Citation Nr: 1338513	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  08-10 708	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for a greater tuberosity fracture, left shoulder, from November 21 2006, to August 29, 2010.

2.  Entitlement to a disability rating in excess of 20 percent for a greater tuberosity fracture, left (nondominant) shoulder, since December 1, 2010.  

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel 

INTRODUCTION

The Veteran served on active duty from October 1985 to March 1994.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that granted service connection for a left shoulder fracture and assigned an initial evaluation of 10 percent.  

In January 2012, the Board remanded this claim for additional development and consideration.  In a May 2012 rating decision, the RO assigned a temporary 100 percent disability rating for convalescence pursuant to 38 C.F.R. § 4.30 from August 30, 2010 to November 30, 2010.  Thereafter, the RO assigned a 20 percent rating, effective from December 1, 2012, for the left shoulder fracture.

The Board also finds that it has jurisdiction over a claim seeking entitlement to a TDIU, reasonably raised by the Veteran's written statements during the course of his appeal for a higher rating.  Specifically, in a March 2012 statement, he reported that he has not been able to return to work and cannot find employment as a result of his shoulder disability.  Further, the May 2012 VA examiner noted the Veteran's shoulder disability impacts his ability to work.  Therefore, the claim has been included on the title page.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating).

Therefore, the issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.





FINDINGS OF FACT

1.  The Veteran is right hand dominant; thus his left shoulder is his minor extremity.

2.  From November 21, 2006, to August 29, 2010, the Veteran's left shoulder disability is characterized by a minimally displaced fracture, with incomplete union with essentially full range of motion.  

3.  Since December 1, 2010, the Veteran's left shoulder is characterized by limitation of motion of the arm, midway between side and shoulder level.  

4.  There has never been evidence of ankylosis, or other impairment of the humerus, involving malunion, recurrent dislocation, fibrous union, non-union, or loss of head.


CONCLUSIONS OF LAW

1.  From November 21, 2006, to August 29, 2010, the criteria for an initial disability rating in excess of 10 percent for a left shoulder disability have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.69, 4.71a, Diagnostic Codes 5200-5203 (2013).

2.  Since December 1, 2010, the criteria for a disability rating in excess of 20 percent for a left shoulder disability have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.69, 4.71a, Diagnostic Codes 5200-5203 (2013).








REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veteran's appeal arises from his disagreement with the initial evaluations following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained.  The Veteran's service treatment records and VA and private treatment records have been obtained.  He has not indicated there are any additional records that VA should seek to obtain on his behalf.  

The Veteran was also was provided with VA examinations in February 2007 and March 2012.  The Board finds that the reports of the VA examinations are adequate for evaluation purposes because the examiner conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

Further, in obtaining the March 2012 VA examination and any updated VA treatment records, the Board is satisfied there was compliance with the January 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).




II.  Higher Rating

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013).  The percentage ratings contained 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; 38 C.F.R. §§ 3.321(a), 4.1 (2013).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.

Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69.  Here, as the medical evidence shows that the Veteran is right-hand dominant, his left shoulder is his minor shoulder for rating purposes. 

In any increased rating claim, the Board must discuss whether "staged ratings" are warranted, and if not, why not.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report the nature and severity of his symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a)(West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04. 

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). 

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The provisions of 38 C.F.R. § 4.59 cited above are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011). 

The Veteran, who is right handed, was initially assigned a 10 percent disability rating for a left (minor) shoulder disability, pursuant to DC 5203.  Effective from December 1, 2010, he is in receipt of a 20 percent rating.  He contends that he is entitled to an initial rating great than 10 percent from November 21, 2006, to August 29, 2010, and a rating higher than 20 percent since December 1, 2010.  

There are multiple diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected shoulder disorders under 38 C.F.R. § 4.71a.  These include the following: DC 5200 (for ankylosis of the scapulohumeral articulation); DC 5201 (limitation of motion in the arm); DC 5202 (for rating other impairment of the humerus, involving malunion, recurrent dislocation, fibrous union, non-union, or loss of head); DC 5203 (for rating impairment of the clavicle or scapula).  

The Veteran is right handed, therefore, his left arm is his minor arm.  He is currently evaluated under DC 5203.  A 10 percent evaluation is assigned if there is malunion, or impairment of function of the contiguous joint, or nonunion of the clavicle or scapula without loose movement.  A 20 percent evaluation is assigned if there is nonunion, with loose movement, or dislocation of the clavicle or scapula.  

Under DC 5201 for limitation of motion, a 20 percent evaluation is assigned for limitation of minor arm motion at shoulder level.  When there is limitation of motion midway between the side and shoulder level (between 45 and 90 degrees) a 20 percent rating is again warranted for minor arm limitation of motion.  The maximum evaluation for minor arm limitation of motion is 30 percent and is assigned for arm motion limited to 25 degrees from the side.  See 38 C.F.R. § 4.71a, DC 5201.

In assessing limitation of motion under DC 5201, the criteria for a higher rating may be met by considering limitations of motion in either forward flexion or abduction.  See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003).

	From November 21, 2006 to August 29, 2010 

For the period on appeal from November 21, 2006 to August 29, 2010, the relevant evidence includes a February 2007 VA joints examination, and VA treatment records.  

During the February 2007 VA examination, the Veteran reported pain when lifting anything 20 to 30 pounds.  There was no evidence of locking, subluxation, or dislocating.  The examiner also noted there were no flare-ups.  Additionally, the Veteran was not receiving injections or treatment, and did not require the use of assistive devices or physical therapy.  Upon physical examination, there was no atrophy, hypertrophy, palpable spasm, or tenderness.  Range of motion was noted to be forward flexion to 180 degrees; abduction to 180 degrees; and, external and internal rotation to 90 degrees.  The examiner determined there was no discomfort or difficulty with range of motion testing, and no evidence of effusion, edema, erythema, tenderness, palpable deformities, or instability.  Therefore, additional limitation of function due to flare-ups could not be determined without resort to mere speculation.  In conclusion, the examiner rendered a diagnosis of left shoulder greater tuberosity minimally displaced fracture, with incomplete union.  These conclusions were confirmed by radiographic findings.  

VA treatment records reflect the Veteran's complaints of pain and tenderness in his left shoulder.  Specifically, an August 2007 treatment record showed complaints of numbness in the 4th and 5th digits of the left hand with persistent chronic pain in the left shoulder.  An October 2007 MRI shows additional findings of tendonitis, arthritis, and impingement of the shoulder.  A June 2010 MRI also showed acute pain and dislocation.  There were no other objective findings in the Veteran's VA treatment records, including any range of motion findings.  

Based on this evidence, the Board finds that the preponderance of the evidence shows that a rating in excess of 10 percent for the period from November 21, 2006, to August 29, 2010, is not warranted.  Specifically, there is no evidence of nonunion with loose movement, or dislocation of the clavicle or scapula.  Further, the evidence showed the Veteran had full range of motion in his left shoulder during his February 2007 VA examination.  Therefore, a higher rating pursuant to DC 5201 is not applicable.  

	Since December 1, 2010

The relevant evidence of record for this second period on appeal includes VA treatment records dated through February 2012 and a March 2012 VA examination report.  The Board notes the Veteran underwent surgery on his left shoulder on August 30, 2010.  However, he has been award a temporary 100 percent disability rating based on the need for convalescence pursuant to 38 C.F.R. § 4.30 for the period of August 30, 2010, to November 30, 2010.  

VA treatment records dated through February 2012 show the Veteran's continued complaints of recurrent pain.  A March 2011 MRI reports recurrent left shoulder pain.  A June 2011 orthopedic surgery note found forward flexion to 160 degrees and abduction to 90 degrees, with pain beginning at 90 degrees.  A review of MRI results also showed there were some changes consistent with tendinopathy or tendinosis of the supraspinatus and even somewhat of the infraspinatus.  However, no full thickness rotator cuff tear was noted.  There were no additional objective clinical findings noted in the VA treatment records.  

In compliance with the January 2012 remand directives, the Veteran underwent a VA examination in March 2012.  During range of motion testing, the examiner found flexion to 115 degrees, with no evidence of painful motion; and abduction to 75 degrees, with painful motion beginning at 65 degrees.  The Veteran was able to perform repetitive motion without additional limitation of motion.  However, concerning function loss or impairment, the examiner found there was weakened movement, excess fatigability, pain on movement and deformity.  The Veteran also showed tenderness and guarding of the left shoulder.  The examiner determined there was no evidence of ankylosis or impairment of the humorous.  There was also no evidence of impairments of the clavicle or scapula.  

Based on these findings, the RO increased the Veteran's disability rating to 20 percent for limitation of motion of the arm midway between the side and the shoulder.  However, there is no basis to assign a rating in excess of 20 percent because, even considering the pain and corresponding functional impairment, the disability does not more nearly approximate arm limitation midway between side and shoulder level, or limitation of motion to 25 degrees from side, necessary for rating in excess of 20 percent.  

The above analysis takes into consideration the Deluca factors, particularly limitation of motion due to pain.  Where shown by the evidence, the Veteran's pain does not result in additional functional limitations warranting a schedular disability rating in excess of 20 percent.  See Mitchell, 25 Vet. App. at 33, 43.  An even higher rating is not warranted on this basis, however, because the Veteran's pain, even when considering his own statements, to result in further functional limitations that more nearly approximate the criteria for a higher 30 percent rating.  See Mitchell, 25 Vet. App. at 33, 43. 

The Board has considered whether any other diagnostic codes could alternately provide even higher ratings.  However, there is no evidence of ankylosis of the scapulohumeral articulation; or other impairment of the humerus, involving malunion, recurrent dislocation, fibrous union, non-union, or loss of head, at any point during the appeal period.  Therefore, these Codes are not for application.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5200 and 5202. 

The Board has also considered the surgical scar of the left shoulder in the evaluation of the service-connected disability.  However, according to the June 2011 surgical note and the March 2012 VA examiner, there is no evidence that the left shoulder scar is painful/tender, unstable, and nonlinear, covers an area of 144 square inches or more, or limit function of the cervical spine in any way.  Also, the scar is not deep, or that it also measured at least 6 square inches.  As such, a separate, compensable rating for the residual scar is not appropriate.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801-05 (2013)

Finally, the Board notes that an August 2007 treatment record showed complaints of numbness in the 4th and 5th digits of the left hand.  In March 2012, the Veteran also underwent a neurological examination.  The examiner provided a diagnosis of mild pain associated with impingement of the ulnar nerve, left elbow.  However, the examiner concluded that it is not medically plausible that this condition is in any way casually related to the Veteran's military service.  Instead, the examiner found this condition had its onset long after service and is better explained by a habit of sleeping with elbows bent, as the Veteran admitted to doing.  Further, the Veteran also did not consider this condition due to his left shoulder disability.  Therefore, the examiner stated it is less likely as not that this condition is due to his military service.  

In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his left shoulder disability.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence with respect to the presence of pain and the severity of such during his VA examinations.  He is competent to provide such statements, and the Board finds that the Veteran's statements are credible.  The Veteran's reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned rating.  With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person.  Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight where applicable.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.").

The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b) (1) (2013).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

The Board finds that the rating criteria contemplate the Veteran's left shoulder disability.  The Veteran's disability is manifested by pain and limitation of motion.  These manifestations are contemplated in the applicable rating criteria.  The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation.  Rather, his description of his symptomatology is consistent with the degree of disability addressed by such evaluations.  Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. 


ORDER

For the period of November 21, 2006, to August 29, 2010, entitlement to an initial disability rating in excess of 10 percent for a left shoulder disability is denied.

Since December 1, 2010, entitlement to a disability rating in excess of 20 percent for a left shoulder disability is denied.  


REMAND

As indicated in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  See Rice.  Here, the Veteran is not working and essentially has alleged that he is unemployable due to his left shoulder disability.  Accordingly, the issue of entitlement to a TDIU has been raised in this case

A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16. 

The Veteran is currently rated at 20 percent for his left shoulder disability, 10 percent for tinnitus, and 0 percent for bilateral hearing loss.  His combined disability rating is 30 percent.  Therefore, he does not satisfy schedular criteria set forth in 38 C.F.R. § 4.16(a) (2013).

Although the percentage requirements are not met, entitlement to benefits on an extraschedular basis may also be awarded when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, and consideration is given to the Veteran's background including employment and educational history.  38 C.F.R. §4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  In determining whether unemployability exists, consideration may be given to a 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 (2013). 

Therefore, the Board finds that further development is necessary for a fair adjudication of the Veteran's TDIU claim.  In this regard, upon remand, the AOJ should conduct all appropriate development, to include providing the Veteran with VCAA-compliant notice as to a TDIU, obtaining outstanding treatment records, and obtaining an opinion regarding the effect the Veteran's service-connected disabilities have on his employability.  See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). 

In this regard, the Board notes that unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). 

Finally, on remand, any additional VA treatment records dated after February 2012 should be obtained.  See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history).

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be provided with proper VCAA notice that informs him of the evidence and information necessary to establish entitlement to a TDIU.

2.  Contact the Veteran and his representative and request that they provide sufficient information, and if necessary, authorization, to enable the AOJ to obtain any additional evidence pertinent to the claims on appeal.  After securing the necessary authorizations for release of this information, the AOJ should seek to obtain copies of all records referred to by the Veteran not already of record, specifically from any private physicians or any relevant VA treatment records dated since February 2012 relevant to the claim of entitlement to a TDIU. 

The AOJ must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records.  Any negative response should be in writing and associated with the claims file.

3.  Notify the Veteran that he may submit lay statements from himself and from individuals who have first-hand knowledge, and/or were contemporaneously informed of any occupational impairment caused by his service-connected disabilities.  The Veteran should be provided a reasonable amount of time to submit this lay evidence. 

4.  Afford the Veteran an appropriate VA examination, to be conducted, if possible, by a VA vocational specialist, to ascertain whether it is at least as likely as not that the Veteran's left shoulder, tinnitus, and hearing loss disabilities render him unable to secure or follow a substantially gainful occupation.  The claims folder must be provided to and reviewed by the examiner.

The examiner must opine as to whether it is at least as likely as not that the Veteran's service connected disabilities, alone or in the aggregate, without regard to his age or the impact of any nonservice-connected disabilities, renders him unable to secure or follow a substantially gainful occupation given the individual Veteran's education, training, and work history.  

All findings and conclusions should be set forth in a legible report.

5.  Thereafter, the Veteran's claims should be readjudicated.  If the claim remains denied, the Veteran should be provided with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further appellate review.

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).

This claim 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).




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs