Citation Nr: 18141569 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 15-13 210 DATE: October 11, 2018 ORDER Entitlement to an effective date earlier than February 11, 2014, for the grant of service connection for a left shoulder disability, is dismissed Entitlement to a disability rating higher than 10 percent prior to February 1, 2016, and higher than 20 percent beginning February 1, 2016, for a left shoulder disability, is dismissed. Entitlement to an effective date earlier than February 1, 2013, for the grant of a 40 percent disability rating for a right shoulder disability, is dismissed. Entitlement to an effective date earlier than October 7, 2011, for the grant of a 50 percent disability rating for sleep apnea, is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to promulgation of a decision in the appeal, the Veteran withdrew his appeal with respect to all of the issues listed above, other than the issue of entitlement to a TDIU. 2. The Veteran has met the threshold percentage requirements and the evidence is at least in equipoise as to whether he is unable to maintain any form of substantially gainful employment consistent with his education and occupational background as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran, as to all issues other than entitlement to a TDIU, have been met. 38 U.S.C. 7105(b)(2), (d)(5) (2012); 38 C.F.R. 20.202, 20.204 (2017). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. 3.102, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty in the United States Army from January 1986 to April 1986, January 1991 to April 1991, January 2003 to December 2004, and October 2007 to December 2008, with additional service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs). In July 2018, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Withdrawn Claims The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 U.S.C. 7105 (2012); 38 C.F.R. 20.202, 20.204(b) (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. At his July 2018 hearing before the undersigned Veterans Law Judge, the Veteran and his representative unambiguously communicated the Veteran’s desire to withdraw his appeal with respect to all issues on appeal other than the issue of entitlement to a TDIU. Based on the foregoing, the Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. As such, the Board does not have jurisdiction to review the appeal, and the claims, other than for entitlement to a TDIU, are dismissed. Entitlement to a TDIU It is the established policy of VA that all 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 (2017). A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. 3.340(a)(1), 4.15 (2017). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. 3.341, 4.16, 4.19 (2017). TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. 3.340, 3.341, 4.16 (2017). Service connection is in effect for sleep apnea, rated as 50 percent disabling, a right shoulder disability, rated as 40 percent disabling, and a left shoulder disability, rated as 20 percent disabling. The Veteran’s combined evaluation is 80 percent. As such, the Veteran has satisfied the schedular criteria for a TDIU under 38 C.F.R. 4.16 (a). After consideration of the record, and having resolved all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities, particularly his right shoulder disability, have rendered him unable to maintain any form of substantially gainful employment consistent with his education and occupational background. The record shows the Veteran was last employed in approximately April 2011 as a relief driver with a distribution company. His highest level of education attained was graduation from high school. In an April 2013 statement, the Veteran asserted he could not lift or use his right arm, and, as such, had not been able to find full-time employment. Also in April 2013, the Veteran was afforded a VA examination. Upon examination, the examiner indicated functioning of the Veteran’s right shoulder was so diminished that amputation with prosthesis would equally serve him. The examiner stated that the Veteran had no function in his right shoulder, and that it was so painful he could not move it in any direction. He also noted the Veteran had lost a lot of strength in the shoulder. Regarding the condition’s impact on the Veteran’s functioning and employability, the examiner stated the Veteran was unable to use his right shoulder for anything, could not move it in flexion, abduction, internal rotation, or external rotation due to too much pain, could not lift his arm from the side of his body, could lift only three to four pounds up to head level with his left shoulder, and could not sit for more than ten minutes without having to get up and move around because of his pain. The Veteran was also afforded a VA sleep apnea examination in April 2013. The examiner noted the Veteran had persistent daytime hypersomnolence. Regarding the condition’s impact on employability, the examiner stated the Veteran was sleepy all the time and could not stay awake at work, as he would fall asleep if he sat for more than a few minutes. In February 2015 statements, the Veteran’s sons and wife asserted that due to the Veteran’s right shoulder disability, they had to help him with daily tasks such as bathing, dressing, opening jars, preparing his food, mowing the lawn, and taking out the trash. In a May 2015 decision, the Social Security Administration (SSA) determined the Veteran was disabled due to his right shoulder disability. In December 2015, an Expert Independent Medical Review was completed by Dr. D.M., an orthopedist. Dr. D.M. performed a physical examination and indicated he had reviewed the Veteran’s claims file, VA examination reports, private medical records, relevant lay person statements, and medical treatises. In his report, Dr. D.M. extensively detailed the Veteran’s medical records, beginning in service. Dr. D.M. then noted that at the time of his examination of the Veteran, the Veteran’s forward flexion and abduction of the right shoulder were minimal before the onset of pain. He stated the Veteran had an irreparable rotator cuff tear and that total shoulder arthroplasty would be necessary in the future. Regarding the Veteran’s employability, Dr. D.M. indicated the Veteran would not be able to perform any labor-based or sedentary job simply because he was unable to use his dominant right upper extremity above the waist level or away from his body. In addition, Dr. D.M. stated there was no evidence the Veteran’s high school education and/or employment stocking shelves in the past would have given him crossover skills to perform a sedentary-type job. Ultimately, Dr. D.M. concluded the Veteran was unable to secure and maintain any form of substantially gainfully employment. In July 2018, a Vocational Assessment was completed by D.C., a Certified Rehabilitation Counselor. D.C. noted he had reviewed the Veteran’s claims file, service treatment records, post-service medical records and evaluations, third party statements, SSA records, work background information, and information obtained from personal interviews. D.C. noted the Veteran had a high school education, and that his limitations included difficulty reaching, holding, and grasping with the right arm, with less than ten percent functionality, in addition to only being able to lift three to four pounds to head level with his left arm, and needing to change positions between sitting, standing, and walking approximately every ten minutes. D.C. also noted the Veteran had an inability to stay awake due to his sleep apnea. D.C. determined that the Veteran’s restrictions resulted in his being reduced to a “less than sedentary” level of functioning. In this regard, D.C. stated that sedentary employment requires that an individual have at least frequent use of his bilateral upper extremities to reach, handle, and finger, and that the Veteran’s right upper extremity limitations alone would preclude work at this level. D.C. went on to state that full-time employment required an individual to be able to complete and sustain a forty-hour work week, to include sitting for significant periods, and that the Veteran’s need to change position at ten-minute intervals would not be appropriate, would be unacceptable to employers, and would further erode the occupational opportunities available to the Veteran. Ultimately, D.C. stated it was his opinion that the Veteran could not return to any past relevant work or to any other jobs in the economy due to his limitations. The foregoing clearly demonstrates that the Veteran’s right shoulder disability is severe and has significantly impacted his employability. The Veteran’s left shoulder disability and his sleep apnea have also resulted in limitations likely to impair employability. Upon review, the April 2013 VA examination report, the December 2015 report by a private orthopedist, and the July 2018 report by a rehabilitation counselor are all consistent with the Veteran’s accounts, as well as those of his immediate family members, regarding the severe nature of the impairment caused by his service-connected disabilities. The Board has carefully reviewed the record, and observes there is no medical or other expert evidence to refute the reports discussed above. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities are sufficiently severe as to render him unable to maintain any form of substantially gainful employment consistent with his limited education and occupational background. Accordingly, granting of a TDIU is in order. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel