Citation Nr: 1754965	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  11-00 289A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

The Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

K. Foster, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1977 to February 1980.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

This appeal was before the Board in August 2015.  At that time the issues of (1) entitlement to an initial evaluation in excess of 20 percent for left shoulder cuff repair, status-post surgery with degenerative changes, and (2) entitlement to an initial compensable evaluation for scars, post-operative right shoulder were denied.  Consequently, they are no longer before the Board.  The issue of TDIU was considered by the Board to be part of the Veteran's pending increased rating claims pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board remanded this issue for further development.  The Board finds there has been substantial compliance with its August 2015 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.)  Therefore, the issue of TDIU is appropriately before the Board and ready for adjudication.

Following the Board's August 2015 remand, the RO issued a supplemental statement of the case (SSOC) in August 2017 readjudicating the rating evaluations for the following service-connected disabilities: .(1) evaluation of post-traumatic stress disorder (PTSD) with depressive disorder, currently evaluated at 70 percent disabling; (2) evaluation of recurrent dislocation right shoulder postoperative, status post surgeries x2, with corticated ossicle inferior to the glenoid, currently evaluated as 30 percent disabling; (3) evaluation of post-surgical bilateral shoulder scarring (previously rated as scars, post-operative right shoulder and residual scar, left shoulder s/p surgery), currently evaluated at 20 percent disabling; (4) evaluation of amputation left index finger at proximal interphalangeal level, currently evaluated at 20 percent; (5) evaluation of bilateral tinnitus, currently evaluated at 10 percent disabling; (6) evaluation of bilateral hearing loss, currently evaluated at 0 percent disabling; and (7) evaluation of scar left index finger residual of amputation, currently evaluated at 0 percent disabling.  As noted above, the issue of an increased evaluation for right shoulder scars was previously addressed by the Board and denied.  In addition, the August 2017 SSOC was not preceded by a statement of the case (SOC) in regard to these issues.  As was noted by the Board in August 2015, "[i]n no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed appealed issues that were not addressed in the Statement of the Case."  38 C.F.R. § 19.31.  Therefore, the Board does not have jurisdiction over these issues and they will not be addressed herein.

Finally, to the extent that any new evidence submitted by the Veteran is pertinent to the pending TDIU claim and has not been reviewed by the agency of original jurisdiction (AOJ), the Board finds that it may consider the newly submitted evidence in the first instance, in light of the Veteran's June 2015 waiver (noted in the August 2015 Board decision/remand).  38 C.F.R. §§ 19.37, 20.1304.

As stated previously by the Board in its prior decision, the issue of peripheral neuropathy of the upper extremities has been raised by the record in a December 2011 VA examination (and was also addressed by the RO in a November 2011 notification letter) but has not been adjudicated by the AOJ.  In addition, the Board also notes that the issue of entitlement to service connection for the left ankle as secondary to the left shoulder was raised by the Veteran in a July 2011 statement (and was also addressed by the RO in a November 2011 notification letter), however, this issue has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).


FINDINGS OF FACT

1.  The Veteran was substantially and gainful employed through June 8, 2016.

2.  After June 8, 2016, the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.
CONCLUSIONS OF LAW

1.  The criteria for entitlement to a TDIU for the period prior to June 9, 2016 have not been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017).

2.  The criteria for entitlement to a TDIU for the period from June 9, 2016 have been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and to Assist

With respect to the issues herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Legal Criteria

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  38 U.S.C. § 1155.  Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  Total disability may or may not be permanent.  38 C.F.R. § 3.340(a)(1).  Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation.  38 C.F.R. § 3.340(a)(2).

TDIU may be assigned 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.  The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances.  38 C.F.R. § 4.16(a), (b).

While it is necessary to have sufficient medical evidence to make an employability determination, the question of whether symptoms render a Veteran unemployable is a legal question for adjudicators, rather than a medical question for health care professionals.  See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) ("The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability.") rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).

A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, 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.  38 C.F.R. § 4.16(a).  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. § 4.16(a).

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; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The sole fact that a veteran 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 or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment.  Id. at 361.  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.

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 a TDIU is whether a veteran's 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, 331-32 (1991). 

In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16(a).  Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability.  38 C.F.R. § 4.17(a).

The Board has reviewed the evidence in the Veteran's claim file, but will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).

Analysis

As an initial matter the Board finds that the Veteran meets the threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a).  During the period on appeal, the Veteran was service-connected for three disabilities, recurrent dislocation right shoulder, amputation left index finger, and left shoulder rotator cuff repair, rated at least at 30 percent, 20 percent, and 20 percent disabling, respectively.  The combined rating for these disabilities is in excess of 40 percent.  In addition, they are all attributable to disabilities affecting a single body system, i.e. orthopedic, thus they may be considered as one disability, pursuant to 38 C.F.R. § 4.16 (a).  In addition, during the period on appeal the Veteran's combined evaluation for compensation was at least 70 percent.  Therefore, the Veteran meets the threshold requirements for TDIU, as set forth in 38 C.F.R. § 4.16 (a).

In October 2009, VA received documentation from the United States Postal Service (USPS), stating that the Veteran was still actively employed working eight hour days.  This document indicated that the Veteran lost 14 weeks of work during the 12 months prior due to disability (unspecified).

The Veteran was provided a compensation and pension examination, social work and industrial survey in November 2015.  This examination showed that the Veteran's education includes a high school degree and postal service course.  It states that since leaving the military in 1980, the Veteran has worked at the USPS.  The report noted that the Veteran was presently employed by USPS and that this occupation was not below his education and training.  The Veteran stated that his shoulder pain, along with back pain radiates to his neck and prevents him from working well at the USPS.  He reported getting tired easily from the pain.

In June 2016, the Veteran submitted an application for TDIU, in which he indicated that his service-connected disabilities prevented him from securing or following any substantially gainful occupation.  He noted employment at the USPS, ending June 8, 2016, with a total earned income for the 12 months prior as $55,000.  He reported that the most he ever earned in one year was $78,000.  The Veteran also reported that his disability affected his full-time employment was June 8, 2014 and the dated he last worked full-time was June 8, 2016.

In August 2016, VA received documentation from the USPS, which stated that the Veteran was no longer employed there due to medical problems, unable to be consistent with work flow using his arms.  His last day of employment was reported to be June 8, 2016. 

In March 2017, VA obtained records from the Social Security Administration (SSA), which show that the Veteran is in receipt of Social Security disability, with a disability onset date of June 8, 2016.  The Veteran's primary diagnosis is for disorders of the back (discogneic and degenerative) and secondary is ischemic heart disease.  While the Veteran is not service-connected for either of these disabilities, the SSA records also show that the Veteran was reported being unable to lift, grasp, and reach due to his shoulder pain.

In May 2017, the Veteran was provided another compensation and pension examination, social work and industrial survey, which states that the Veteran retired from the USPS in June 2017 and was approved for disability by both the USPS and SSA.  The Veteran's highest paid position was reported to be $67,000 per year.  The Veteran reported that he was no longer physically able to do his job; he stated that his back and shoulder injuries prevented him from working, as he could no longer stand; he reported that he suffered from daily pain.  The examiner noted that the Veteran could conceivably work in a situation where he could sit down for a limited period of time and where he would be able to work alone and not be in contact with other people.

In July 2017, VA received correspondence from the US Office of Personnel Management Retirement Operations Center, which reported that the Veteran is receiving, as a result of his employment, retirement (FERS) non-disability, with the benefit beginning July 1, 2016.

After reviewing all the evidence of record, the Board finds that the evidence is against a finding that the Veteran's service-connected disability prevented him from obtaining or maintaining substantially gainful employment prior to June 8, 2016.  The evidence clearly demonstrates that during this time, the Veteran was substantially gainfully employed, and was earning income well above the poverty threshold.  Specifically, evidence from the Veteran's employer indicates that the Veteran was employed until June 8, 2016.  For example, evidence from October 2009, from USPS shows that the Veteran was actively employed working eight-hour days.  While this record states that the Veteran lost 14 weeks of work during the 12 months prior due to disability, this disability is unspecified.  In addition, the Veteran reported in the June 2016 TDIU application that his disability did not affect his full-time employment until June 8, 2014, and he did not become too disabled to work until June 8, 2016.  

Although, the Board finds that the Veteran is not entitled to a TDIU through June 8, 2016, it finds that he is entitled to a TDIU for the period thereafter.  That is, the Board finds that for the period after June 8, 2016, the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  

Various government records, including from the Veteran's former employer, USPS, as well as statements from the Veteran, indicate that June 8, 2016, was his last date of employment, and that the Veteran is no longer employed due to physical limitations, including problems with his arms.  The Veteran has indicated that he has a high school degree and training with USPS, and since leaving service has worked almost exclusively for the USPS.  While the May 2017 social work and industrial survey indicated that the Veteran could conceivably work in a situation where he could sit down for a limited period of time and where he would be able to work alone and not be in contact with other people, the Board notes that the Veteran is limited in his education and prior work experience.  In addition, as discussed above, the determination of employability is a legal, rather than medical one.

The Board has also considered evidence contained in the SSA records.  While VA is not bound by SSA determinations, it is required to consider the SSA's findings.  See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).  SSA records support the Board's finding that the Veteran was employable until June 8, 2016.  In addition, SSA records indicate that the Veteran was reported to be unable to lift, grasp, and reach due to his shoulder pain.

Finally, the Board notes that it is aware that the May 2017 social work and industrial survey listed June 2017 as the date of the Veteran's retirement from the USPS, but this later date is not supported by the other documents and statements of record.  Resolving all doubt in the Veteran's favor, the Board finds that the earlier June 8, 2016 date to be the last date of the Veteran's employment.

Upon review of the evidence of record, the Board finds that the evidence is at least in equipoise regarding whether this Veteran is unable to obtain or retain a substantially gainful occupation due to his service-connected disabilities.  Therefore, resolving all doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities prevented him from obtaining substantially gainful occupation for the period after June 8, 2016.  As such, the Board concludes that TDIU is warranted after June 8, 2016, under 38 C.F.R. § 4.16 (a).



CONTINUED ON NEXT PAGE


ORDER

Entitlement to a TDIU, for the period prior to June 9, 2016, is denied.

Entitlement to a TDIU from June 9, 2016, is granted.




____________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs