Citation Nr: 1334701 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-06 608A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a right shoulder disorder, as secondary to a left knee disability. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to November 1984. This appeal comes before the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, and the Board. FINDINGS OF FACT 1. The Veteran's service-connected disabilities do not meet the schedular criteria for entitlement to a total disability rating based on individual unemployability and are not shown to prevent the Veteran from obtaining or retaining substantially gainful employment. 2. The Veteran's current right shoulder disorder is unrelated to service and is not secondary to the service-connected left knee disability. CONCLUSIONS OF LAW 1. A total disability rating for compensation purposes based on individual unemployability is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). 2. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). May 2009 and August 2012 letters advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The letters provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. The Veteran's claims were subsequently readjudicated in a May 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Accordingly, the RO effectively satisfied the notice requirements with respect to the issues on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. 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.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained VA treatment records and VA examination reports, assisted the Veteran in obtaining evidence, and afforded him the opportunity to present testimony, statements, and evidence. All known, identified, and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file, and the Veteran has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is outstanding email cited by the October 2010 VA examiner. The Board finds the absence of this email does not suggest there are other outstanding relevant treatment records: the record indicates that all relevant treatment records, to include those dated contemporaneously with the October 2010 VA examination, have been requested and associated with the file. Furthermore, the Board finds the absence of the email is not prejudicial because the October 2010 VA examiner is competent to report the contents of the email and the Board finds the examiner's report is credible. VA has afforded the Veteran VA examinations with respect to his claim for total disability rating based on individual unemployability and his claim for service connection. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). With respect to the claim for a total disability rating based on individual unemployability, the medical examinations and associated findings and opinions as to unemployability are adequate, as each was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and occupational experience, and schooling, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303 (2007). With respect to the claim for service connection, the medical examinations and associated findings and opinions are adequate, as each is based upon a complete review of the evidence of record, consideration of the Veteran's lay statement, and clinical examination of the Veteran and is supported by a rationale. Id. at 311. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009) Service Connection Service connection may be established for disability resulting from personal injury incurred or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The Veteran contends that he has a right shoulder disorder as the result of his service-connected left knee disability. Specifically, he asserts that the right shoulder disorder is the result of having to use a cane for his left knee disability or from injuries sustained in falls caused by his left knee disability. He has not contended that the right shoulder disorder began in service or is otherwise related to service. Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." In addition, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. A February 2007 private treatment record reflects the Veteran's history of pain, numbness, and tingling into the right arm, elbow, and forearm, which the Veteran believed was due to walking with a cane. A March 2007 private treatment record reflects the Veteran's history that he had not been using his cane as much, which had reduced his right shoulder pain. A May 2007 treatment record reflects the Veteran's history of shoulder pain with raising up his arms. Subsequent records reflect persistent histories of right shoulder pain, and a February 2009 magnetic resonance imaging (MRI) report indicates that the Veteran had hypertrophic degenerative changes of the acromioclavicular (AC) joint "likely" causing impingement on the rotator cuff, and a tear of the supraspinatus and infraspinatus tendons. May 2009 VA treatment records reveal the Veteran's history of difficulty raising his right arm beyond 90 degrees for approximately one year, since sustaining a fall. The Veteran underwent a right shoulder acromioplasty and acromioclavicular joint resection in May 2009. An October 2010 VA examination record reflects the Veteran's history that he believed he had a right shoulder disorder as a result of using a cane for his service-connected left knee disability. The Veteran reported that he started using a cane five or six years earlier and used it every day. He also reported that he had fallen a few times because of his knees and injured his right shoulder. The examiner noted that an MRI had showed possible tears, but the surgery note indicated that the surgery only revealed tendonosis, and no tear of the tendons, as well as extensive arthritic changes in the AC joint. The Veteran reported doing "very well" since the surgery, though he did still have occasional aching. The examiner diagnosed status-post right acromioplasty for AC joint osteoarthritis with no evidence of rotator cuff tear. The examiner noted that the records showed a prescription of a cane in May 2003, occasional cane use in 2004, and fairly regular cane use in February 2006. The examiner reported contact with the orthopedic surgeon who performed the May 2009 surgery, who reported his opinion that it "would be less likely as not that the right shoulder AC joint would be related to the cane use and more likely related to the aging process." In conclusion, it was the examiner's opinion that the right shoulder condition was "less than likely as not" a result of cane use. A July 2011 VA treatment record reflects the Veteran's history of falling on the right shoulder/arm. The record reflects diagnoses of degenerative joint disease/ probable rotator cuff injury. An August 2011 VA treatment record reflects the Veteran's history of having "little difficulty" with the right arm or shoulder until two weeks earlier when he fell on it after his leg gave out. The Veteran reported that his shoulder popped, and he had temporary tingling and numbness that went away after a couple of minutes. The Veteran added that the discomfort had persisted. An April 2013 VA examination record reflects the examiner's determination of a "normal" right shoulder. The record reveals that x-ray images dated in 2011 and 2013 revealed normal right shoulder, and the examination revealed no limitation of motion. The examiner found it was "less likely than not" that the right shoulder disorder was the result of or aggravated by the left knee disability. The examiner explained that there was "no medical evidence in the literature to support a knee problem (weight-bearing joint) is linked to a shoulder problem (a non weight-bearing joint)." The examiner added that examination and x-ray images were normal, although x-ray images revealed left shoulder AC joint degenerative joint disease. The examiner found the evidence suggested old, chronic changes "most likely" from normal aging process. Service connection is not warranted for a right shoulder disorder. The evidence of record does not indicate, nor does the Veteran claim, that the right shoulder disorder began during his active duty service. Additionally, the medical evidence of record and the Veteran's competent lay statements do not indicate that the disorder began until many years after the Veteran's discharge from the military. Thus, service connection on a direct or presumptive basis is not warranted and need not be discussed further. Additionally, the Board finds that the preponderance of the evidence does not show that the Veteran's right shoulder disorder is related to a service-connected disability. See 38 C.F.R. § 3.310. The evidence does not contain any competent evidence linking the right shoulder disorder to the service-connected left knee disability, through either cause or aggravation. Although the Veteran claims that he injured the shoulder as a result of the left knee disability, the objective evidence of record does not indicate that these injuries either caused or permanently aggravated the right shoulder disorder. In that regard, although the record documents injury to the right shoulder as the result of left knee instability in July 2011, subsequent medical records do not reveal any new findings indicative of a change in the prior right shoulder disorder and a VA examiner subsequently provided a probative opinion that the current right shoulder disorder was not caused or aggravated by the left knee disability, to include any associated falls. Although the Veteran's statements are competent evidence that he has right shoulder symptoms with use of the cane, the Board finds the Veteran's statements as to existence of a relationship between a right shoulder disorder and the left knee disability are not competent evidence to establish service connection on a secondary basis. The question of whether the Veteran's right shoulder disorder is secondary to the left shoulder disability, to include as due to falls or use of a cane, does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide a competent opinion that a current right shoulder disorder was caused or aggravated by the left knee disability. Accordingly, the Board finds that these statements as to medical causation are not competent evidence to establish service connection on a secondary basis. See Davidson, 581 F.3d at 1316; see also Jandreau, 492 F.3d at 1377. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a right shoulder disorder. Accordingly, the benefit of the doubt doctrine is not for application. Gilbert, 1 Vet. App. at 54; Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Total Disability Rating Based on Individual Unemployability (TDIU) TDIU is granted when the evidence shows that a veteran is precluded, by reason of his service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment, i.e. work which is more than marginal, that permits the individual to earn a "living wage," 38 C.F.R. § 4.16(b) (2013); Moore v. Derwinski, 1 Vet. App. 356 (1991), consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran maintains that he is unable to work due to his service-connected disabilities. Throughout the appeal, service connection has been in effect for a lumbar spine disability, rated 40 percent disabling; a left knee disability, rated as 30 percent disabling; and external hemorrhoids and pilondial cyst, each rated noncompensably disabling. With the exception of temporary total ratings from January 29, 2007, to March 1, 2007, the combined evaluation for the Veteran's service-connected disorders is 60 percent. Therefore, the Veteran's service-connected disorders have not met the schedular criteria for TDIU. Where these percentage requirements are not met, entitlement to 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, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the Board must consider whether the evidence of record warrants referral to the Director of Compensation and Pension Service for entitlement to a total rating for compensation purposes based upon individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b), where a veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The record indicates that the Veteran worked full-time until approximately June 24, 2011, and part-time thereafter until November 11, 2011. The Board finds the only applicable period of unemployment dates from November 11, 2011, because the record does not suggest that the Veteran's prior employment was not substantially gainful. Although the Veteran only worked part-time as of August 9, 2011, the evidence, including statements from the Veteran and SSA records, does not indicate that this employment was "marginal." The Board acknowledges that a SSA judge found any employment after June 24, 2011, "did not rise to the level of substantial gainful activity." The Board finds this determination is not probative, however, because the SSA judge did not provide a rationale for the determination, and the determination is not supported by the record. The earnings records submitted by the Veteran reveals receipt of nonmarginal wages after June 24, 2011, and there is no evidence, to include statement from the Veteran, which suggests the part-time employment was "marginal." 38 C.F.R. § 4.16(a). In the absence of probative evidence that the part-time work was marginal, the Board finds the Veteran had substantially gainful employment until November 11, 2011. Thus, the issue is whether the Veteran was "unemployable" at any time after November 11, 2011. The Veteran's SSA records reveal that he was awarded disability benefits for osteoarthrosis and allied disorders and disorders of back beginning on June 24, 2011. The records reflect a physician's determination that the Veteran's allegations regarding symptoms appeared "partially credible," that the severity of the symptoms was not fully supported, and that the Veteran was capable of performing work activities. The records also reflect a SSA judge's determination that "considering the claimant's age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant could perform." The SSA judge noted that the Veteran had "residual functional capacity to perform sedentary work" with limitations, including that the Veteran would have to stand or walk less than two hours in an eight hour workday, would have to alternate positions at will and use a cane, and could not crouch, crawl, stoop, kneel, climb, balance, or overhead reach. The judge further noted that the Veteran was "closely approaching advanced age" and that the Veteran "had at least a high school education." A September 2012 VA examination record indicates that the Veteran had a two-year vocational degree as an automotive mechanic and a bachelor's degree in e-commerce with a minor in computer science. The record adds that the Veteran worked for an electronic company for six years inspecting circuit boards before leaving the position after moving "for family reasons." The record notes that the Veteran voiced no concerns with daily activities. After examination and review of the record, the examiner determined that the Veteran's service-connected disabilities would not preclude him from gainful employment. The examiner explained that the determination was based on "the fact this veteran has no disruption with daily activities, has two degrees, is still able to drive a car, and has no functional disabilities with any of his upper extremities." The examiner found the service-connected disabilities would allow the Veteran to perform gainful sedentary employment. A January 2013 VA examiner determined that the Veteran's service connected conditions were "less likely than not rendering him unable to secure and maintain substantially gainful employment." The examiner explained that the Veteran had had no disruption with daily activity and functional limitation of the upper extremities, was able to drive a car, and cared for his grandchildren during the day. The examiner noted that the Veteran had two degrees and had left his previous job because his daughter needed help with her children. The examiner added that the Veteran sat comfortably in a chair with minimal limitation on rising from his chair, appeared in no acute distress secondary to his knee or back, and reported no residuals of the hemorrhoids and pilondial cysts. The examiner noted no inhibition due to medication. The examiner further noted that although the Veteran walked with a cane and might have difficulty walking further than one block continuously, there was no evidence of significant pain. The examiner found the available evidence suggested that the Veteran would function in sedentary employment. A March 2013 VA examiner's opinion reveals the determination that "based upon a review of all records, it appears sedentary employment IS consistent with [the Veteran's] education and occupational experiencing." (Emphasis in original). The physician explained that the determination was based on the medical records, commentaries from recent examination, other clinical entries, and the Veteran's educational history. An April 2013 VA treatment record reveals that the Veteran asked for a letter describing his limitations and chronic problems. The record notes that a physician's assistant reviewed the March 2013 VA examination "and other notes" and suggested that the Veteran "resist the desire/wish to be fully disabled and be more active -seek employment, volunteer, help his neighbors." The Board finds the Veteran's service-connected disabilities have not been shown to preclude employment consistent with his education and occupational experience. The probative evidence does not show that the Veteran can no longer work in a position in his employment field or another sedentary field. The evidence indicates that the Veteran stopped working for nonmedical reasons and is able to care for a grandchild. Moreover, three VA examiners and an SSA examiner determined, after examination of the Veteran, that the Veteran maintained the ability to secure and maintain gainful employment in a sedentary position. The Board finds these opinions are probative as they are supported by rationale which is consistent with the record. With regard to the SSA decision, the fact that SSA has ruled that a veteran is disabled under SSA law does not establish that veteran is permanently and totally disabled for purposes according to VA laws and regulations. The criteria for obtaining disability benefits through the SSA are different from those for establishing entitlement to total disability compensation benefits through VA. See Roberts v. Derwinski, 2 Vet. App. 387 (1992); see also Collier v. Derwinski, 1 Vet. App. 413 (1991). To this extent, the record documents that the award of SSA benefits was based, at least in part, on the Veteran's advancing age, which is precluded from consideration by VA in determining entitlement to a TDIU. Based on the judge's reliance of age and failure to provide a rationale, the Board finds the SSA decision is not probative evidence of unemployability under VA regulations. As the competent medical evidence of record does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, a total rating for compensation purposes based upon individual unemployability is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim for TDIU, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right shoulder disorder is denied. TDIU is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs