Citation Nr: 1753060 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 09-34 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to total disability rating based on individual unemployability (TDIU) on an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2000 to July 2000. This case comes before the Board of Veterans' Appeals the Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an April 2012 videoconference hearing. A transcript of the hearing is of record. In a May 2012 Board decision, the Board took jurisdiction of the issue of TDIU as part of the increased rating claim, finding that TDIU was raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the May 2012 Board decision, TDIU was remanded for further development. The matter has been returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran's service-connected recurrent left shoulder dislocation disability has not met the schedular criteria under 38 C.F.R. § 4.16(a) with a disability rating of 20 percent. 2. The preponderance of the evidence is against a finding that the Veteran's service-connected recurrent left shoulder dislocation disability precludes him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a January 2007 letter in connection with the claim for increased rating and notice in the August 2017 supplemental statement of the case (SSOC) on the issue of TDIU. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. TDIU Legal Criteria A TDIU may be assigned when a 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. 38 C.F.R. § 4.16(a) (2017). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). However, even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2017). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. 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; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) (1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321 (b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. Factual Background and Analysis The Veteran filed a July 2000 claim for service connection for a dislocated left shoulder. See July 2000 Veteran's Application for Compensation or Pension. He contends that he has not been employed since August 2001 and cannot work because of shoulder. See December 2003and May 2017 Correspondences. The Board notes that the Veteran has a high school education grade education and after graduation was engaged in heating ventilation, and air conditioning training for about a year. See August 2000 VA examination report. He also had a number of hours in training to become a fire fighter which he did not. Id. He was currently working for a landscaping company and he mostly drives trucks to and from the work sites for them. Id. The Veteran is currently service connected for recurrent left shoulder dislocation with a noncompensable rating from July 2000 and a 20 percent rating from September 2005. Accordingly, his disability rating does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. The Veteran was afforded an August 2000 VA general medical examination. The examination revealed that the Veteran was currently living with his girlfriend in a home that he owns. He graduated from high school and following that was engaged in heating ventilation, and air conditioning training for about a year. He also had a number of hours in training to become a fire fighter which he did not. He was currently working for a landscaping company and he mostly drives trucks to and from the work sites for them which is the type of work he did prior to entering the service. The record includes a December 2003 Record of Proceedings wherein the Industrial Commission of Ohio determined that the Veteran was statutorily permanently and totally disabled pursuant to the Ohio Revised Code. The record includes a June 2002 Social Security Administration (SSA) Decision indicating that the Veteran was disabled as of August 2001 due to his "severe" lumbar disc disease and residuals of left clavicle fracture including left arm paralysis. The SSA decision indicated that the Veteran testified that he could do a considerable amount of standing but very little sitting and was capable of lifting and carrying up to eight pounds. The SSA decision cited an opinion from the Veteran's treating pain specialist that the Veteran was unable to sustain remunerative employment due to his back and left upper extremity impairments. In his SSA Disability Reconsideration Report, the Veteran described his symptoms as including his arm dislocating and a ruptured disc in his back with pain when his back gets jarred around. The Veteran was afforded a February 2007 VA examination. The examiner indicated her diagnostic impression of the Veteran was that he is status post left clavicular fracture that was treated surgically with hardware placement which has healed with the residual of clavicular deformity. The examiner opined that the Veteran's left shoulder disability is not caused by or a result of any injury sustained during his short military service which he left because it was too demanding on him. The examiner further opined that the Veteran's left shoulder disability is completely caused by and totally a result of his work-related injury sustained in 2001 and it was that injury which was serious enough for him to become totally disabled. The examiner explained that the injury that the Veteran claims occurred in service was not severe enough to preclude his working in a very physically demanding job of transplanting large trees after he left the military. In a January 2008 Buddy/Lay Statement, the Veteran's father indicated that as a result of his son's traumatic dislocation of his left shoulder while in service he could not use his shoulder for any type of lifting. He further opined that the Veteran's work injuries and ancillary issues were related to his service-connected shoulder injury. The Veteran's father acknowledged that he is not a physician but indicated his opinion was supported by his son who is a doctor and in an undated Buddy/Lay Statement the Veteran's brother indicated that he is a doctor and that he observed the Veteran traumatically dislocate his left shoulder many times after discharge from service before his work related injuries occurred. The Veteran's brother indicated that the manner with which the dislocation took place was consistent with a rotator cuff injury to the shoulder. It was the Veteran's brother's professional opinion that the Veteran's left shoulder injuries were attributable to his military service. The Veteran was afforded a May 2011 VA examination. The examiner indicated that the Veteran's condition did not interfere with his occupational functioning in that he does not work. The Veteran was afforded a July 2014 VA examination. The examiner indicated that the that the Veteran worked in 2001 and reported that while working putting a roof onto his supervisor's office, he fell about 25 feet off the roof and broke his left clavicle. He took Worker's Compensation for this injury. The examiner indicated that Veteran's shoulder condition impacted his ability to work and explained that the Veteran is not currently working and last worked in 2001 as a landscape foreman. He worked in a managerial position as a landscape foreman with some landscaping duties involving heavy physical work. He stopped working in 2001 due to traumatic left clavicle/shoulder injury and since then has received Bureau of Worker's Compensation and SSA disability for this injury. The examiner opined that the Veteran would be limited from heavy physical labor based on his left shoulder condition but could work in sedentary or light physical work that does not require overhead use of his left arm. The examiner further opined that it was less likely that the Veteran would be able to return to his previous occupation of landscape foreman involving heavy physical work due to left clavicle/shoulder injury but he could work in any sedentary, light, or medium physical work capacity that does not require overhead use of his left arm based on his service-connected left shoulder recurrent dislocation. In a July 2017 VA Addendum opinion, the VA examiner opined that the Veteran's acromioclavicular joint degenerative joint disease is less likely than not (less than 50 percent) proximately due to/caused by the Veteran's service connected recurrent left shoulder dislocation since the Veteran had evidence of a left clavicle fracture after leaving service from falling off a roof and had a subsequent open reduction internal fixation with retained plate and screws in the left clavicle. The Veteran's current left shoulder acromioclavicular joint degenerative joint disease is the result of the Veteran's non-service fracture and subsequent open reduction internal fixation surgery with retained hardware. There is no medical nexus for glenohumeral shoulder dislocations to cause acromioclavicular joint degenerative joint disease. The examiner further opined that the Veteran's labral tear status post arthroscopic repair is less likely than not (less than 50 percent) proximately due to or caused by his service connected recurrent shoulder dislocation since the veteran labral tear is the result of a traumatic injury to the left shoulder resulting from a work injury falling off a roof per the evidence of record. Moreover, the examiner opined that the Veteran's current symptoms and physical findings to include decreased range of motion, left shoulder pain, left shoulder scars, and left shoulder weakness are the result of the Veteran's non-service connected left clavicle fracture, left acromioclavicular joint osteoarthritis/degenerative joint disease, and left shoulder labral tear and there subsequent surgical treatments. The examiner also opined that the Veteran's left shoulder instability and positive crank apprehension testing on physical examination are due to his service-connected left shoulder recurrent dislocations. Lastly, the examiner determined that any further differentiation of the Veteran's left shoulder symptoms is not possible without resorting to mere speculation. The record includes an August 2017 VA Vocational Rehabilitation Counselor's letter indicating that she made the determination that it is not feasible for the Veteran to benefit from a program designed to return him to gainful employment. In an August 2017 Correspondence, the Veteran's VA Vocational Rehabilitation Counselor indicated that the Veteran was found to have an impairment to employability and that his service-connected disability has contributed in substantial part to that impairment. Also the Veteran had not overcome his impairment through suitable employment, therefore he was found to have an employment handicap. Based on the evidence, the Board concludes that a TDIU is not warranted on an extraschedular basis. As an initial matter, the Board notes that the Veteran worked in 2001 and reported that while working putting a roof onto his supervisor's office, he fell about 25 feet off the roof and broke his left clavicle and he took Worker's Compensation for this injury. However, the Board is not bound by Worker's Compensation or state determinations that the Veteran is disabled pursuant to the Ohio Revised Code. Significantly, the February 2007 VA examiner indicated her diagnostic impression of the Veteran that he is status post left clavicular fracture that was treated surgically with hardware placement which has healed with the residual of clavicular deformity. The examiner opined that the Veteran's left shoulder disability is not caused by or a result of any injury sustained during his short military service which he left because it was too demanding on him. The examiner further opined that the Veteran's left shoulder disability is completely caused by and totally a result of his work-related injury sustained in 2001 and it was that injury which was serious enough for him to become totally disabled. The examiner explained that the injury that the Veteran claims occurred in service was not severe enough to preclude his working in a very physically demanding job of transplanting large trees after he left the military. The July 2017 VA Addendum opinion indicated that the Veteran's acromioclavicular joint degenerative joint disease is less likely than not (less than 50 percent) proximately due to/caused by the Veteran's service connected recurrent left shoulder dislocation since the Veteran had evidence of a left clavicle fracture after leaving service from falling off a roof and had a subsequent open reduction internal fixation with retained plate and screws in the left clavicle. The Veteran's current left shoulder acromioclavicular joint degenerative joint disease is the result of the Veteran's non-service fracture and subsequent open reduction internal fixation surgery with retained hardware. There is no medical nexus for glenohumeral shoulder dislocations to cause acromioclavicular joint degenerative joint disease. The examiner further opined that the Veteran's labral tear status post arthroscopic repair is less likely than not (less than 50 percent) proximately due to or caused by his service connected recurrent shoulder dislocation since the Veteran labral tear is the result of a traumatic injury to the left shoulder resulting from a work injury falling off a roof per the evidence of record. Moreover, the examiner opined that the Veteran's current symptoms and physical findings to include decreased range of motion, left shoulder pain, left shoulder scars, and left shoulder weakness are the result of the Veteran's non-service connected left clavicle fracture, left acromioclavicular joint osteoarthritis/degenerative joint disease, and left shoulder labral tear and their subsequent surgical treatments. The Board acknowledges the Veteran's and his family's contentions that the Veteran is unable to work due to his service-connected shoulder disability and that his non-service connected shoulder injuries are related to his service-connected disability. The Veteran and his family are competent to report their observations. However, the statements do not show that the Veteran's service-connected shoulder disability precludes him in engaging in substantially gainful employment. For purposes of TDIU, the determinative question is whether the Veteran's level of disability, given his education, training, and experience, renders it impossible for the average person to obtain or retain substantially gainful employment of some type due to service-connected disabilities. Van Hoose, 4 Vet. App. at 363. While the Veteran's brother is a medical professional, his observations are outweighed by the VA examination reports wherein the examiners indicated they reviewed the Veteran's claims file and examined the Veteran. As such, the Board will only evaluate TDIU based on his service-connected left shoulder disability. Although the Board acknowledges that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator (See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (interpreting 38 C.F.R. § 4.16(a)), it is noteworthy that July 2014 VA examination indicated that the Veteran was capable of sedentary to light duty employment based on his service-connected shoulder condition alone and that the Veteran's service-connected disability did not prevent him from securing or following a substantially gainful occupation. The Board notes the Veteran's VA Vocational and Rehabilitation Counselor's determination that is it not feasible for the Veteran to benefit from a program designed to return him to gainful employment and he was found to have an impairment to employability and that his service-connected disability has contributed in substantial part to that impairment and was found to have an employment handicap. See August 2017 VA Vocational Rehabilitation Counselor Correspondences. First, the Board points out that "not feasible to benefit from a program designed to return him to work" does not deem him unemployable by reason of his service-connected shoulder disability. Moreover, the counselor's indication that "his service-connected disability has contributed in substantial part to that impairment" supports that his service-connected disability alone does not preclude him from work. Additionally, the Board notes that the Veteran has been awarded SSA benefits for his "severe" lumbar disc disease and residuals of left clavicle fracture including left arm paralysis. Although VA is required to consider the SSA's findings, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Adjudication of VA and SSA claims is based on different laws and regulations. Thus, SSA's determination has little probative value in this matter, and is not sufficient, in this case, to overcome the other evidence, and the opinion of the July 2014 VA examiner that the Veteran was capable of sedentary to light duty employment work that does not require overhead use of his left arm based on his service-connected disability and the February 2007 VA examiner's note that the Veteran's service-connected injury was not severe enough to preclude his working after he left the military. Additionally, the Board notes that while the SSA determined that the Veteran was disabled for SSA purposes, this determination resulted from a combination of his service-connected shoulder condition and non-service connected lumbar disc disease. Notably, in his SSA Disability Reconsideration Report, the Veteran described his symptoms as including his arm dislocating and a ruptured disc in his back with pain when his back gets jarred around. However, the law is clear, and it states that only service-connected disabilities may be considered in a claim of entitlement to a TDIU. In this case, the Board finds that the weight of the lay and medical evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected recurrent left shoulder dislocation disability, even when his disability is assessed in the context of subjective factors such as his occupational background and level of education. Although the VA examinations reflect that the Veteran is not working, the examinations also indicate the Veteran was capable of sedentary or light duty employment work that does not require overhead use of his left arm and was not precluded from work due to his service-connected shoulder disability. While the Board does not doubt that the Veteran's service-connected disability has a significant effect on his employability, the weight of the evidence does not support his contention that his service-connected disability alone is of such severity so as to preclude his participation in any form of substantially gainful employment. Accordingly, the Veteran's TDIU claim does not warrant referral to the VA Director of the Compensation and Pension Service, and must be denied. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs