Citation Nr: 1805335 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-23 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 1, 2016. 2. Entitlement to an increased rating for post-operative right shoulder chronic dislocation with degenerative joint disease (DJD). 3. Entitlement to service connection for an acquired psychiatric disorder (claimed as depression), to include as secondary to service-connected right shoulder disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. C. Wilson, Counsel INTRODUCTION The Veteran served on active duty from April 1961 to January 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that were issued in August 2010 and November 2013. In December 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The matter of the Veteran's entitlement to an increased rating for his post-operative right shoulder chronic dislocation with DJD and to a TDIU were previously before the Board in October 2014, at which time they were remanded for further development. As discussed below, the appeals as to these issues are dismissed and granted, respectively, and thus, discussion of VA's compliance with the directives of the previous remand is not necessary at this time. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand). The issue of the Veteran's entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In May 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his claim for an increased rating for post-operative right shoulder chronic dislocation with DJD is requested. 2. It is reasonably shown that the Veteran's service-connected right shoulder disability precluded him from securing or following a substantially gainful occupation during the period November 1, 2009, to July 21, 2015. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal concerning the Veteran's claim for an increased rating for post-operative right shoulder chronic dislocation with DJD have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for a grant of TDIU have been met during the period November 1, 2009, to July 21, 2015. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to an Increased Rating for a Right Shoulder Disability The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn his appeal with regard to his claim for an increased rating for post-operative right shoulder chronic dislocation with DJD and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal concerning this issue and it is dismissed. II. Entitlement to a TDIU prior to September 1, 2016 A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, and consideration is given to the veteran's background including employment and educational history. 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The Board notes that the United States Court of Appeals for the Federal Circuit held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). By way of background, the Veteran testified that he is right-hand dominant and is unable to work due to his right shoulder disability during his December 2012 Board hearing. In May 2016, the RO granted the Veteran's claim for a TDIU, effective from September 1, 2016. By way of background, VA received an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) on August 19, 2009, and the Veteran testified that he is right-hand dominant and is unable to work due to his right shoulder disability during his December 2012 Board hearing. In May 2016, the RO granted the Veteran's claim for a TDIU, effective from September 1, 2016. Thus, the Board finds that the issue before the Board is whether the Veteran is entitled to a TDIU from August 19, 2009, to August 31, 2016. During the relevant period, the Veteran has had service connection for a tender right shoulder surgical scar, total right shoulder arthroplasty, and post-operative right shoulder chronic dislocation with DJD. During that period, the Veteran's combined ratings were as follows: 100 percent from March 17, 2009; 40 percent from November 1, 2009; and 100 percent from July 22, 2015. As the Veteran had a rating less than total during the period from November 1, 2009, to July 21, 2015, and the combined evaluation was only 40 percent, the Board finds that the Veteran does not meet the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) during that period and will assess whether TDIU benefits are warranted under 38 C.F.R. § 4.16(b). Prior to the period on appeal, the Veteran was employed as a bus driver, but could not continue in that line of work due to recurrent dislocations of his right shoulder. See September 1999 VA treatment record. In the August 2009 Application for Increased Compensation Based on Unemployability, the Veteran reported that his right shoulder disability affected his full-time employment as an armed guard and security officer in February 2008, which was when he became too disabled to work and last worked full-time. On that form, he indicated that he completed high school and does not have additional education or training. During his December 2012 hearing, he indicated that he is not capable of re-qualifying on the shooting range, as he does not have enough strength in his right arm to hold a firearm in an upright position. VA occupational therapy notes dated in May 2009 and June 2009 document pain and dislocation, but also document improvement in the range of motion of the Veteran's shoulder, document an increase in his activity tolerance, and indicate that his level of pain was acceptable/manageable or that he did not desire evaluation/intervention. A July 2009 VA examination report documents symptoms such as pain, weakness, incoordination, decreased speed of joint motion, and swelling. In a June 2009 work status report, Dr. F. S. reported that the Veteran was unable to work after his March 2009 right shoulder surgery (glenoid resurfacing) and indicated that the Veteran would be totally temporarily disabled though at least September 2009. Similarly, in subsequent work status reports that are dated August 2009 to March 2010, Dr. F. S. indicated that the Veteran was unable to work at those times. In physical therapy evaluations dated from March 2010 to July 2010, non-VA physical therapist H. N. noted that the Veteran was making steady progress and indicated that the functional measures of the Veteran's progress, such as pain and degree of limitation, either remained the same or improved. Additionally, the report documents increases in the Veteran's strength and his range of motion. H. N. also reported, however, that the Veteran continued to experience problems reaching overhead and lifting, and the Veteran continued to report problems with functional activities. In July 2010, VA provided an examination during which an examiner noted the following symptoms: pain, deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, and inflammation. The Veteran was negative for joint ankylosis, but he did demonstrate decreased range of motion. The examiner concluded that the Veteran's right arm disability has "significant effects" on his usual occupation in light of his decreased mobility, decreased manual dexterity, problems with lifting and carrying, weakness or fatigue, decreased strength, and pain. In February 2016, a VA examiner reported that the Veteran's right shoulder condition limits his ability to perform any type of occupational task. The examiner explained that the Veteran has a reverse total shoulder replacement that is easier to dislocate than a normal shoulder and noted that his employability is very limited, as he has limited use of his right arm. Notably, the examiner indicated that the Veteran has limited ability for lifting, carrying, and loading. After careful review of the record, the Board finds that the July 2010 and February 2016 findings are consistent with reports of limitation of function throughout the appeal period. Thus, the Board resolves any doubt in the Veteran's favor and finds that his service-connected right shoulder disability prevented him from securing or following substantially gainful employment from November 1, 2009, to July 21, 2015. The appeal is granted. ORDER The appeal concerning the Veteran's entitlement to an increased rating for post-operative right shoulder chronic dislocation with DJD is dismissed. Subject to the applicable laws and regulations governing the payment of monetary benefits, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted for the period from November 1, 2009, to July 21, 2015. REMAND In November 2013, the RO denied the Veteran's claim for service connection for an acquired psychiatric disorder, and in September 2014, the Veteran filed a timely Notice of Disagreement (NOD) with the rating decision. To date, a Statement of the Case (SOC) has not been issued with regard to this matter. Where, as here, there has been an initial AOJ adjudication of a claim and an NOD as to its denial, the claimant is entitled to an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). In the absence of an SOC, the claim remains pending. See 38 U.S.C. § 7105(a) (2012). Thus, remand for issuance of an SOC on this issue is needed. Accordingly, the case is REMANDED for the following action: Issue a Statement of the Case regarding the issue of the Veteran's entitlement to service connection for an acquired psychiatric disorder and advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, return this issue to the Board for its review, as appropriate. The Veteran has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals 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. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs