Citation Nr: 1421628	
Decision Date: 05/13/14    Archive Date: 05/21/14

DOCKET NO.  10-01 995

	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Affairs


ATTORNEY FOR THE BOARD

L. Crohe, Counsel




INTRODUCTION

The Veteran had active military duty from August 1989 to August 1993.  He also had active duty in the United States Navy Reserve from January 2002 to February 2003 and from October 2005 to October 2006. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted service connection for left shoulder strain status post arthroscopic repair of anterior, inferior labral tear and assigned a 20 percent disability rating, effective October 23, 2006.  The Veteran perfected his appeal in regards to the assigned disability rating and in a May 2011, the Board denied entitlement to a disability rating in excess of 20 percent for the left shoulder disability.  In this regard, the United States Court of Appeals for Veterans Claims (Court) holds that a TDIU claim is part and parcel of an initial or increased rating claim when raised by the record.  Mayhue v. Shinseki, 24 Vet. App. 273 (2011); Rice v. Shinseki, 22 Vet. App. 447 (2009).  In May 2011, the Board determined that the claim for TDIU was reasonably raised by the record with respect to the issue of entitlement to an increased rating for the left shoulder disability, and remanded the matter for further evidentiary and procedural development.  As discussed below, the Board finds that there was substantial compliance with its remand directives; thus, it may proceed with a decision at this time.


FINDINGS OF FACT

1. Service-connection is in effect left shoulder strain status post arthroscopic repair of anterior, inferior labral tear, evaluated as 20 percent disability rating, effective October 23, 2006. 

2.  The Veteran's case was referred to the Director of Compensation and Pension Service for extra-schedular consideration of entitlement to a TDIU, under 38 C.F.R. § 4.16(b)

3. The Veteran has experience in maintenance and as a longshoreman; he underwent vocational rehabilitation and received a Computer Applications Specialist Certification and a diploma in Business Administrative Technology from Altamaha Technical College in January 29, 2011; he studied business administration and needed two more courses for a degree; and he continued to work as a longshoreman.  

4. The most probative evidence reflects that the Veteran's service-connected left shoulder disability is not of such severity as to preclude substantially gainful employment.


CONCLUSION OF LAW

The criteria for the assignment of a total disability rating based on individual unemployability are not met, including on an extraschedular basis.  38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.19 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in the development of a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The Board finds that letters dated in May and June 2012 satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Specifically, the letters informed the Veteran of what evidence was necessary to substantiate his claim for TDIU, to include on an extra-schedular basis.  The letters notified the Veteran of his and VA's respective duties for obtaining evidence. 

The duty to notify was satisfied subsequent to the initial AOJ decision.  The Board finds that this error was not prejudicial as the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, was provided with sufficient time to respond, and the AOJ readjudicated the case by way of the January 2013 supplemental statement of the case after the notice was provided.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  Thus, the Board finds that the May and June 2012 letters satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The claims file contains the Veteran's service treatment records as well as VA and private treatment records.

Further, in October 2007 and 2009, VA examinations were performed, and the reports are of record.  

In addition, as noted in the Introduction, this claim was previously remanded in May 2011 to obtain the Veteran's VA vocational and rehabilitation record and an opinion from a VA examiner who previously examined the Veteran to determine the impact of the Veteran's service connected left shoulder disability on his ability to obtain and maintain gainful employment.  The Veteran's vocational and rehabilitation record was obtained and associated with the claims file.  An August 2011 VA opinion answered the questions raised by the Board and was supported by an adequate explanation.  Additionally, the Board requested consideration as to whether the Veteran's claims should be referred to the Director of Compensation and Pension Service for an opinion pursuant to 38 C.F.R. § 4.16.  In January 2013, a Decision Review Officer (DRO) submitted a Memorandum regarding the Veteran's case to the VA Director of Compensation and Pension Service for extra-schedular consideration of his TDIU claim.  In July 2013, the VA Director of Compensation Service reviewed the Veteran's clam's folder and vocational rehabilitation records and provided an opinion.


Accordingly, the Board finds that there has been substantial compliance with the May 2011 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board finds the duties to notify and assist have been met.

II. Legal Criteria & Analysis

Entitlement to a total rating for compensation purposes based upon individual unemployability (TDIU) is warranted when a Veteran's service-connected disability or disabilities result in impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2013).

TDIU may be awarded when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

Service connection is in effect for is in effect left shoulder strain status post arthroscopic repair of anterior, inferior labral tear, evaluated as 20 percent disability rating.  Accordingly, the Veteran's service-connected disabilities do not meet the schedular percentage requirements.  Not having met the schedular requirements, the only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extra-schedular evaluation under 38 C.F.R. § 4.16(b).

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. Id.  Therefore, at the RO level, rating boards are to submit to the Director, Compensation and Pension Service (Director), for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  The RO is to include in its submission a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and factors having a bearing on the issue.  38 C.F.R. § 4.16(b).

The Board itself cannot assign an extra-schedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  However, the Board can adjudicate whether to refer a case to the Director for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record.  Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008).  If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a) , 7104(a) (2013) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board.").

The RO referred the issue of TDIU to the Director for extraschedular consideration, who concluded in July 2013 correspondence that TDIU under 38 C.F.R. § 4.16(b) was not warranted.  While the RO denied the claim based on this determination, it is not binding on the Board.  Fisher v. Brown, 4 Vet. App. 405 (1993). 

Where, as in this case, a veteran fails to meet the applicable percentage standards, an extra-schedular rating is for consideration where the veteran is found unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b) (2013).  Individual unemployability must be determined without regard to any non-service connected disabilities or a Veteran's advancing age.  38 C.F.R. §§ 3.341(a), 4.19 (2013); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor.  38 C.F.R. § 4.3 (2013).

While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides."

Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income.  In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. 

The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).

The Veteran claims that he is unemployable as a result of his sole service-connected disability.  He claims that almost all of his past civilian work has been in maintenance (since 1995), including working on heating and air conditioning and much of the work is overhead.  He reported that he was in Vocational Rehabilitation because he could no longer do this type of work.  See Janaury 2010 Substantive Appeal.  The Veteran reported that his shoulder disability greatly hindered his ability to perform his abilities and capacity to work.  See October 2008 Notice of Disagreement.  

By way of history, the Veteran retired from further military duty in 2006 due to his left shoulder injury.  

At the October 2007 VA examination, the examiner noted that the Veteran was right-hand dominant.  The Veteran stated that he could not do any heavy lifting or overhead work with his left arm.  He also stated that he is limited in his ability to work around the house and yard and had and had difficulty carrying his two younger children who were only 2 and 4 years old. 

In an August 2008 statement in support of claim, T.H. indicated that the Veteran could not lift greater than 20 pounds or perform overhead work as heavy laborer.  The Veteran reported that he believed that T.H. was either a physician or a physician assistant.  See January 2010 Substantive Appeal.

At the October 2009 examination, the Veteran stated that pain in the left shoulder flares daily and that he uses a sling when it hurts so bad that he can hardly stand it. He stated that he cannot do simple things like getting a container of milk out of the refrigerator, play sports, or do yard work.  He stated that he cannot lie on his left side at night and the pain in the left shoulder is increased with his arm hanging at the side.  He was unemployed and he told the examiner that his left shoulder interferes with him getting a job.  The Veteran stated that he went to vocational rehabilitation and they decided that he needed to do a job with typing.  He stated "I can't do that but a little while before it makes my left shoulder hurt more."

A review of the Veteran's Vocational Rehabilitation folder included a copy of his resume which showed that the Veteran last worked as in maintenance for Gateway Behavioral Health, the last date of leaving this employment was unknown.  He reported that he was available for full-time permanent work.   During Vocational Rehabilitation, he received a Computer Applications Specialist Certificate and a diploma from Altamaha Technical College in Business Administrative Technology in January 29, 2011.  His overall grade point average (GPA) was 3.21 for 174 hours.  Records from his counselor reveal that while seeking employment, he worked as a longshoreman to assist with living expenses.  An April 2011 note revealed that he decided not to return to training and was continuing to work as a longshoreman and was picking up more hours.  He also continued to apply for internship positions.   A December 2011 VA treatment record noted that he relied mainly on his wife's employment as a means of support.  He continued to report at the port for work, but seldom would get picked for work as a longshoreman.  

A VA treatment records dated in March 2012 reveal that the Veteran was studying business administration and only lacked two courses in getting his college degree.  

In an opinion dated in August 2011, the VA examiner reported that the Veteran's status post bankart repair, left shoulder with mild degenerative changes and limited range of motion rendered the Veteran unable to secure and maintain substantially gainful employment.  The examiner reasoned that the Veteran was last employed as a maintenance person at Gateway Behavior Health Service.  The examiner noted that the Veteran has been through vocational rehabilitation and trained for a desk job with typing; however, he was unable to do this type of work due to pain in the left shoulder and he could not have a job with his left arm hanging by his side without more pain.  The Veteran had decreased strength in his left arm with limited range of motion.  He could not do any heavy lifting or overhead work with the left arm and has required the use of strong medication in the past, i.e. Vicodin, for control of pain.  

In July 2013, the Director of Compensation Service (formerly Compensation and Pension Service), found that the August 2011 VA opinion was not unequivocal with regard to employability in a sedentary capacity with limited or not typing duties.  The Director reported that the evidence in the claims file showed that the Veteran still reported for duty as a longshoreman, which reflected evidence of employability regardless of his reports of seldomly getting picked for duty.  The Director noted that a review of the Veteran's vocational and rehabilitation records showed that his counselor found that the Veteran's most suitable vocational objective was training in administration specializations/shipping and receiving/logistics.  The counselor noted that the Veteran had a strong military background as a storekeeper with experience in logistics.  The Veteran was provided with training in computer skills and he maintained a 3.16 GPA for 143 hours.  His classes were heavily weighted toward business-type classes.  The last entry in his vocational rehabilitation folder noted that he was still working "as a longshoreman to make ends meet but is very motivated to find something more suitable."

The Director reported that although the August 2011 VA examiner stated that the Veteran may not be suitable for a desk job with typing, the vocational and rehabilitation records showed that he has received training in several other areas and continued to work as a longshoreman after retraining.  The records also showed that he actively engaged in looking for work in his new field while working as a longshoreman.  The Director found that there was evidence that the Veteran was capable of employment other than that precluded by the VA examiner's opinion, therefore, TDIU on an extra-schedular basis was denied.  

The Board agrees with the conclusions contained in the July 2013 opinion from the Director of Compensation Service.  Although it appears that the August 2011 VA examiner reviewed the claims file, the examiner did not address that the Veteran continued on in college for business administration while working as a longshoreman.  Counselors had determined that the Veteran was trainable in business and administrative areas and the reason the Veteran did not pursue this training more aggressively was to earn money as a longshoreman.  The VA medical opinion in this regard was based on an inaccurate history and is of limited probative value.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The Board finds the vocational counseling record is more probative; counselors take into account the Veteran's physical disability and educational ability and do not allow individuals to pursue training for occupations that they would be unable to perform.  The counseling record provided competent and more probative evidence which outweighs the August 2011 VA opinion and the weight of the evidence is against a finding that the Veteran's is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability.

The Board does not doubt that the Veteran's service-connected left shoulder disability causes him occupational impairment, as evidenced by his 20 percent rating.  He certainly would be limited in some strenuous occupations and even sedentary ones requiring extensive use of the left upper extremity, but when considering his training, exhibited educational capacity, and the fact that he retains function in the left shoulder, the Board does not find that he is unemployable.  For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for entitlement to a TDIU, including on an extraschedular basis and this claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to a TDIU is denied.





____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs