Citation Nr: 1759927 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 09-40 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Katrina J. Eagle, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from June 1960 to December 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction of the case is currently with the RO in Winston-Salem, North Carolina. The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge in August 2011. A copy of the transcript of that hearing is of record. In April 2014, the Board remanded the case for further development. In a December 2015 decision, the Board denied the claim for a rating in excess of 30 percent for a left shoulder disability and remanded the claim for a TDIU for the adjudication of pending claims to reopen the claims for service connection for degenerative arthritis of the cervical spine and for head trauma. Those claims have been adjudicated and the case has been returned to the Board. The record shows that upon request from the Board the Veteran and his attorney provided a VA Form 21-22a in July 2017 clarifying representation. Although a review of VA records subsequent to the December 2015 decision indicates confusion as to representation, in light of the demonstrated communication associated with the matter the attorney is assumed to have been adequately notified that the case had been re-certified for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran is only service-connected for a left shoulder disability (rated at 30 percent). 2. The Veteran's service-connected left shoulder disability has not precluded him from securing or following a substantially gainful occupation at any time during the rating period. CONCLUSION OF LAW The criteria for a TDIU, to include submission for extra-schedular consideration under 38 C.F.R. § 4.16(b), have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in June 2006. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including providing VA examinations. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). There has been substantial compliance with the remand directives. TDIU On a May 2006 formal claim for a TDIU, the Veteran indicated that his service-connected left shoulder disability prevents him from securing or following any substantially gainful occupation. He reported working 60 hours per week as a self-employed farmer from September 1977 to September 2002, missing 15 to 25 hours of work per week due to illness. He indicated that he last worked full-time, and became too disabled to work, in July 2002. He reported completing high school with no other education or training prior to or since becoming too disabled to work. He indicated that his left shoulder pain prevents him from performing chores, with hearing loss, tinnitus, and dizziness also affecting his ability to perform chores. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). The Veteran is only service-connected for a left shoulder disability (rated at 30 percent). Thus, he does not meet the percentage standards of 38 C.F.R. § 4.16(a). Nevertheless, 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(b) (2017). Such cases should be submitted to the Director of the Compensation and Pension Service for extra-schedular consideration when a Veteran is unemployable by reason of service-connected disabilities, but fails to meet the percentage standards of 38 C.F.R. § 4.16(a). In such a submission, there should be a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. While the Board does not have the authority to grant a TDIU on an extra-schedular basis in the first instance, the Board may decide whether the case should be referred to the Director of the Compensation and Pension Service for consideration of an extra-schedular rating. 38 C.F.R. § 4.16(b). However, the question that must be answered remains whether the Veteran's service-connected left shoulder disability, alone, prevent him from securing or following a substantially gainful occupation. VA is charged with finding facts and applying the appropriate legal standards, including using its judgment to determine whether the § 4.16 standard has been met, and may not delegate this duty. Geib v. Shinseki, 733 F.3d 1350 (Fed.Cir.2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." (citing 38 U.S.C. § 5103A(d)(1) and 38 C.F.R. § 4.16(a)). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. While the Veteran may not have worked full-time since September 2002, the record fails to show that his service-connected left shoulder disability prevented him from securing or following a substantially gainful employment. A November 2006 VA examination report reflects the examiner's opinion that the Veteran would not be able to perform physical work that required him to use the left upper extremity but he would be able to perform some sort of sedentary work. An April 2008 private neuropsychological examination report reflects the Veteran's statement that he had been employed in farming for the last 30 years but physical limitations including neck and shoulder pain and foot drop have interfered with his ability to continue. The report also reflects his wife's statement that he has had a progressive deterioration in cognitive functioning which has reduced his ability to function in his daily life. The psychologist diagnosed the Veteran with dementia and opined that the Veteran is not capable of gainful employment. However, this opinion indicates that the Veteran's psychiatric impairment prevents him from securing or following a substantially gainful occupation. A July 2010 VA examination report reflects that the Veteran retired in July 2003 due to shoulder and neck pain. A July 2015 VA examination report reflects the Veteran's complaints of pain and stiffness in the left shoulder. Examination revealed a significant decrease in range of motion but only minimally decreased strength. The examiner opined that the Veteran's left shoulder disability would impact physical employment as he cannot perform overhead work with the left arm and he can only lift, push, and pull no more than 5 pounds with his left arm. The examiner also opined that the Veteran's left shoulder disability would impact sedentary employment as he cannot answer the telephone with his left hand and he cannot type with his left hand. VA treatment records also show that the Veteran's left shoulder disability affects his ability to work but do not show that it prevents him from working. A January 2006 record reflects the physician's recommendation that the Veteran avoid heavy shoulder work. A March 2008 record reflects another physician's opinion that the Veteran should not have any problems with gaining employment in the future. A January 2009 record reflects the Veteran's report that his left shoulder disability is limiting him in terms of what he can do around the farm. April 2010 records show that the Veteran no longer worked as a farmer but had a small agriculture business and would not be able to attend his annual physical examination until mid-June due to farm work. An August 2014 record shows that the Veteran remained active in church activities, volunteered at the fire house, and exercised daily on his elliptical trainer. A December 2014 record shows that he continued to work on his farm. VA treatment records also show that the Veteran has been followed by the spinal cord injury department for severe cervical myelopathy since April 2010 at which time he reported having gait disturbances and using a walker or cane. A September 2012 record shows that the Veteran had incomplete tetraplegia. The treatment records also show that he underwent left knee replacement in 2011 and right hip replacement in 2012. Given the above evidence of record, the Board acknowledges that the Veteran's service-connected left shoulder disability has significantly impaired his ability to work in a physically demanding occupation. The Board finds, however, that the left shoulder disability is not shown to have rendered him unable to secure or follow a substantially gainful occupation. After retiring from his full-time employment as a farmer, he has been able to run a small agriculture business. He has also been able to remain active in church activities and volunteer at the fire house. The record also shows that the Veteran's treating physicians have only advised him to avoid heavy shoulder work. Similarly, VA examiners have only indicated that he would not be able to perform physically demanding work that required the use the left upper extremity or overhead work. The VA examiners specifically opined that he would be able to perform sedentary work. While the July 2015 examiner noted that he would not be able to answer the telephone or type with his left hand, those restrictions would not prevent all types of sedentary employment. The record further shows that the Veteran has other nonservice-connected physical impairments that would place greater restrictions on his employment, including his cervical myelopathy, partial tetraplegia, and right hip and left knee replacements. The record also shows that he has a nonservice-connected psychiatric impairment, diagnosed as dementia, that alone has been cited as preventing him from securing or following a substantially gainful occupation. Moreover, the evidence of record does not demonstrate that the Veteran's left shoulder disability has resulted in marked interference with employment. In that regard, the Board found in the December 2015 decision that his left shoulder disability was adequately contemplated by the available schedular rating and the disability did not present an exceptional or unusual disability picture with such related factors as marked interfere with employment or frequent periods of hospitalization. Here, the Board reiterates that the Veteran is shown to have been a self-employed farmer for many years and it is reasonable to assume that he has developed employment skills, such as business or technical expertise, that would not require the physical use of his left upper extremity beyond that currently demonstrated. Thus, without evidence of marked interference with employment, there is no basis for referral of this case for extra-schedular consideration. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In summary, the Board finds that the Veteran's service-connected left shoulder disability has not prevented him from securing or following a substantially gainful occupation at any time during the rating period. Thus, a TDIU is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A TDIU is denied. ____________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs