routinely took Etodolac and Vicodin whenever necessary. The Veteran underwent a VA examination of his left shoulder in February 2012. An X-ray study of the left shoulder showed a humeral head prosthesis with no evidence of slippage or osteomyelitis or of any other abnormality. Diagnosis was left shoulder humeral head arthroplasty surgery due to degenerative joint disease and recurrent dislocation, residual of scars, left shoulder ankylosis with no range of motion listed as the residual sign or symptom of arthroscopic surgery. The Veteran complained that the flare-ups of this condition impacted function and led to loss of use of the left arm. Range of motion of the left shoulder measured as follows: flexion and abduction to 0 degrees. The Veteran was able to perform repetitive use testing, but had no additional limitation in range of motion of the shoulder and arm following repetitive use testing. Pain on movement was listed as the only functional loss or impairment of the left shoulder, but that pain did not include pain on palpation or guarding of the left shoulder. Ankylosis of the left glenohumeral articulation (shoulder joint) was noted as abduction was limited to 25 degrees from the side. The February 2012 VA examiner and the Veteran were unable to perform several tests for rotator cuff conditions and there was no history of mechanical symptoms of instability, such as clicking or catching. There was no tenderness or palpation of the AC joint and there was no other AC joint condition or impairment of the clavicle or scapula noted. The VA examiner denied that there was any functional impairment of the left upper extremity such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis. A scar on the left shoulder was diagnosed, but it was not painful, or unstable, or due to burns, or exceed 39 sq. cm., or result in any limitation of function. The linear scar was measured as 12 cm. In a September 2012 VA medical opinion based in part on the results of the February 2012 VA examination, a Dr. M.T.O. reviewed the claims file and explained that the left shoulder flexion and abduction were both to zero degrees. The anklylosis section included a notation about 25 degrees because that was the only or most appropriate option given to the February 2012 VA examiner to describe the degree of left ankylosis. Based on the evidence of record, the Board finds that a rating in excess of 50 percent for a left shoulder disability is not warranted. The Veteran underwent left shoulder surgery in July 2006. As noted above, the RO granted a TTE 100 percent rating (for convalescence following surgery), effective from July 24, 2006, to August 31, 2007. See 38 C.F.R. § 3.430 (2012). The 100 percent rating in effect during this period is the maximum rating possible under all potentially applicable rating criteria; the Veteran cannot be awarded more than 100 percent under schedular criteria at any given time. See 38 C.F.R. § 4.71a. Therefore, the Board need not discuss the impact of DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain), before finding that an increased schedular rating for a left shoulder disability is not warranted for this period. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As to the period pertinent to the Veteran's claim for increased rating, the Board finds that the Veteran is currently receiving the maximum schedular rating for the minor upper extremity under the applicable diagnostic code absent evidence of a further shoulder replacement or a related loss of use that would be equally well-served by an amputation with a suitable prosthesis. As indicated above, a 50 percent rating is assigned for the minor upper extremity whenever there are chronic residuals consisting of severe painful joint or weakness in the affected extremity. Such is the case here. For a rating increase, the medical records would have to show that the Veteran underwent additional shoulder surgery, subsequent to the prosthetic replacement in July 2006. VA treatment records dated through May 2012 do not show any additional surgery of the left shoulder or that such surgery is contemplated. There is also no evidence of related loss of use that would be equally well-served by an amputation with a suitable prosthesis. Thus, a rating in excess of 50 percent is not warranted. Moreover, a TTE for additional convalescence following left shoulder surgery is not indicated. The Board also finds no basis for assigning a higher rating based on functional impairment due to pain on motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). The Board notes that Diagnostic Code 5202 provides for a 70 percent rating when there is loss of head of the humerus (flail shoulder) in the minor extremity. 38 C.F.R. § 4.71a. The Veteran's attorney argues in his November 2012 VA Form 9, Substantive Appeal that the Veteran's left shoulder condition should be considered analogous to a flail shoulder because of the loss of function as it imposed as severe functional restrictions as a flail shoulder would. In this case, however, the Veteran has undergone a prosthetic replacement of the shoulder joint as a result of his July 2006 surgery, and his left shoulder disability must be rated pursuant to Diagnostic Code 5051. And while Diagnostic Code 5051 allows for rating by analogy to diagnostic codes 5200 [ankylosis of the scapulchumeral articulation] and 5203 [impairment of the clavicle or scapula] to achieve a lower rating under Diagnostic Code 5051, there is no provision for rating by analogy to Diagnostic Code 5202 for loss of humerus head or flail shoulder in the wake of prosthetic surgery. In addition, both X-ray studies associated with VA examinations in January 2009 and February 2012 do not show that the left shoulder arthroplasty hardware has loosened or that any other abnormality of the left shoulder is present. Therefore, rating by analogy to a flail shoulder under Diagnostic Code 5051 is not appropriate when the claimant has undergone prosthetic replacement surgery, no further replacement surgery is contemplated, and X-ray evidence shows no abnormalities related to the humeral head prosthesis. Furthermore, the Veteran's left shoulder surgical scar is noncompensable. This scar would have to meet the regulatory criteria for rating a scar under the regulations in force for rating scars when the Veteran filed his claim for increase in September 2008. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7804 (2007). As noted above, this scar was described as not painful or unstable and less than 39 sq. cm. Under the former criteria for rating scars, scars other than the face, neck, or head needed to be deep or cause limited motion and exceed at least 39 sq. cm., or be superficial and not cause limited motion and exceed 929 sq. cm., or be superficial or unstable, or be superficial and painful on examination. The amended schedule applies to all applications for benefits received by VA on or after October 23, 2008. See Schedule for Rating Disabilities; Evaluation of Scars, 73 Fed. Reg. 54,708 (Sept. 23, 2008). A veteran whom VA rated before such date may request review under these clarified rating criteria, but here the Veteran has never requested review under the amended scar rating criteria. The Board also finds that at no time during the appeal period has the Veteran's left shoulder disability been more than 50 percent disabling. The Board has also considered whether a staged rating is appropriate; however, in the present case, the Veteran's symptoms remained relatively constant throughout the course of the period on appeal (except for the period of the TTE noted above and except for decreased range of motion) and as such staged ratings are not warranted in this case. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Board's discussion of the possibility of a higher rating based on extraschedular consideration is postponed until the following section when the Board discusses the Veteran's claim for an extraschedular TDIU. TDIU - Laws and Regulations Total disability means that there is present an impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation is "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides" or "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income." See VA Adjudication Procedure Manual, Part IV.ii.2.F.24.d., and Faust v. West, 13 Vet. App. 342, 356 (2000), respectively. A veteran is determined unable to engage in a substantially gainful occupation when jobs are not realistically within his physical and mental capabilities. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Two different means exist to determine whether a veteran is totally disabled. The Schedule for Rating Disabilities provides for a finding of total disability to be made on an objective basis. A veteran is considered totally disabled if his service-connected disability is, or combination of service-connected disabilities are, rated at 100 percent. 38 C.F.R. § 3.340(a)(2). Even if the veteran is less than 100 percent disabled, he still will be considered totally disabled if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent rating. If he has one service-connected disability, it must be rated at 60 percent or more. If he has two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran fails to meet these objective criteria, he may be found totally disabled on a subjective basis. To qualify, the veteran must show only that he is unable to secure and follow substantially gainful employment as a result of his service-connected disability or disabilities. 38 C.F.R. § 4.16(b). This determination is based on extraschedular factors such as the veteran's service-connected disability or disabilities, employment history, and educational and vocational background. Id. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran seeks a TDIU due to his service-connected left shoulder disability. He essentially contends that his service-connected left shoulder disability so limits the functions and abilities of his left arm and shoulder that he is no longer able to secure and follow substantially gainful employment. In this case, the Veteran is currently service connected for left shoulder humeral head arthroplasty due to degenerative joint disease and recurrent dislocation with scar with a 50 percent disability rating. His overall combined evaluation thus totals 50 percent. Therefore, the TDIU schedular requirement for a disability rating of 60 percent or more when service-connected for only one disability has not been met. 38 C.F.R. § 4.16(a). As the service-connected disability in this case does not meet the schedular requirements for TDIU, VA must also consider whether the Veteran may be entitled to TDIU under 38 C.F.R. § 4.16(b). This regulation provides that veterans who are unable to secure gainful employment by reasons of service-connected disabilities, but fail to meet the criteria in 38 C.F.R. § 4.16(a), shall receive extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension (C&P) Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). Such a rating can include a total disability rating based on individual unemployability. 38 C.F.R. § 4.16(b). The remaining question now before the Board, therefore, is whether the Veteran is unable to secure and follow substantially gainful employment by reason of his service-connected disability on an extraschedular basis. The record reflects that the Veteran is nearly 83 years old. According to the Veteran's VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) dated in October 2007 and December 2007 the Veteran had most recently worked as a security guard from 1994 to 2006 until he became disabled in June 2006 due to his left shoulder. He indicated that he did not receive any disability retirement benefits or worker's compensation benefits when leaving the security job. He has not tried to obtain a job since then. The Veteran also indicated that he had completed one year of college. A February 2008 form from the Veteran's former employer indicates that he worked as a security guard from 1994 to 2006 for an average 47.60 hours a week until he quit in August 2006. The Board also notes that the RO twice referred the case to the Director of the Compensation and Pension Service for a decision on the possible assignment of an extraschedular rating. An October 1973 letter to VA from the Veteran's former service representative noted that the Veteran was then currently involved in state vocational training as a bookkeeper. However, May 1985 correspondence from VA to the Veteran informed him it could not approve his application for vocational rehabilitation training because his eligibility period had expired and he would have to apply with the state division of vocational rehabilitation. An April 2007 letter from Dr. D.M.K., the Veteran's private physician, noted that the Veteran had severe post-operative residuals from his July 2006 left shoulder humeral head arthroplasty. They included an inability to raise the left upper extremity or use it for pushing out of a chair and functional activities such as eating and driving. Because of this inability to use the left upper extremity for functional tasks such as driving, lifting of weight, and raising the arm, Dr. D.M.K. stated that the Veteran was not able to return to gainful employment which would require use of the left upper extremity. According to July 2007 correspondence from Dr. D.M.K. the Veteran's left upper extremity could be considered useless for normal function of work activities and also very limited with respect to self care. Dr. D.M.K. stated that he believed that the Veteran's left shoulder disability should be rated 100 percent permanently disabled. As the Veteran's left upper extremity was nonfunctional, Dr. D.M.K. opined that the Veteran should also be considered unemployable. A July 2008 VA medical record noted that the Veteran had limitations with lifting, pushing, pulling two pounds or more, and had no use at or above the shoulder level. The examining physician further noted that use of the Veteran's upper left extremity for clerical work such as typing or writing was limited to a maximum of two hours daily. In a July 2008 signed statement the Veteran contended that no employer would hire him because of his unstable shoulder and fear of a liability claim. The claims file also contains correspondence from a VA physician, Dr. E.R.B, dated in September 2008. Dr. E.R.B. noted the Veteran's left shoulder arthroplasty in 2006 and stated that the Veteran now had very limited use of his left and right upper extremities and had very limited forward elevation and abduction. Dr. E.R.B. noted that the Veteran's left upper extremity has been considered useless for normal function of work activities and also very limited with respect to self care by an orthopedic specialist. Additionally, Dr. E.R.B. indicated that the Veteran's orthopedic surgeon stated that the Veteran should be considered 100 percent permanently disabled and unemployable. Dr. E.R.B. said that he agreed with these assessments. A February 2009 Report of Contact between the Veteran and the RO clarified that the Veteran sought entitlement to a TDIU and was not claiming a pension. VA treatment records dated from January to March 2010 show treatment for a traumatic brain injury and a cervical spinal cord injury with resultant tetraplegia after a ground level fall on the wet floor in his bathroom at home in December 2009. After a private spinal stabilization laminectomy, drainage of paraspinal fluid collected at the surgery site, and pneumonia, he spent several weeks in VA's spinal cord injury unit for rehabilitation before being moved to the Washington Soldiers Home. A March 2010 medical record from the Washington Soldiers Home reflects the following diagnoses for the Veteran: hyperlipidemia, anemia status post blood transfusion, tetraplegia (quadriplegia), hypertension, coronary artery disease, bilateral inguinal hernia, neurogenic bowel, neurogenic bladder, benign prostatic hypertrophy, chronic bilateral shoulder pain, dysphagia, incomplete cervical spinal cord injury with cervical fracture, a history of a metabolic disorder, a urinary tract infection, status post traumatic brain injury, status post peg tube, and neurogenic skin. The Veteran was admitted to the facility in March 2010, several months after his fall. A diagnosis list from the Soldiers Home found on his eFolder and received at VA in August 2011, but dated a year earlier, is very similar to the March 2010 list of diagnoses. A March 2012 VA discharge summary also noted a history of gastroesophageal reflux disease (GERD), compromised nutrition, mobility issues, and social/psychological issues. An April 2011 VA medical record noted that the Veteran used a reconditioned power wheelchair set at the lowest speed per his report to avoid injury. It was also noted that tube feedings were discontinued in March 2011. The Veteran underwent a VA examination in February 2012. A cardiac examination showed coronary artery disease diagnosed in 1975 and status post cardiac catherization with stent implantment in 1970 after a history of chest pain. The VA examiner noted that the etiology of the Veteran's coronary artery disease was unknown and that the Veteran needed to take continuous medication to control his heart condition. The Veteran had never had a myocardial infarction and did not have congestive heart failure, a cardiac arrhythmia, a heart valve condition, or any infectious cardiac conditions. On examination, heart rate and heart sounds were normal as were the results of an EKG and echocardiogram. The VA examiner also reported that the Veteran's nonservice-connected heart condition impacted his ability to work as it limited his physical activities. The February 2012 VA examination also diagnosed a right shoulder disorder, degenerative joint disease of the right shoulder. The VA examiner concluded too that the Veteran's service-connected left shoulder disability impacted his ability to work because there was total loss of use of the left shoulder and arm and the Veteran was not able to lift or reach overhead. The February 2012 VA examiner also diagnosed cervical spine myelopathy, status post cervical fusion surgery with scar and left hemiparesis, as a result of the Veteran's fall from bed in 2009 when he broke his neck. This was followed by cervical spine fusion surgery after which the Veteran has complained of weakness in the left extremities. Muscle strength testing showed normal strength in the right upper extremity but some decreased muscle strength in the left upper extremity. Reflex and sensory examinations were normal for both the left and right upper extremities and there was no radicular pain or any other signs or symptoms due to radiculopathy. It was also noted that the Veteran used a wheelchair on a regular basis. The February 2012 VA examiner concluded that the Veteran's nonservice-connected cervical spine disorder impacted his ability to work because the Veteran was now unable to walk and was wheelchair-bound with left extremity weakness. In March 2012 correspondence, M.A.H., a certified rehabilitation counselor with 19 years of experience as a vocational expert for the Social Security Administration, told the Veteran's attorney, after a telephone interview of the Veteran, that the Veteran would not be employable or able to secure or follow a substantially gainful occupation if his left upper extremity is useless of normal function or work activities. The correspondence noted that the Veteran was right handed and had previously worked as a security guard. The rehabilitation counselor indicated that the Veteran told him of extremely limited range of motion and extreme limitations in reaching, lifting, carrying, handling and fingering. M.A.H. related the impression that the Veteran could not perform any work-related activities with the left upper extremity. He noted that most occupations listed in the Dictionary of Occupational Titles required good use of both upper extremities and that an individual who lost the major use of an upper extremity had a very unique and very narrow occupational base. M.A.H. further noted that experience has shown that such an individual's occupational base lies between those represented by light and sedentary exertion of unskilled work. At the sedentary level of unskilled work reasonably full use of both upper extremities is critical, he stated. At the light level of unskilled work the occupational field is limited to a narrow range of jobs which require at least partial use of both upper extremities for reaching, handling, and fingering. A March 2012 VA discharge summary noted that the Veteran had recently moved from the Washington Soldiers Home because he felt it too restrictive and that he got his own apartment. It was also noted that he was a retired painter and merchant marine. As the Veteran had a known head injury and his short-term memory was poor, there were ongoing concerns of his independent living, including risk for falls, an inadequate bowel program, Foley catheter changes, and nutrition. On the other hand, it was noted that the Veteran was very happy to be in his own apartment. An addendum by a physician's assistant noted that the Veteran had improved cognition and problem solving, but there were concerns about his safety judgment as he had refused offers for the installation of safer equipment in his apartment. In an August 2012 decision, VA's Director of the C&P Service felt it would be premature to render a decision whether or not the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disability until a requested addendum to the February 2012 VA examination and medical opinion were associated with the claims file. In September 2012, Dr. M.T.O., a VA staff physician, attempted to clarify the February 2012 VA examination findings. After review of the claims file and the February 2012 VA examination, Dr. M.T.O. opined that total loss of use of the left shoulder was due to the Veteran's service-connected left shoulder disorder. He noted that the Veteran has ankylosis of the left shoulder with zero degrees of flexion and abduction. Further, the VA medical reviewer opined that while the left shoulder disorder alone would significantly impact use of the left arm, it would not cause total loss of use of the left arm and there would still be expected functional use of the left elbow, wrist and hand if the Veteran had not had the neck injury. Therefore, Dr. M.T.O. also opined that it was less likely as not that the Veteran had total loss of use of the left arm solely due to his service-connected left shoulder disorder. He felt that the loss of motor function in the elbow, wrist, and hand would, on a more likely as not basis, be due to the cervical spine injury rather than due to the left shoulder condition. The VA medical reviewer stated that the Veteran had total loss of use of the left arm - with complete loss of movement of the left shoulder joint due to the service-connected shoulder disorder - and loss of effective motor function at the elbow, wrist, and hand due to the December 2009 neck injury. The September 2012 VA reviewer also found that muscle strength testing for the left upper extremity, specifically, the elbow, wrist and finger strength precluded physical labor or sedentary repetitive labor using the left upper extremity. Finally, the VA reviewer opined that the Veteran's service-connected left shoulder disorder with ankylosis precluded the Veteran's ability to conduct physical employment in such activities as two-handed lifting of objects above the waist, pushing objects with the left arm, or reaching with the left arm. He stated that sedentary employment would be impacted by the Veteran's shoulder disorder in the ability to reach forward (i.e., typing) and would require accommodation in the workplace. But the left shoulder disorder would not render the Veteran unable to secure and maintain substantially gainful sedentary employment but would render the Veteran unable to secure and maintain substantially gainful physical employment. In November 2012, the Veteran's attorney submitted a signed affidavit from Dr. D.M.K. This affidavit was in the form of a partial transcript from a SSA hearing in which Dr. D.M.K. was questioned by the Veteran's attorney. In this transcript, Dr. D.M.K. explained that he had been Board-certified in orthopedic surgery for 19 years and that he specialized in joint reconstructions. He stated that he had done many shoulder replacements and rotator cuff repairs. He testified that he performed a left shoulder arthroplasty on the Veteran in the summer of 2006 and then followed the Veteran during his rehabilitation. Dr. D.M.K. said that in 2007 the Veteran had slightly better range of motion than shown in the February 2012 VA examination, but even so he still considered the Veteran's left upper extremity useless for work activities on a permanent basis and thought it nonfunctional. Dr. D.M.K. explained that the Veteran could not initiate movement in his left shoulder strictly with his left shoulder, that he would need to use his right arm to position the left elbow, wrist or hand for tasks, and that the Veteran's left arm would hang from his side and become an impediment to performing any type of work. Dr. D.M.K. also testified that he disagreed with Dr. M.T.O.'s observation that the left shoulder disorder alone did not prevent the Veteran for performing gainful sedentary employment. He said that the left upper extremity is non-functional as a result of the Veteran's service-connected left shoulder disorder. He stated that he knew of no unskilled sedentary jobs a person with only one functioning upper extremity could perform who needed his other extremity for support. In December 2012, the RO renewed its July 2012 proposal and sent a letter to VA's Director of the C&P Service requesting consideration of an extraschedular rating for the Veteran's left shoulder disability under 38 C.F.R. § 3.321(b) and entitlement to a TDIU under 38 C.F.R. § 4.16(b). The proposal included a 60 percent rating for the left shoulder disability pursuant to Diagnostic Code 5051 or, in the alternative, entitlement to a TDIU. In a February 2013 memorandum, the Director of the C&P Service briefly reviewed the medical opinion of Dr. M.T.O. in September 2012 and the history of the Veteran's disability rating for his left shoulder disability before finding that his review of the evidence did not establish that the service-connected left shoulder disorder presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Besides declining to adopt a 60 percent extraschedular rating, the Director found that the evidence did not establish that the Veteran is unemployed and unemployable due to his service-connected left shoulder disorder, thus ruling out a TDIU pursuant to 38 C.F.R. § 4.16(b). In light of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran is not capable of securing and following a substantially gainful occupation as a result of his service-connected left shoulder disability. In this case, given the Veteran's level of impairment as related to lifting and pushing and medical evidence of the loss of use of his left shoulder, he would most definitely have difficulty working in any manual labor position, and, as noted by the vocational rehabilitation counselor, more likely than not have difficulty in many if not most unskilled sedentary positions. The record does not indicate any training or skills for desk-type sedentary employment involving only one arm or any capacity to successfully acquire those skills. Moreover, there is no indication from the record that the Veteran has any previous work experience or training involving sedentary work, except for some training as a bookkeeper in the 1970s. There is no indication in the record that he could resume his most recent past occupation as a security guard. Certainly his work as a security guard would require the ability to use both shoulders to perform such duties as fire weapons or handcuff people. It thus appears that the Veteran has no specific skills to re-enter the work force at a job not involving the use of both shoulders, or to be trained otherwise. The Board additionally finds that the evidence supports the conclusion that the Veteran is essentially precluded from securing substantially gainful employment in even sedentary positions due to his service-connected left shoulder disability. According to the record, the Veteran has little experience or qualifications for any type of sedentary or clerical employment. His previous work experience consisted of working as a security guard and as a painter. Given this background and experience, it is highly unlikely that the Veteran would be able to obtain a sedentary position. Therefore, it appears that jobs are not realistically within the Veteran's physical capabilities. Moore, 1 Vet. App. at 359. In addition to his service-connected disability, the Veteran also suffers from a host of other disorders recited above, the most serious arising out of his broken neck in December 2009. But even apart from these nonservice-related factors, the evidence of record is at least in equipoise as to whether he would most likely be unable to secure or maintain substantially gainful employment due to his service-connected disability alone. The evidence at least is in equipoise regarding whether the Veteran's left shoulder service-connected disability renders him unable to secure or follow a substantially gainful occupation. On the one hand, the September 2012 VA reviewer determined that the Veteran's left shoulder disorder would not render him unable to secure and maintain substantially gainful sedentary employment but would render him unable to secure and maintain substantially gainful physical employment. On the other hand, the opinions of Dr. D.M.K., Dr. E.R.B., and the vocational rehabilitation counselor are found to be competent, very credible, and compelling testimony to the effect that the Veteran was not able to work due to his service-connected left shoulder disability. There can be no doubt that further inquiry could be undertaken with a view towards development of this claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail on the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Resolving all reasonable doubt in the Veteran's favor, the Board will find that it is at least as likely as not that the Veteran's service-connected left shoulder disability precludes the Veteran from obtaining and maintaining substantially gainful employment. The Board is of the opinion that, at minimum, the point of equipoise has been reached in this matter. While there is evidence reflecting that the functional limitations of the Veteran's service-connected disability are not significant enough to interfere with some type of full-time sedentary employment and that any loss of function of the left arm is due to a nonservice-connected neck injury, the Board also believes that the credible evidence of record demonstrates that the Veteran's service-connected left shoulder disability alone is significant enough in its own right to preclude him from obtaining substantially gainful physical or sedentary employment. In view of the long history of the underlying higher rating claim, the Veteran's previous work experience, and the fact the RO twice unsuccessfully sent this case to the Director of the Compensation and Pension Service to consider an extraschedular rating, the Board will grant the Veteran the benefit of the doubt as to whether his left shoulder service-connected disability alone is responsible for his unemployability. Therefore, resolving all doubt in the Veteran's favor due to this equipoise of the evidence of record, the Board further finds that the Veteran's service-connected left shoulder disability renders the Veteran unable to secure or follow a substantially gainful occupation. Thus, based on its review of the relevant evidence, and giving the benefit of the doubt to the Veteran, the Board finds that it is as likely as not that the Veteran is precluded from obtaining substantially gainful employment due to his service-connected disability on an extraschedular basis. Accordingly, entitlement to a TDIU on an extraschedular basis is warranted. (CONTINUED ON THE FOLLOWING PAGE) ORDER Entitlement to a rating in excess of 50 percent for a left shoulder disability is denied. Entitlement to an extraschedular TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs