Citation Nr: 1325234 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 01-07 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for residuals of a fracture of the left proximal humerus, currently rated as 20 percent disabling. 2. Entitlement to higher initial ratings for peripheral neuropathy of the left upper extremity, rated as 20 percent disabling from September 11, 2000 to May 22, 2008, and as 30 percent disabling since. 3. Entitlement to an effective date earlier than September 11, 2000 for the award of service connection for peripheral neuropathy of the left upper extremity. 4. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to November 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2000 and March 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In the October 2000 rating decision, the RO denied the Veteran's claim for an increased disability rating for residuals of a fracture of the left proximal humerus. In a February 2003 decision, the Board denied the Veteran's claim for an increased disability rating for residuals of a fracture of the left proximal humerus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2003, the Court vacated the Board's decision and remanded the claim for readjudication in compliance with terms specified in a September 2003 Joint Motion for Remand (Joint Motion). The Board, in turn, remanded the Veteran's claim for further development In July 2004. The Veteran requested a Board hearing before a Veteran's Law Judge in Washington, DC. In June 2005, he withdrew his hearing request. See 38 C.F.R. § 20.704(e) (2012). The Board again remanded the Veteran's claim for further evidentiary development in July 2005. In March 2010, the Board denied the Veteran's claim for an increased rating for residuals of a fracture of the left proximal humerus and granted an increased rating for peripheral neuropathy of the left upper extremity. The Veteran appealed that portion of the Board's decision that denied an increased rating for residuals of the fracture of the left proximal humerus. In the March 2010 rating decision, the RO implemented Board decision that granted an initial 20 percent disability rating for left ulnar neuropathy prior to May 23, 2008, and a 30 percent disability rating thereafter. In a November 2010 Order, the Court vacated the Board's March 2010 decision that denied an increased rating for residuals of the fracture of the proximal humerus, and remanded the case for readjudication in compliance with instructions specified in a November 2010 Joint Motion. The Joint Motion specified that the Veteran should be afforded an adequate VA examination to properly consider any functional limitations pursuant to the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). The Joint Motion additionally instructed the Board to adjudicate whether a TDIU claim was raised by the record pursuant to the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). In June 2011, the Board found that a claim of entitlement to a TDIU had been raised by the record under Rice; and, in an effort to comply with the terms of the November 2010 Joint Motion, the Board remanded the Veteran's claims of entitlement to an increased rating for residuals of a fracture of the left proximal humerus and entitlement to a TDIU for further evidentiary development. In that decision, the Board also instructed that the RO refer the TDIU claim to VA's Director of Compensation and Pension (C&P) Services for adjudication in the event that the Veteran did not meet the disability rating percentage requirements for a TDIU as outlined in 38 C.F.R. § 4.16(b). In May 2013, the Director of (C&P) Services denied an award of TDIU on an extraschedular basis. The issues of entitlement to increased ratings for residuals of a fracture of the left proximal humerus; higher initial ratings for peripheral neuropathy of the left upper extremity, and entitlement to an earlier effective date for the award of service connection for peripheral neuropathy of the left upper extremity must be REMANDED to the Department of Veterans Affairs Regional Office. Those issues are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. The Veteran last worked full-time on May 1, 2008. 2. A May 2013 decision by the Director of C&P Services denied entitlement to a TDIU on an extraschedular basis. 3. The evidence of record indicates that the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid a claimant in substantiating his or her claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his TDIU claim. I. Entitlement to a TDIU TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b) (2012). The Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to insure that all cases where there is evidence of unemployability due to service connected conditions are referred to the Director for initial consideration under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The Board has jurisdiction to review determinations by the Director. Anderson v. Principi, 18 Vet. App. 371 (2004). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). II. Analysis In the instant case, service connection is in effect for a fracture of the left proximal humerus, currently rated as 20 percent disabling, effective March 14, 1979; and for left ulnar neuropathy associated with the service-connected left proximal humerus fracture, initially rated as 20 percent disabling, effective September 11, 2000, and rated as 30 percent disabling since May 23, 2008. Thus, the Veteran has not meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). Pursuant to the Board's June 2011 remand directives, the RO referred the issue of entitlement to a TDIU on an extraschedular basis to the Director of C&P Services. In May 2013, the Director found that the totality of the evidence did not show that the Veteran would be unemployable in all environments, including a sedentary one, due solely to his service-connected disabilities. Accordingly, the Director denied an award of TDIU on an extraschedular basis. Because the issue of a TDIU on an extraschedular basis has been considered by the C&P Services Director, the Board may now review the denial of the extraschedular TDIU. Bowling, 15 Vet. App. 1. Turning to the evidence of record, the Veteran reported in his June 2011 TDIU application that he had last worked full-time on May 1, 2008. He indicated that he had been employed as a mail handler since June 1979, and that he had not lost any time due to illness. The record reflects that he has a high school education. In June 2012, the Veteran's former employer, the U.S. Post Office in Scranton, Pennsylvania, provided information regarding the Veteran's employment. Notably, the Veteran was not noted to have lost time during the 12-month period preceding his last date of employment due to disability. Additionally, no concessions were noted to have been made to the Veteran by reason of age or disability. His former employer indicated that he last worked on May 1, 2008, and that the reason for termination was his eligibility for immediate retirement. The medical evidence of record shows that the Veteran has had considerable limitations on his employment due to his shoulder disability, even while still employed. During a January 2006 VA examination, conducted while the Veteran was still employed, he reported that he was unable to reach over his head or behind his back. He reported working as a mail handler and having difficulty lifting heavy items. During his May 2008 VA examination, the Veteran reported that he had not been able to do any work at or above shoulder level since the time of his in-service injury. He reported that the work he did for the U.S. Postal Service was different from what he would have done had he not had a shoulder problem. He indicated that he retired from his employment one-month earlier. He further reported that he did not miss work because of his shoulder because he had a family to feed. The examiner noted that the Veteran's shoulder disability caused limitation in his life; for example he had difficulty washing his hair. A June 2008 consultation report attached to the VA examination report showed that the Veteran had a history of median and ulnar nerve traumatic neuropathy from his left shoulder injury. Neurological testing revealed an impression of abnormal nerve conduction study showing C6 to T1 level cervical radiculopathy on the left side. Bilateral carpal tunnel syndrome was present on the left and right side. Clinical correlation was indicated. A June 2008 addendum to that report indicated that a nerve conduction electromyography (EMG) showed that the Veteran apparently had unrelated abnormalities, such as bilateral carpal tunnel syndrome (partial median nerve injury) and left cervical C6-T1 radiculopathy which did not make sense with the fall where the Veteran injured and fractured his left humerus. On clinical grounds he had weakness of muscles of left arm abduction and shoulder elevation which suggested partial injury to nerves innervating deltoid and supraspinatus muscles, such as the axillary and suprascapular nerves on the left side. The partial injury to the last two nerves was noted to be probably related to his fall and subsequent muscle weakness on the left side. In April 2009, the same practitioner noted that the Veteran had neurological residuals due to his left shoulder injury. All nerves noted were found to have incomplete paralysis and neuralgia. The suprascapular and axillary nerve involvement was noted to cause weakness of shoulder abduction, and the median and ulnar nerve involvement was noted to be wholly sensory. Suprascapular and axillary nerve involvement was moderate, while the involvement of the remaining nerves was mild. Finally, the practitioner concluded that the suprascapular and axillary nerve involvement was caused by or a result of the Veteran's service-connected injury, while the median and ulnar nerve involvement was less likely than not caused by his service-connected injury. In a July 2009 addendum, the same clinician corrected the April 2009 addendum, and indicated that the Veteran's median and ulnar nerve injuries were as likely as not caused by his service-connected left shoulder injury. During an October 2011 VA examination, the Veteran was found to have mild left median nerve involvement, and moderate ulnar nerve paralysis. He had muscle strength deficiency, only able to do active motion against gravity. The examiner opined that the Veteran was at least as likely as not precluded from gainful employment for which his education and occupational experience would otherwise qualify him as a result of his left ulnar neuropathy and left proximal humerus fracture, due to the persistent left arm pain and difficulty lifting. In an April 2013 addendum, the examiner again opined that the Veteran's service-connected disabilities at least as likely as not precluded gainful employment for which he would be otherwise qualified. The examiner reasoned that the Veteran had persistent left arm pain, difficulty lifting, and weakness in the left upper extremity. The examiner also noted that the positive neurological examination and EMG. Based on the findings presented above, the Board finds that the evidence regarding whether the Veteran's combined service-connected disabilities preclude him from securing or following substantially gainful employment for which his education and occupational experience would otherwise qualify him is at least in equipoise. In such cases, the benefit of the doubt must go to the Veteran. Therefore, the TDIU claim must prevail. 38 U.S.C.A. § 5107 (West 2002). In reaching this determination, the Board has relied heavily on the medical evidence of record, including most especially the October 2011 and April 2013 VA examiner's findings. Although the VA examiner did not provide an exceptionally well-reasoned opinion regarding why the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, the examiner considered the Veteran's education and work experience, and the current severity of his service-connected disabilities, and based on this evidence rendered the opinion that his disabilities would preclude him from securing or following such substantially gainful employment. Although the Director of C&P Services denied the TDIU claim; that decision was premised on discounting the only recent medical opinion as to the Veteran's employability. The most recent VA examiner was; however, fully aware of the Veteran's medical and employment history, and gave a competent opinion that he was no longer employable, based on his evaluation and the evidence of record. The Director also indicated that an EMG study concluded that the majority of the Veteran's problems were not related to his service-connected injury. Ultimately; however it was concluded that almost all of the neurologic impairment was related to the service connected disability. Overall, the Board has resolved all doubt in favor of the Veteran and has determined that the criteria for entitlement to TDIU were met as of May 1, 2008, the factually undisputable date the Veteran last worked full-time. See 38 C.F.R. § 3.400(o) (2012) (in cases involving increases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to a TDIU is granted. REMAND The Veteran was afforded a new VA examination to assess the severity of his service-connected left shoulder disability in October 2011. The examiner indicated that the Veteran reported flare-ups that impacted the function of his left shoulder after excessive activity, and the examiner noted that functional limitations included weakened movement; but contrary to DeLuca, the examiner did not report the degree of any additional limitation of motion due to these factors. Moreover, while the VA examiner indicated that the Veteran had an impairment of the clavicle and scapula, the examiner did not further indicate the area affected or the severity of such impairment. Accordingly, a new VA examination is necessary to resolve the discrepancies in the October 2011 VA examination report. Finally following implementation of the Board's March 2010 grant of increased ratings for this disability in the March 2010 rating decision, the Veteran filed a notice of disagreement with the assigned ratings and the effective date for service connection. The Veteran submitted a notice of disagreement with these decisions, but a statement of the case has not been issued. The Court has directed that in these circumstances, the Board must remand the issues to the AOJ for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his service connected left shoulder disability. The claims file and a complete copy of this REMAND should be reviewed in association with the examination. The VA examination report or addendum should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should: a) Report the Veteran's ranges of motion in the left shoulder in degrees. b) Determine whether the left shoulder disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain; or during flare-ups. c) Determine whether the Veteran has favorable or unfavorable ankylosis of the scapulohumeral articulation of the left shoulder. d) Determine whether there is dislocation, nonunion, with or without loose movement, or malunion of the clavicle or scapula; and determine whether there is any malunion (including whether there is marked or moderate deformity), recurrent dislocation (with frequent or infrequent episodes and guarding of arm movements), fibrous union, nonunion (false flail joint), or loss of head of (flail shoulder) of the humerus. The examiner must provide reasons for all opinions. 2. Issue a statement of the case with respect to the issues of entitlement to higher initial ratings for peripheral neuropathy of the left upper extremity, and entitlement to an earlier effective date for the award service connection for that disability. These issues should not be certified to the Board, unless the Veteran perfects an appeal by submitting an adequate substantive appeal on those issues, then the claims should be returned to the Board for further appellate procedure. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. 4. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs