Citation Nr: 1802682 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-38 827 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for brain cancer. 2. Entitlement to service connection for laryngeal cancer. 3. Entitlement to service connection for lung cancer. 4. Entitlement to a rating in excess of 10 percent for residuals of a gunshot wound (GSW) to the right shoulder before March 29, 2017, and to a rating in excess of 20 percent thereafter. 5. Entitlement to a compensable rating for residuals of a burn injury of the right hand. 6. Entitlement to a total disability rating based on individual unemployability as the result of service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: James J. Perciavalle, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his stepson ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the VA RO. A February 2007 rating decision continued the existing 10 percent rating for residuals of a GSW to the right shoulder (an August 2017 rating decision later increased the rating to 20 percent effective March 29, 2017) and denied a TDIU. A June 2010 rating decision granted service connection for depigmentation of the right hand and assigned a noncompensable rating. This appeal has previously been before the Board, most recently in February 2017, when it remanded the Veteran's claims of entitlement to increased ratings and a TDIU. As is discussed in greater detail below, the Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issues of entitlement to service connection for brain cancer, laryngeal cancer, and lung cancer are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's residuals of a GSW to the right shoulder result in no worse than moderate injury to Muscle Group III. 2. The Veteran's residuals of a burn injury to the right hand do not result in scarring or functional loss. 3. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. Before March 29, 2017, the criteria for a rating of 20 percent, but no greater, for residuals of a GSW to the right shoulder have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5303 (2017). 2. Since March 29, 2017, the criteria for a rating in excess of 20 percent for residuals of a GSW to the right shoulder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5303 (2017). 3. The criteria for a compensable rating for residuals of a burn injury to the right hand have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). 4. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, the Veteran was provided with all appropriate notification in August 2006 and March 2017. The Veteran has not otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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). Thus, adjudication of the Veteran's claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's post-service medical treatment records have been obtained, to the extent they were both identified and available. The Veteran has been provided with examinations addressing his claimed disabilities. The Board finds that the examiners reviewed the Veteran's claims file and past medical history, noted his current complaints, and rendered appropriate opinions consistent with the remainder of the evidence of record. In sum, the Board finds that the medical evidence of record is adequate for the purpose of rendering a decision. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In December 2011, the Veteran participated in a hearing before a Veterans Law Judge (VLJ), and a transcript of this hearing has been associated with the record. In October 2017, the Veteran was informed that the VLJ who conducted this hearing was no longer employed by the Board, and he was offered the opportunity to attend another Board hearing. The Veteran was advised that if he did not respond within 30 days, the Board would assume he did not want to participate in an additional Board hearing. To date, the Veteran has not responded to this letter. Accordingly, the Board will proceed with the adjudication of the issues on appeal. The Board finds that there is no indication that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Increased Ratings Generally Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2017). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2017); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same disability or the same manifestations of a disability under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2017). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2017). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2017). The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Increased Rating for Residuals of a GSW to the Right Shoulder Before March 29, 2017, the Veteran's right shoulder disability is rated 10 percent disabling under Diagnostic Code 5301, applicable to impairment of Muscle Group I. Since March 29, 2017, the Veteran's right shoulder disability is rated 20 percent disabling under Diagnostic Code 5303, applicable to impairment of Muscle Group III. The Veteran claims that his right shoulder disability warrants greater ratings. As an initial matter, in February 2017, the Board denied the Veteran's claim of entitlement to service connection for a nerve impairment of the right hand, to include as secondary to the Veteran's service-connected residuals of a GSW to the right shoulder. Thus, the Board's analysis will not address such symptoms in this discussion of the appropriate rating of the Veteran's right shoulder disability. The Veteran's right shoulder is his non-dominant, or minor, extremity. Diagnostic Code 5301, applicable to Muscle Group I, includes the extrinsic muscles of the shoulder girdle, including the trapezius, levator scapulae, and serratus magnus. Under this Diagnostic Code, a 10 percent rating is warranted for moderate disability of the non-dominant extremity, a 20 percent rating is warranted for moderately severe disability of the non-dominant extremity, and a 30 percent rating is warranted for severe disability of the non-dominant extremity. 38 C.F.R. § 4.73, Diagnostic Code 5301. Diagnostic Code 5303, applicable to Muscle Group III, includes the intrinsic muscles of the shoulder girdle, including the pectoralis major I (clavicular) and deltoid. Under this Diagnostic Code, a 20 percent rating is warranted for moderate or moderately severe disability of the non-dominant extremity, and a 30 percent rating is warranted for severe disability of the non-dominant extremity. 38 C.F.R. § 4.73, Diagnostic Code 5303. A moderate muscle disability results from a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. The veteran manifests consistent complaints of one or more of the cardinal signs and symptoms of a muscle disability, particularly a lowered fatigue threshold. Some loss of deep fascia or muscle substance or impairment to muscle tonus and loss of power or lowered threshold of fatigue is expected. Objective findings are entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue, and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe muscle disability results from a through-and-through or deep penetrating wound with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Records should indicate hospitalization for a prolonged period for treatment of the wound and consistent complaints of cardinal signs and symptoms of muscle disability with evidence of an inability to keep up with work requirements. A moderately severe disability also requires indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side; and tests of strength and endurance compared with the sound side demonstrating positive evidence of impairment. 38 C.F.R. § 4.56 (d)(3). A severe muscle disability results from through-and-through or deep penetrating wound with extensive debridement, prolonged infection, sloughing of soft parts, and intermuscular scarring and binding. It requires ragged, depressed and adherent scars; loss of deep fascia or muscle substance or soft flabby muscles in the wound area; and severe impairment on tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side. 38 C.F.R. § 4.56 (d)(4). The cardinal signs and symptoms of muscle disability are loss of power, leg weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56. Turning to the facts in this case, by way of history, on February 23, 1975, the Veteran sustained a close-range GSW to the right shoulder as the result of an accidental discharge while cleaning a .45 caliber pistol. Emergency room records indicate that the Veteran did not lose consciousness, nor did he lose a large amount of blood. The emergency room clinician observed two GSWs: a 0.5" diameter wound over the superior aspect of the right scapula, and a 1" diameter wound over the mid-right clavicle. The Veteran was admitted for observation. A February 24, 1975 x-ray showed an avulsion-type fracture involving the inferior aspect of the distal clavicle. The Veteran's March 7, 1975 discharge record indicated that the Veteran suffered a through-and-through GSW with an entrance and exit through the right shoulder anterior to posterior. The clinician noted that "miraculously", the bullet missed all vital structures in the area except for a small chip fracture of the scapula and clavicle. Neither of these injuries, however, "had any consequence". The Veteran's neurovascular system was intact. The Veteran's wounds had been debrided, and his arm had been placed in a sling. The Veteran underwent routine dressing changes and did not show signs of infection. The Veteran's wounds were closed but had not yet fully epithelialized. The Veteran had some pain on full abduction of the right upper extremity, but he had a full range of motion and did not need further hospitalization. The Veteran's prognosis was excellent. The Veteran was assessed with a healing through-and-through GSW of the right shoulder, and he was discharged to light duty status as of March 10, 1975. In the Veteran's September 1977 separation examination, it was noted that the Veteran had a scar from a GSW of the right shoulder, but the Veteran's upper extremities were otherwise noted to be normal. Following service, the Veteran filed his claim of entitlement to an increased rating in July 2006, at which time the Veteran complained of pain in his right shoulder. The Veteran underwent a VA examination in January 2007, at which time the Veteran complained of a dull, achy pain in his right shoulder. The Veteran indicated that he experienced pain most mornings for about an hour, with the pain of a 4-8/10 severity. Lifting and working with the right arm aggravated his right shoulder pain. Upon physical examination, the right shoulder displayed normal symmetry, muscle bulk, and tone, and there were no specific trigger points. The Veteran had forward flexion to 180 degrees, abduction to 150 degrees (with pain at 140 degrees), external rotation to 85 degrees, and internal rotation to 80 degrees. The Veteran's right shoulder disability did not affect his activities of daily living. The examiner diagnosed the Veteran with chronic right shoulder arthralgia without degenerative changes or foreign bodies post-GSW. An x-ray of the right shoulder was normal. In March 2010, the Veteran had normal right shoulder strength. The Veteran underwent an additional VA examination in April 2013, at which time the examiner diagnosed the Veteran with a mild, painful muscle injury to the right shoulder status-post GSW. The examiner noted that the Veteran did not complain of pain in the right shoulder upon examination. The Veteran had a good range of motion in the right shoulder and normal strength without muscle atrophy. The examiner noted that the Veteran had experienced a mild injury to Muscle Group I, the extrinsic muscles of the right shoulder girdle, to include the trapezius, levator scapulae, and serratus magnus with residual pain. The Veteran had no associated fascial defects, and the muscle injury did not affect the muscle substance or function. The Veteran had no cardinal signs and symptoms of muscle disability. A February 2016 radiograph of the right shoulder showed a small subacromial spur. A February 2016 x-ray showed mild narrowing and spurring of the right glenohumeral joint. A clinician noted that the Veteran had slightly limited internal rotation and adduction of the right shoulder. The Veteran had normal muscle strength of the right shoulder. In July 2016, the Veteran had right shoulder flexion to 150 degrees, abduction to 90 degrees, and full extension. Hawkin's test and the scarf test were normal. Yokum's test and Neer's sign were positive. There was no weakness of the subscapularis or infraspinatus, but there was pain with activation. In October 2016, a clinician noted that the Veteran did not have any myalgias, arthralgias, edema, or weakness. The Veteran had a good range of motion in all extremities. The Veteran underwent an examination addressing the orthopedic manifestations of his right shoulder disability in March 2017, at which time the Veteran complained of increasing 5/10 pain in his right shoulder with off-and-on flare-ups. The Veteran stated that he could not raise his right arm at the shoulder joint. The Veteran had flexion to 100 degrees with pain, abduction to 90 degrees with pain, external rotation to 60 degrees with pain, and internal rotation to 70 degrees. There was no evidence of pain with weight-bearing, and there was no ankylosis. Repetitive use testing did not result in additional limitation of motion or functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint of the right shoulder and acromioclavicular joint. There was no objective evidence of crepitus. The right shoulder had normal muscle strength without atrophy. The Hawkin's impingement test, empty-can test, external rotation/infraspinatus strength test, and lift-off subscapularis test were all positive. There was no shoulder instability, dislocation, or labral pathology. The Veteran had tenderness on palpation of the acromioclavicular joint, and the cross-body adduction test was positive. There was no loss of humeral head, nonunion, malunion, or fibrous union of the humerus. Diagnostic testing showed a normal right shoulder. The Veteran underwent an examination addressing the muscular manifestations of his right shoulder disability in June 2017, at which time the examiner diagnosed the Veteran with mild weakness of Muscle Group III of the right shoulder. The examiner noted that the Veteran had a penetrating muscle injury. The Veteran had no fascial defects, and his muscle injury did not affect muscle substance or function. The Veteran had no cardinal signs and symptoms of muscle disability. The Veteran had less than normal strength for right shoulder abduction. Electrodiagnostic testing showed "equivocal evidence" of diminished muscle excitability to pulsed electrical current. Turning to an analysis of these facts, as an initial matter, the Board notes that clinicians have characterized the Veteran's injury as affecting either Muscle Group I, applicable to the extrinsic muscles of the shoulder girdle (for example in April 2013) or Muscle Group III, applicable to the intrinsic muscles of the shoulder girdle (for example in June 2017). Before March 29, 2017, the Veteran's right shoulder disability was rated 10 percent disabling under Diagnostic Code 5301, applicable to a moderate impairment of Muscle Group I. Since March 29, 2017, the Veteran's right shoulder disability has been rated 20 percent disabling under Diagnostic Code 5303, applicable to a moderate impairment of Muscle Group III. Thus, the Board notes that the AOJ increased the rating of the Veteran's right shoulder from 10 percent to 20 percent based not on a worsening of the Veteran's symptoms, but on a recharacterization of the location of his muscle injury. For clarity, and given that the muscles affected by the Veteran's GSW did not change on March 29, 2017, the Board finds that a single 20 percent rating should apply throughout the appeal, applicable to a moderate impairment of Muscle Group III. With a single 20 percent rating established throughout the appeal, the Board notes that a greater rating based on impairment of either Muscle Group I or Muscle Group III requires a severe impairment of muscle function. As noted above, a severe injury of the muscles is associated with extensive debridement, prolonged infection, sloughing of soft parts, and intermuscular scarring and binding. While the Veteran's muscle injury required in-service debridement, such debridement was not noted to be "extensive". Furthermore, the Veteran's injury did not result in infection, sloughing of the soft parts, or intermuscular scarring and binding. The Board thus finds that the Veteran's injury is inconsistent with the type of injury contemplated by a severe injury to the muscles. Similarly, the Veteran's injury history is inconsistent with the history associated with a severe disability of the muscles. The Veteran was hospitalized for 12 days following his injury, which the Board finds not to be a "prolonged period" of hospitalization associated with a severe muscle injury. Indeed, in-service treatment of the Veteran's right shoulder indicated that he had an "excellent" prognosis with a "miraculous" lack of injury to vital structures. Furthermore, clinicians have not found that the Veteran consistently suffers from the cardinal signs and symptoms of muscle disability with evidence of an inability to keep up with work requirements. The Board thus finds that the history of the Veteran's muscle injury is inconsistent with the history contemplated by a severe injury to the muscles. The Veteran's muscle injury is also inconsistent with the objective findings associated with a severe disability of the muscles. Clinicians have not found the Veteran's scars to be ragged, depressed, or adherent. The Veteran has not shown a loss of deep fascia, a loss of muscle substance, or soft flabby muscles in the wound area. Indeed, the Veteran has retained muscle strength in his right shoulder. Clinicians have not noted a severe impairment on tests of strength, endurance, or coordinated movements in the right shoulder. In sum, the Veteran's muscle injury has not resulted in severe symptoms, and a rating in excess of 20 percent is unavailable to the Veteran at any time based on muscle impairment. The Board will next turn to the question of whether greater ratings are available based on impairment of the shoulder and arm. Diagnostic Code 5200, applicable to ankylosis of the scapulohumeral articulation, does not apply because the Veteran has not demonstrated ankylosis of the right shoulder at any time. Under Diagnostic Code 5201, applicable to a limitation of motion of the arm, in pertinent part, a 30 percent rating applies to limitation of motion of the arm to 25 percent from the side for the minor extremity. 38 C.F.R. § 4.71a (2017). At no time, however, has the Veteran showed a limitation of motion of the right shoulder to 25 percent from the side, as would be associated with a rating in excess of 20 percent. Instead, at worst, the Veteran has demonstrated an impairment of motion to shoulder-level; this limitation of motion is not associated with a rating greater than the 20 percent rating that has already been assigned to the Veteran's right shoulder injury. A greater rating based on limitation of motion is thus unavailable. In reviewing the evidence, the Board considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered the effects of weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45 (2017). The Board accepts the Veteran's competent and credible assertions that his right shoulder disability causes him to experience pain, and the Veteran has been awarded with his current rating for impaired muscle function based in part on those assertions. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Diagnostic Code 5202, applicable to impairment of the humerus, does not apply because the Veteran has not shown symptoms such as malunion, recurrent dislocation, fibrous union, nonunion, or loss of head of the humerus. Diagnostic Code 5203, applicable to impairment of the clavicle or scapula, does not apply because the Veteran has not shown malunion, nonunion, or dislocation of the clavicle or scapula. In sum, the Board, for clarity, awards the Veteran with a single 20 percent rating for residuals of a GSW to the right shoulder throughout the period on appeal. Increased Rating for Residuals of a Burn Injury of the Right Hand The Veteran is in receipt of a noncompensable evaluation under Diagnostic Code 7805, applicable to "other" scars. The Veteran contends that he is entitled to a compensable rating. As an initial matter, in February 2017, the Board denied the Veteran's claim of entitlement to service connection for a nerve impairment of the right hand, to include as secondary to the Veteran's service-connected depigmentation of the right hand. Thus, the Board's analysis will not address such symptoms in its discussion of the appropriate rating of the Veteran's residuals of a burn injury to the right hand. Turning to the facts in this case, the Veteran filed his underlying claim of entitlement to service connection for residuals of a burn injury to the right hand in July 2006. The Veteran underwent a VA examination in March 2010, at which time the examiner noted that the Veteran had a mild lighter skin tone or paleness on the posterior hand, which was apparent only on close inspection. The nails and hair growth were normal, and scarring was not deep. There was no pain, skin breakdown, limitation of function, edema, inflammation, keloid formation, adherence, depression, elevation, induration, inflexibility, or underlying soft tissue loss. The texture of the skin was smooth with no irregularity, roughness, or thinning. The Veteran had not received any treatment for his hand disability. The Veteran underwent an additional VA examination in April 2013, at which time the examiner noted that the Veteran had suffered a right hand burn that had resolved without residuals or scarring. The Veteran denied having any pain in the burn area. There was no visible scarring, hair loss, skin discoloration, or limitation of function. The Veteran underwent an additional VA examination in June 2017, at which time the examiner observed no scarring, discoloration, or depigmentation of the right hand. Turning to an analysis of these facts, the Board notes that since the Veteran's July 2006 claim, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, was amended effective October 23, 2008. 73 Fed. Reg. 54,708 (Sept. 23, 2008). This amendment is to be applied to pending claims only when specifically requested by the Veteran, which does not appear to have been done in this case. In evaluating the Diagnostic Codes potentially applicable to the Veteran's residuals of a burn injury to the right hand, the Board notes that Diagnostic Code 7800 does not apply because such residuals do not involve the head, face, or neck. Diagnostic Code 7801 does not apply because the residuals of a burn injury to the right hand are not deep and do not cause limited motion. A compensable rating is unavailable under Diagnostic Code 7802 because while the residuals of a burn injury to the right hand are superficial and do not cause limited motion, they do not involve an area of 144 square inches or greater, as is required for a compensable rating. Diagnostic Code 7803 does not apply because the residuals of a burn injury to the right hand are stable. Diagnostic Code 7804 does not apply because the residuals of a burn injury to the right hand are not painful on examination. A compensable rating is unavailable under Diagnostic Code 7805 because the Veteran's residuals of a burn injury to the right hand do not result in a limitation of function. In sum, a compensable evaluation of the Veteran's residuals of a burn injury to the right hand is unavailable. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Employment may be marginal even when the Veteran's earned income exceeds the poverty threshold if the Veteran is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). The determination as to whether a TDIU is appropriate is not 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. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Any consideration as to whether the Veteran is unemployable is a subjective one that is based upon the Veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Advancing age and nonservice-connected disability may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. Instead, 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If, as in this case, there are two or more service-connected disabilities, one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). When, as here, these percentage requirements are not met, entitlement to benefits may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an total disability rating for compensation purposes based on individual unemployability pursuant to 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Turning to the facts in this case, by way of history, the evidence indicates that the Veteran completed a high school education. The Veteran engaged in a variety of jobs, including as a laborer and a driver. The Veteran last worked as a truck driver in December 2003, at which time he was laid off. In the Veteran's May 2004 application for disability benefits from the SSA, the Veteran stated that his heart disability and high blood pressure prevented him from working beginning in February 2004. In an August 2006 application for a TDIU, the Veteran stated that his right shoulder and right hand prevented him from securing or following any substantially gainful occupation. In January 2007, an examiner found that the Veteran was not suitable for any jobs requiring physical labor because of his right shoulder pain, with overhead work aggravating his shoulder pain. In April 2013, an examiner found that neither the right shoulder injury nor the right hand burn residuals had an impact on the Veteran's ability to work. In March 2017, the Veteran stated that "silent" heart attacks, cancer, and his right shoulder disability prevented him from securing or following any substantially gainful occupation. In June 2017, an examiner found that the Veteran's right shoulder injury did not impact his ability to work. Turning now to a review of this evidence, as noted above, the question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. In other words, the Board is not bound by any particular opinion in making this assessment, but it must instead consider the probative value of the entirety of the evidence of record to determine whether the Veteran is capable of substantially gainful employment. A thorough review of the record indicates that the Veteran's service-connected disabilities alone do not prevent him from securing and following a substantially gainful occupation. The Veteran himself has only inconsistently advanced such an argument. In May 2004, the Veteran argued to the SSA that it was his heart disability and high blood pressure (neither of which are service-connected) that prevented him from working. In March 2017, the Veteran argued that the combined effects of his heart attacks, cancer, and right shoulder injury, prevented him from working (neither heart attacks nor cancer are service-connected). While the Veteran indeed stated in his August 2006 application for a TDIU that only his right shoulder disability and right hand disability prevented him from working, such a statement lacks credibility given the contrary statements that he made before and after this time. Thus, it is unclear from the record whether the Veteran himself believes that his service-connected disabilities, acting alone, render him unable to secure and following a substantially gainful occupation. Similarly, the weight of the medical evidence of record is against such a finding. While a January 2007 examiner opined that the Veteran was unsuitable for employment involving physical labor as a result of his right shoulder injury, the examiner did not opine that the Veteran was unable to perform sedentary labor. Furthermore, clinicians in April 2013 and June 2017 found that the Veteran's right shoulder injury did not impact his ability to work at all, whether in a physical or sedentary setting. The Board must also note that the Veteran has consistently, upon examination, shown that he retains strength in the right shoulder without cardinal signs of muscle disability. While the Veteran complained of an inability to lift his arm above the shoulder level as a result of pain, the Board cannot find that such a restriction renders him unable to secure or follow a substantially gainful occupation. Thus, the medical evidence is inconsistent with a finding that the Veteran's service connected disabilities preclude him from securing or following a substantially gainful occupation. Instead, the Board finds that the weight of the evidence shows that the Veteran's disabilities do not preclude him from securing or following a substantially gainful occupation, particularly a substantially gainful sedentary occupation. The Veteran's available work history suggests that he has held both physical positions (for example, as a laborer) and more sedentary positions (for example, as a truck driver). The Board cannot find that sedentary work is inconsistent with the Veteran's previous work history. Furthermore, the Veteran's education level, which indicates that he completed a high school education, supports a finding that the Veteran is not precluded from securing or following a substantially gainful sedentary occupation. In summary, the Board finds that the weight of the evidence is against the Veteran's claim that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board does not doubt that the Veteran's service-connected disabilities have some effect on his employability, as evidenced by the existing ratings of such disabilities. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, upon a thorough review of the evidence of record, the Board finds that the Veteran is not precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. This case need not be referred to the Director of Compensation and Pension Service for extraschedular consideration of a TDIU. As such, the benefit of the doubt doctrine is inapplicable, and the claim for TDIU must be denied. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Before March 29, 2017, a rating of 20 percent, but no greater, for residuals of a GSW to the right shoulder is granted, subject to the laws and regulations governing the award of monetary payments. Since March 29, 2017, a rating in excess of 20 percent for residuals of a GSW to the right shoulder is denied. A compensable rating for residuals of a burn injury of the right hand is denied. A TDIU is denied. REMAND In June 2017, the RO denied the Veteran's claims for service connection for brain cancer, laryngeal cancer, and lung cancer. In September 2017, the Veteran submitted a statement disagreeing with this decision. As yet, a statement of the case does not appear to have been issued, and it is therefore proper to remand these issues to ensure that the Veteran is provided with a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, these issues should be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Issue a statement of the case addressing the Veteran's claims for service connection for brain cancer, laryngeal cancer, and lung cancer. The Veteran should be informed of the period of time within which he must file a substantive appeal to perfect an appeal of these issues to the Board. If a timely substantive appeal is not filed, the claims should not be certified to the Board. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs