Citation Nr: 1632694 Decision Date: 08/17/16 Archive Date: 08/24/16 DOCKET NO. 03-04 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a disability rating in excess of 20 percent prior to May 31, 2005, and in excess of 30 percent beginning May 31, 2005, for a left shoulder disability, to include entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to October 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge at the Board's office in Washington, D.C. (Central Office hearing) in May 2004. A transcript of the hearing is of record. When this case was most recently before the Board in July 2014, the Veteran's claim was denied. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2016 decision, the Court reversed the Board's decision to deny the Veteran's claim for a TDIU, and remanded the claim with instructions for the Board to grant a TDIU on an extra-schedular basis. The case is now again before the Board for further appellate action consistent with the Court's decision. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. FINDING OF FACT Throughout the period on appeal, the Veteran has not met the threshold percentage requirements for entitlement to a TDIU in accordance with 38 C.F.R. § 4.16(a); however, from January 1, 2002, to the present he has been unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected left shoulder disability. CONCLUSION OF LAW From January 1, 2002, to the present the criteria for a TDIU based on the service-connected left shoulder disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to a TDIU on an extra-schedular basis with an effective date of January 1, 2002. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2016) before the claim is decided. Legal Criteria 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. 38 C.F.R. § 4.16 (2016). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2016). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2016). In determining whether unemployability exists, consideration may be given to a 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 (2016). TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent 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, it 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 (2016). Rating boards should submit to the Director, Compensation Service, for extra-schedular 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). 38 C.F.R. § 4.16(b) (2016). Unlike the criteria for an extra-schedular rating under 38 C.F.R. § 3.321, the grant of an extra-schedular rating for TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). This means that the Board should take into account the veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. The general rule with respect to the effective date of an award of increased compensation is that the effective date "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a) (West 2014). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1) (2016). An exception to that rule applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to the date of receipt of the claim, the increase is effective as of the date the increase was "factually ascertainable." 38 U.S.C.A. 5110(b)(2) (West 2014); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2) (2016); VAOPGCPREC 12-98 (1998). If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2) (West 2014); 38 C.F.R. § 3.400 (o)(1)(2) (2016). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); 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. Background and Analysis In 2003 and 2013, the Veteran's claim was referred to the Director of the Compensation Service for extra-schedular consideration. On both occasions, the Director denied the extra-schedular claim. As noted above, the Board denied the Veteran's appeal in July 2014. In its January 2016 decision, the Court reversed the Board's July 2014 denial of the Veteran's claim for a TDIU, and remanded the claim with instructions for the Board to grant a TDIU on an extra-schedular basis. The Court did not instruct the Board as to the assignment of an effective date for TDIU. Instead, the Court addressed the Veteran's additional arguments in support of his claim for ratings higher than 20 percent and 30 percent prior to, and beginning on May 31, 2005, respectively, in the event that the Court's decision to grant a TDIU did not "completely resolve the issue as to the evaluation for the service-connected shoulder disability . . . ." As such, the Board must grant a TDIU and assign an effective date. Thereafter, the Board must determine whether the effective date assigned has completely resolved the Veteran's appeal. Upon a review of the record, the Board finds the Veteran became entitled to a TDIU on an extra-schedular basis on January 1, 2002. In this regard, the Board again notes that if an increase in disability occurred within one year prior to the claim for an increased rating, the grant of an increase is effective as of the date the increase was "factually ascertainable." See 38 C.F.R. 3.400(o)(1)(2) (2016). The Veteran filed his increased rating claim on February 12, 2002. However, at his March 2003 hearing before a Decision Review Officer, the Veteran testified that his left shoulder disability caused him to officially shut down his plumbing business on December 31, 2001, and that he had not worked since. The Veteran's representative subsequently submitted the Veteran's earnings records associated with his Social Security Administration benefits claim, which show he earned income in 2001, but not in 2002, and that he has not earned any income since. The Veteran's contentions and earnings records are supported by the medical evidence of record. For example, in a February 2003 statement, one of the Veteran's VA physicians asserted that the Veteran's condition had advanced to the point that he was unable to perform his job as a plumber because he was simply unable to perform the required duties due to pain and decreased range of motion, as his job involved a lot of overhead work pushing and pulling. The physician stated he had advised the Veteran on his last several visits, at least since October 2001, to file for increased disability compensation since his disability prevented him from performing his occupation. In April 2003, the VA physician added that he considered the Veteran to be unemployable, and not to be a candidate for vocational rehabilitation since he was 58 years old and only had a 9th grade education. In a February 2011 statement, the Veteran's private physician stated that he had reviewed the Veteran's medical records, and that due to the Veteran's chronic left shoulder pain alone, he was unemployable in all types of work since 2001 at the earliest, and that due to cognitive ability and blunted reaction times from taking oxycodone, the Veteran was precluded from driving a motorized vehicle or operating any kind of machinery. In April 2014, the physician authored an addendum letter which states, in part, that the Veteran's medical records quite clearly demonstrated that he had been unable to secure and follow any substantially gainful physical or sedentary occupation since at least 2001. Upon a review of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board is satisfied that the evidence establishes the Veteran's service-connected left shoulder disability has been sufficiently severe from January 1, 2002, to the present to render him unable to maintain any form of substantially gainful employment consistent with his education and occupational background. Accordingly, granting of a TDIU effective January 1, 2002, is warranted. In this regard, the Board observes that the letters by the Veteran's physicians discussed above address the impact of his left shoulder disability on his employment during 2001. However, the evidence shows the Veteran continued to operate his plumbing business and to earn income until the end of December 2001. As such, entitlement to a TDIU prior to January 1, 2002, is not warranted. The Board also notes that in a June 2016 letter, the Veteran's representative stated the Veteran would withdraw any further claims for increased ratings for his left shoulder disability for the period on appeal if the Board granted a TDIU effective as early as February 12, 2002, the date of the Veteran's claim for an increased rating. The Board has found that the Veteran is entitled to a 100 percent rating effective January 1, 2002. As such, a discussion of the Veteran's entitlement to an increased rating based on the schedular criteria for his left shoulder disability is unnecessary. ORDER Entitlement to a TDIU due to the service-connected left shoulder disability, effective January 1, 2002, is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs