Citation Nr: 1325636 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 06-16 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from September 1979 through September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the RO, which denied the Veteran's claim for a TDIU. In May 2009, the issue was remanded by the Board so that the Veteran could be scheduled for a Board hearing, however, the Veteran failed to appear. To date, VA has not received any request from the Veteran to reschedule his July 2009 Board hearing. In April 2010 and November 2012, the Board remanded the matters on appeal once again for further claims development. FINDING OF FACT 1. The Veteran has completed two years of high school, and has training as a welder. He has occupational experience as a logger. 2. Service connection is in effect for the Veteran for post-operative residuals and dislocation of the left shoulder, rated as 30 percent disabling, and for degenerative joint disease of the right shoulder, secondary to his service-connected left shoulder disability, rated as 20 percent disabling. 3. The Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for the assignment of a TDIU on an extra-schedular basis due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15(b), 4.16, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for a TDIU on an extra-schedular basis herein constitutes a complete grant of the benefit sought on appeal for those issues, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or 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, 3.341, 4.16(a) (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience; however, 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). In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned-pursuant to specifically prescribed procedures-upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2012). 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. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). In this case, service connection is in effect for the Veteran for post-operative residuals and dislocation of the left shoulder, rated as 30 percent disabling, and for degenerative joint disease of the right shoulder, secondary to his service-connected left shoulder disability, rated as 20 percent disabling. Under 38 C.F.R. § 4.16(a), disabilities that arise from a common etiology are treated as one single disability, for purposes determining whether the claim involves one 60 percent disability or one 40 percent disability in combination with others which bring the rating to 70 percent. Accordingly, as the Veteran's service-connected right shoulder disability has been determined as being secondary to his service-connected left shoulder disability, VA must construe his disabilities as arising from common etiology. Accordingly, VA must treat his service-connected disabilities as constituting one single disability that is 50 percent disabling. 38 C.F.R. § 4.25. Based upon the above, the Veteran does not meet the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a). The Board itself cannot assign an extra-schedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). In this case, the Board has already referred the case to the Director of the Compensation and Pension Service (C&P) to determine whether this Veteran's disability picture requires the assignment of an extra-schedular TDIU evaluation. In March 2013, the Director of C&P determined that an extra-schedular TDIU evaluation is not warranted in this case, finding that the Veteran's disability was not so exceptional or unusual as to render the use of the regular rating schedule standards impractical. Therefore, the issue of an extra-schedular TDIU evaluation under 38 C.F.R. § 4.16(b) is no longer before the Board in the first instance, and the Board now has jurisdiction to adjudicate the issue on the merits. See Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009). In that regard, post-service VA treatment records as early as January 1990 indicate that the Veteran was unable to work due to ongoing pain and chronic dislocations of his left shoulder. In an April 1990 record, the Veteran's treating VA physician opined that the Veteran was disabled from working at that time and "may be permanently unemployable" after the Veteran returned to work prematurely after surgery in December 1989 and sustained a re-separation of his left shoulder. In November 1995, a VA physician noted that the Veteran had had three shoulder surgeries. His shoulder was painful and an x-ray showed arthritis. The physician stated that the Veteran was not fit to continue doing the heavy work that he was doing. He needed a more sedentary type of occupation. Otherwise, his shoulder was going to dislocate. In June 1999, on orthopedic follow-up at the VA, the Veteran reported an increase in symptoms. There was limited range of motion, swelling, and tenderness to palpation over the entire left shoulder girdle. There was instability of the shoulder girdle. The impression was chronic recurrent subluxation/dislocation of the left shoulder. In the examiner's opinion, the Veteran was permanently unable to be employed because of chronic subluxation/dislocation of the shoulder. On August 1999 VA examination, the Veteran reported that he had not worked since 1998 and had been self-employed as a logger but could no longer complete that job due to frequent shoulder dislocations. Physical examination lead the examiner to agree with the Veteran's orthopedic doctor that the Veteran was permanently unemployable because of his left shoulder disability. In March 2005, the Veteran stated that his profession was that of logger and tree trimmer, clipping trees and cutting the tops and limbs. He had been logging since the age of 14. The logging gear was heavy and weighed over 50 pounds. He stated that he had been out of work since 2004 due to constant shoulder pain such that he could not even carry wood into his home for a fire. On March 2005 VA examination, the Veteran reported that he could not use his left arm due to consistent dislocations. He was not considered to be a candidate for shoulder surgery because there was not enough functionality in the left shoulder and the surgery would not be beneficial. He had previously undergone vocational rehabilitation as a welder, but found that he could not work in that field either because of his inability to be able to move through the range of motion with his left shoulder. He was independent in his daily activities but did need help with bathing and dressing. Range of motion testing was very limited due to the obvious marked instability of the shoulder and because of the threat of dislocation. A November 2005 VA treatment record reflects that the Veteran had not been able to work because he had recently fallen out of a tree and hurt his neck. He had constant neck and shoulder pain. A March 2006 VA treatment record reiterates the opinion that the Veteran was unemployable due to his shoulder disability and resulting inability to use his arms in his trained occupation as a logger. VA treatment records dated in 2009 reflect the Veteran's report that he was working as a logger and was working harder now than physically when he was 25. He was shimmying up trees and wore a belt to carry his tools. In February 2010, the Veteran was sharpening a chain saw when he had some sort of accident that stopped him from completing the job. His shoulder was still hurting. The pain in his shoulder was constant. He could not reach his back pocket or raise the shoulder 90 degrees. He was working independently in order to feed his family. In May 2010, it was noted that he worked as a logger, but with constant pain. His shoulder would dislocate daily even as he would roll out of bed. A VA examination performed in June 2010 noted that the Veteran was moderately restricted in his ability to bathe and toilet; severely restricted in his ability to perform chores, go shopping, traveling, dressing, grooming, and driving; and completely prevented from participating in recreational activities. He reported that he had not worked as a logger in 5 years. VA treatment records reflect that in February 2011, the Veteran reported that he could no longer log and had totally stopped in the previous year due to pain. He had frequent shoulder dislocations of the left shoulder. His left hand would go numb. He could not grip well. In October 2011, the Veteran stated that he lived in the mountains and had very little education. He was unable to make a living as a logger or cutting fire wood. An April 2012 VA examination report expresses the opinion that the Veteran was to avoid all physical labor, however, remained capable of performing sedentary work such as answering telephones and taking messages. In May 2013, the Veteran stated that he had not worked in two years. He reiterated that he had worked as a logger all of his life but could not continue that employment due to the severity of his shoulder disability. In this case, the Board finds that the Veteran's service-connected disabilities render him unemployable. Throughout the appeal period, his left shoulder disability has prevented him from obtaining or maintaining more than marginal employment. Although the records show that he was working as a logger sporadically, he did so independently and there is no indication of steady employment to meet the definition of more than marginal. Such is the case because the Veteran appeared to work when his left shoulder permitted him to do so, but he has consistently stated that he had not had steady employment and only worked in order to support his family. Thus, it appears that he had sporadic employment, rather than steady employment, due to the severe functional limitations of his left shoulder. Moreover, the Veteran has worked only as a logger since the age of 14. The evidence shows that the Veteran has experienced very frequent left shoulder dislocations and constant pain and limited motion of the left shoulder. Indeed, multiple physicians, including during the appeal period in March 2005, have opined that the Veteran was unemployable due to the nature of his left shoulder disability. These findings suggest that any work that involved physical labor would not be feasible. Additionally, although the Veteran reported at various times that he was able to climb trees to work, it has also been indicated that he suffers from frequent shoulder dislocations and pain and that he works only to attempt to support his family. Such indicates temporary employment, rather than a full-time or even part-time position. The Veteran has undergone multiple left shoulder surgeries in the past, and it has been indicated that further surgery to fuse the shoulder should not be undertaken because of the limited benefit it would provide him. The Board finds that, as has been stated by the 2005 and 2012 VA examiners, any physical work would not be practical for the Veteran. Furthermore, even if the Veteran were to have a sedentary job, the Board finds that his frequent left shoulder dislocations and constant pain would still make it difficult for him to function. For example, on VA examination, it was found that although he could complete activities of daily living, he required assistance and had trouble with such activities as dressing and grooming, and such relatively simple movements would also impair his ability to work in a sedentary position. Additionally, there is no indication that the Veteran has the training or skill level to complete sedentary employment tasks, as he has stated consistently that his training is only in logging. On an unemployability claim form dated in July 1999, he reported having completed only two years of high school. Although he has also completed training in welding, that skill also requires physical labor and he is not capable of completing those demands. The Board acknowledges that the 2012 VA examiner opined that the Veteran was not considered to be unemployable on the basis of his service-connected conditions because sedentary employment was feasible. However, the examiner did not provide a rationale for why sedentary employment was feasible, given the well-documented limitations that the Veteran had due to his left shoulder. The same is true with regard to the March 2013 opinion provided by the Director of Compensation and Pension Services. Although the Director found that the Veteran did not meet the criteria for a TDIU on an extraschedular basis, no rationale was provided. The Director did not discuss the Veteran's particular circumstances or the multiple positive opinions stating that the Veteran's left shoulder disability made him unemployable. Accordingly, the Board also places lesser probative value on that opinion in light of the many positive opinions provided by both VA examiners and treating physicians through the years supporting the Veteran's contentions that due to his service-connected disabilities, he cannot work in the employment for which he has been trained. Thus, given the Veteran's educational and occupational history and the constraints noted above, and resolving all doubt in favor of the Veteran, the weight of the competent, probative evidence indicates that the Veteran as likely as not has been prevented from obtaining and maintaining substantially gainful employment as a result of his service-connected disability. In summary, the Board finds that the Veteran has met the criteria for a TDIU on an extra-schedular basis, and his service-connected disability renders him unemployable. Accordingly, reasonable doubt is resolved in favor of the Veteran, and entitlement to a TDIU is granted. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A TDIU is granted on an extra-scedular basis. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs