Citation Nr: 1805465 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-27 099A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Bryan Held, Agent ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974, with 109 days of lost time during that period. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied entitlement to an increased rating for the Veteran's service-connected right shoulder disability. The Board previously found that the issue of TDIU was raised in connection with that claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The case was previously before the Board in August 2013, when it was remanded for additional development. The requested development has been completed. FINDINGS OF FACT 1. The Veteran's combined service-connected disability rating is 20 percent, which is from a single service-connected right shoulder disability. 2. The probative evidence of record indicates the Veteran's service-connected disability alone does not preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran claims he is unemployable as a result of his service-connected shoulder disability. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service connected for a right shoulder disability, the residuals of an avulsion-type fracture of the distal right clavicle with acromioclavicular separation, at a 20 percent disability rating. This is his only service-connected disability. This rating does not meet the percentage rating standards for consideration of TDIU. See 38 C.F.R. § 4.16(a). As the standards are not met, the Board cannot grant a TDIU in the first instance and instead will consider whether this case should be referred to VA's Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). Referral would require a showing that the Veteran is unemployable by reason of service-connected disabilities. Id. When the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Beaty v. Brown, 6 Vet. App. 532, 534 (1994) (considering Veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). That a veteran can no longer perform a particular job, however, is not dispositive of the issue. Rather, the criteria for a TDIU rating contemplate that a veteran's service-connected disabilities alone preclude him from securing or following all forms of substantially gainful employment. The Veteran has never filed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, nor provided detailed information related to his employment to VA. However, during VA examinations he has reported that he was employed as a muffler installer and then a truck driver and that he injured his back during employment and was disabled from working as a result of that post-service injury. An August 1976 application for VA education benefits indicates the Veteran has at least a high school degree; he appears to have been enrolled in some college courses around that timeframe as well. During an October 2010 examination the Veteran reported right shoulder pain, stiffness, weakness, and numbness. On examination right shoulder flexion was to 120 degrees, abduction to 130 degrees (but functional to 90 degrees due to pain), internal rotation to 40 degrees, and external rotation to 80 degrees. There was no change in range of motion after repetitions. There was no effusion, instability, abnormal movement, warmth, laxity, or atrophy, although he did have some decreased sensation. During a June 2016 examination the Veteran relayed that he experienced right shoulder pain. Examination revealed a normal range of motion of the shoulder, to include after repetitions. Right shoulder strength was normal. There was no history of recurrent separation of the shoulder. The examiner found that the right shoulder disability did not impact the ability to perform any occupational task nor impact the ability to maintain and obtain gainful employment. The examiner did indicate the Veteran could have problems with repetitive overhead use of the right upper extremity. In summary, the Veteran does not meet the schedular criteria for consideration of a TDIU and the preponderance of the evidence reveals that his service-connected right shoulder disability does not render him unable to obtain and maintain gainful employment; rather the evidence of record indicates that he is disabled from employment due to a nonservice-connected back disability. The Veteran has at least a high school degree and his service-connected disabilities at most limit the amount of overhead right shoulder work he can do. Such limitation would not cause a high school graduate to be precluded from obtaining and maintaining any type of gainful employment. Therefore, referral for entitlement to a TDIU on an extraschedular basis is not warranted. As such, the benefit of the doubt doctrine is inapplicable, and the claim for TDIU must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs