Citation Nr: 18144974 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-02 953 DATE: October 25, 2018 ORDER Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disability does not preclude substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1980 to October 1987 with additional service in the Army Reserves. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). On his substantive appeal (VA Form 9), the Veteran requested a hearing; however, he requested to cancel the hearing in signed correspondence dated August 2014. In January 2016 decision, the Board denied the appealed claim. The Veteran timely appealed to the Court of Veterans Appeals. In August 2016, the Court granted a joint motion for remand (JMR) vacating the January 2016 Board decision and remanding the claim for additional development consistent with the JMR. In December 2016, the Board remanded the claim, to include obtaining Social Security Administration (SSA) records and referral to the Director of VA’s Compensation and Pension Service or the Under Secretary for Benefits. The Board finds there has been substantial, if not full, compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97 (2008). That development has been completed and the Veteran’s claim has been returned to the Board for further appellate consideration. TDIU Total disability ratings for compensation based on individual unemployability 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 a result of a single service-connected disability ratable at 60 percent or more; or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran is service connected for muscular tear right scapula of the right shoulder, currently rated as 20 percent disabling. Initially, the Board notes that the Veteran does not meet the threshold criteria for TDIU on a schedular basis and that the Director denied entitlement to TDIU on an extraschedular basis in January 2018. Accordingly, the central inquiry “is whether the [V]eteran’s service-connected disabilities alone are of sufficient severity to produce unemployability” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (emphasis added). The Veteran contends that he is unemployable due to his right shoulder disability. On his claim for TDIU dated January 2010, the Veteran reported he became too disabled to work in January 2005. He last worked as a commercial driver from 2004-2005 and he had been looking for work to no avail. He reported two years of college with no other additional education or training. An October 2012 VA examiner reported that despite the Veteran’s service-connected right shoulder disability and nonservice-connected back and neck disabilities, the Veteran could obtain and maintain a job requiring semi-sedentary work with restrictions, such as no prolonged standing, walking, or climbing and lifting more than 20 pounds. The examiner recommended the Veteran undergo an ergonomic evaluation and receive several breaks during the day to stand up. In an October 2012 mental health note, the Veteran stated he had great emotional problems that prevented him from working for six years. Later that month, during a mental disorders VA examination, the Veteran reported that he had “a very poor [employment] history” due to inability to tolerate pressure, irritability, and explosive anger. Based on the Veteran’s history, “feelings of worthlessness, helplessness, and hopelessness,” and “personality features,” the examiner determined the Veteran was a very poor candidate for employment, unless accommodations were provided to address his psychiatric symptoms. March 2016 VA treatment records show the Veteran complained of recurrent episodes of shoulder pain when lifting his arms; however, he described no radiation of pain or weakness/paresthesias. A subsequent August 2016 VA treatment record shows the Veteran’s shoulder pain had resolved. The Board notes that although the August 2016 JMR indicated that evidence of record shows the Veteran had previously applied for and was denied SSA benefits, a January 2017 response from SSA indicates there were no medical records on file for the Veteran. During a January 2017 VA examination, the Veteran complained of daily right shoulder pain and discomfort, which radiated to his neck and prevented him from pulling. He reported he only performed light activity around his house and avoided all strenuous activity that involved pushing, pulling, or lifting with his right arm. The examiner reported that the Veteran was limited in pulling and carrying heavy objects that weigh 20 or more pounds or doing activities that required rapid right upper extremity pulling or lifting. The examiner noted the Veteran had no frequent periods of hospitalizations for the service-connected right shoulder disability. In January 2018, the Director opined that the “Veterans (sic) disability does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” After considering the evidence of record in this case, the Board finds the Veteran’s service-connected right shoulder disability did not render him unable to secure or follow a substantially gainful occupation. While there is some evidence that shows the Veteran’s ability to work would be impacted, the weight of the evidence shows that the Veteran is capable of work despite his service-connected right shoulder disability. For example, the Veteran has related his unemployability to nonservice-connected psychiatric disorders and VA examiners report that he is able to maintain employment (even in consideration of nonservice-connected disabilities) with restrictions. The Board places a great deal of probative weight on the October 2012 and January 2017 VA examinations, as they represent competent medical evidence regarding the severity of the Veteran’s right shoulder disability and the occupational impairment it causes. The VA examiners considered the Veteran’s entire history when rendering the unfavorable opinions, including both the documented medical history in the record, as well as the Veteran’s lay statements; the opinions are well-reasoned, and based on sound medical principles. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). All competent medical evidence weighs against the Veteran’s contention that his service-connected disability impairs his occupational function enough to entitle him to TDIU. As the preponderance of the evidence is against the claim for entitlement to a TDIU rating, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. See 38 U.S.C. §§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel