Citation Nr: 1801972 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-19 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder injury residual, to include as secondary to a right shoulder injury residual. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran had active service from August 1978 to February 1979. This matter initially came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in April 2015. A transcript of the hearing is associated with the claims file. The Veteran first claimed entitlement to service connection for a bilateral shoulder disability in August 1989. VA denied this claim in December 1989 and the Veteran did not appeal. The Veteran filed to reopen his claim in October 2010. The Board notes that the Veteran is currently in receipt of a 10 percent rating for a right shoulder injury residual, effective October 20, 2010. In a September 2015 decision, the Board reopened the issue of entitlement to service connection for a left shoulder injury residual and remanded the matter for additional evidentiary development. The Board also remanded the issue of entitlement to service connection for sleep apnea so that a statement of the case could be provided. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). The Board notes that the issue of entitlement to service connection for sleep apnea and entitlement to an increased rating for a right shoulder injury residual have been perfected but have not yet been certified to the Board. A review of the claims file shows that the Agency of Original Jurisdiction (AOJ) is still taking action on these issues. Namely, the Veteran has requested a Board hearing on his June 2016 VA Form 9, which is still pending. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. Similarly, the Veteran has filed a notice of disagreement at the RO concerning entitlement to service connection for an acquired psychiatric disorder and what appears to be a claim for an increased rating for a bilateral foot disability, as shown in the Veterans Benefits Management System (VBMS) electronic claims file. Such appeals are contained in the VACOLS appeals tracking system as active appeals at the RO. While the Board is cognizant of the Court's decision in Manlincon, the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the notice of disagreement and is currently processing the appeal. As such, those issues are also not before the Board at this time. The remaining matters listed on the title page have since returned to the Board for further consideration. The Board acknowledges that the Veteran has been represented by a number of different representatives in the past. In an October 2017 correspondence, his attorney of record withdrew his representation and the Veteran has now selected the Florida Department of Veterans Affairs as his current representative. See December 2017 VA Form 21-22. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. FINDINGS OF FACT 1. A left shoulder injury residual was not manifest in service, it is not otherwise attributable to active service, nor was it caused by or permanently made worse by a service-connected disability. 2. The Veteran is service connected for a bilateral foot disability, rated 20 percent disabling; bilateral tinea pedis, rated 10 percent disabling; and right shoulder injury residual, rated 10 percent disabling. He has worked in a variety of jobs, including as an inspector, security officer, shipping and receiving clerk, warehouse specialist, barber, and housekeeper. 3. The preponderance of the evidence of record does not show that the Veteran is unemployable due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a left shoulder injury residual, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.1, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. The Veteran's statements in support of the claim are of record, including testimony provided at the hearing before the undersigned Veterans Law Judge. The Board hearing focused on the elements necessary to substantiate his claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. Thus, the material issues on appeal were fully developed in accordance with 38 C.F.R. § 3.103(c) (2017). Pursuant to the Board's September 2015 remand, the Agency of Original Jurisdiction (AOJ) provided the Veteran with a VA examination and opinion which was responsive to the questions asked of the examiner, and issued a supplemental statement of the case in August 2017. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's September 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998). Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Legal Principles Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); 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). Left Shoulder Injury Residual The Veteran appeals the denial of entitlement to service connection for a left shoulder injury residual. He contends that his left shoulder injury manifested in service and/or is secondary to his service-connected right shoulder injury residuals. Specifically, the Veteran claims that he injured both his left and right shoulders after falling from his bunk while in service, and that his service-connected right shoulder injury has caused him to overcompensate and use his left shoulder more, resulting in additional injury. After weighing the evidence, the Board concludes that the more probative evidence is against the Veteran's claim. The Board notes that the Veteran has received some VA treatment, but there is nothing in the record to suggest that he has received VA treatment for his claimed left shoulder injury. In April 2015, the Veteran testified that he actually injured both of his shoulders in service. He complained of frequent pain and problems with various nerves, including those surrounding his shoulder area. Pursuant to the Board's reopening of this issue and remand, the Veteran underwent a VA examination in July 2017. The Veteran stated that he had weakness in his extremities. He complained of pain in his shoulders approximately 2-3 times per day. He also stated that his shoulders stiffen up and ache when the weather changes. Diagnostic testing showed an impression of no acute focal abnormalities of the left shoulder. After a review of the Veteran's electronic claims file, the examiner diagnosed the Veteran with mild bilateral rotator cuff tendinitis, with the left shoulder dated 2017. The examiner determined that the Veteran's left shoulder condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in service injury and less likely than not (less than 50% probability) proximately due to or the result of the right shoulder condition. The examiner stated there was minimal documentation of a left shoulder condition (complaints, diagnosis or treatment) in the service treatment records and/or subsequent medical records for 37 years post-service. In addition, the examiner stated that a mild right shoulder rotator cuff tendinitis was not medically known to cause or aggravate a left shoulder condition. Additionally, it was stated that heavy lifting was to be avoided because of his right shoulder condition. As a result, by avoiding physical activity such as heavy lifting, less stress was likely placed on the left shoulder as well as on the right shoulder than otherwise would have occurred. Therefore, the left shoulder condition was unlikely to have been secondary to or have been aggravated by the right shoulder condition. In light of the above, the Board determines that a preponderance of the evidence shows that the Veteran's left shoulder injury residuals (diagnosed as mild rotator cuff tendinitis) was not incurred in or aggravated by service nor was it caused or aggravated by his service-connected right shoulder injury residuals. The Board finds the reasoning of the July 2017 VA examiner highly probative as he indicated a detailed review of the evidence, provided a fully supported rationale consistent with the evidence, and considered the Veteran's claims regarding his left shoulder symptoms and onset. The July 2017 examiner indicated that there was a significant amount of time between discharge and initial evidence of a left shoulder injury residual, which was about 37 years after separation from active service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). The July 2017 examiner also remarked that a mild right shoulder rotator cuff tendinitis is not medically known to cause or aggravate a left shoulder condition. The July 2017 examiner also explained that the Veteran's service-connected right shoulder injury caused him to avoid heavy lifting, and the Veteran therefore likely placed less stress on his shoulders than a normal person in order to avoid further injury. In sum, the most probative evidence of record is against showing that the Veteran's left shoulder injury residual is related to service or his service-connected disability. In making this decision the Board notes that the Veteran is competent to report left shoulder problems and the circumstances surrounding such. The Board also acknowledges the Veteran's lay statements asserting that his shoulder issues started while in service and are associated with his service-connected right shoulder injury residual. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran's left shoulder injury residual, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). For the above reasons, the Veteran's claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. TDIU The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. For the Veteran to prevail in a claim for TDIU, the evidence must show that he is unable to pursue a substantially gainful occupation due to his service-connected disabilities. 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 the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Service connection is in effect for the following disabilities: a bilateral foot disability (rated 20 percent disabling); bilateral tinea pedis (rated 10 percent disabling); and right shoulder injury residual (rated 10 percent disabling). The Veteran's combined disability rating is 50 percent. He is thus not eligible for entitlement to a TDIU on a schedular basis, because there is no single disability rated 60 percent, and the ratings do not combine to 70 percent. Entitlement to a TDIU is warranted under 38 C.F.R. § 4.16(b) regardless of the Veteran's disability ratings where the service-connected disabilities alone render him unemployable. The Board cannot grant a total disability rating based on individual unemployability under 38 C.F.R. § 4.16(b) in the first instance, but must consider whether a remand for the AOJ to refer the case to the Director of Compensation Service is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). For the following reasons, the Board finds that a remand to refer is not warranted. The Board initially observes that it does not appear that the Veteran has ever submitted or completed VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Nevertheless, the Board will proceed with the claim and review any work history in the record, as well as the findings of any pertinent VA examinations and/or other treatment records. The Veteran was afforded several VA examinations in October 2014. According to the VA foot examiner, the Veteran's bilateral foot disability could interfere with physical or sedentary jobs due to pain and difficulty walking. Additionally, the VA shoulder examiner stated that the Veteran's right shoulder injury could impact any jobs that require lifting or reaching out. The Veteran underwent another VA shoulder examination in July 2017. The Veteran indicated that he used to work in a store and helped stock items. Notably, the Veteran stated that he presently works as a haircutter, but his medical conditions have caused him reduce his work to only a few hours per week. The Board observes that the Veteran has received some Vocational Rehabilitation and Employment (VRE) treatment, but this apparently stopped around February 2017 because the Veteran failed to report to his appointments. The Veteran's VRE records document some of the Veteran's prior work history. Particularly, a March 2015 report reveals that the Veteran was volunteering on a regular basis at a nearby church. Moreover, according to one of his resumes of record, he listed a long work history, with stints as an inspector (January 2003-October 2005), security officer (October 2006-June 2009), shipping and receiving clerk (June 2009-April 2012), warehouse specialist (April 2012-May 2013), barber (May 2013-May 2014), and housekeeper (May 2014-Present). The above evidence reflects that the Veteran's service-connected disabilities alone have not rendered the Veteran unable to obtain and maintain substantially gainful employment. The record shows that the Veteran continues to complain of foot pain and difficulty standing or walking, as well as pain in his right shoulder that could restrict his movement and ability to lift heavy objects. The Board has also considered the Veteran's lay assertions. However, the evidence shows a substantial and detailed work history, with steady employment since at least May 2014. Moreover, according to a February 2017 VRE report, the Veteran was a church volunteer. Furthermore, at the Veteran's most recent and pertinent July 2017 VA examination, he stated that while his shoulder problems caused him to limit his hours, he continued to work as a haircutter. After considering the totality of the record, the Board finds that the preponderance of the evidence reflects that the Veteran's service-connected disabilities alone have not precluded him from obtaining and maintaining substantially gainful employment. The benefit of the doubt doctrine is thus not for application and the claim must therefore be denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for a left shoulder injury residual, to include as secondary to a right shoulder injury residual is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs