Citation Nr: 18150132 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-38 900A DATE: November 14, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of VA monetary benefits. FINDING OF FACT The evidence is at least evenly balanced as to whether service-connected disabilities caused unemployability. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for the award of a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to a TDIU. In October 2018, the Veteran had a Board hearing before the undersigned Veterans Law Judge at the local RO. The transcript from the hearing has not yet been associated with the file, but as the benefit sought is being granted in full, the transcript is not necessary for a decision in this case. In October 2018, the Veteran filed a service connection claim for an acquired psychiatric disability. This issue has not yet been adjudicated by the agency of original jurisdiction (AOJ). It is referred to the AOJ for appropriate action, to include providing the Veteran with the appropriate forms. See 38 C.F.R. §§ 19.9 (b) (providing for referral to AOJ of issues not yet adjudicated); 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits). Entitlement to a total disability rating based upon individual unemployability (TDIU). A TDIU 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 service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). From January 31, 2013, the Veteran is service-connected for multi-directional instability, right shoulder, with multiple dislocations (major), 40 percent; left shoulder strain with degenerative joint disease, 20 percent, tinnitus, 10 percent; calcified joint mouse, right knee 10 percent, and additional disabilities, rated as noncompensable. His combined rating is 70 percent throughout the claims period and he meets the schedular TDIU criteria. 38 C.F.R. § 4.16(a). In his February 2013, the Veteran filed a formal TDIU claim. He reported that he last worked in October 2010 at a private transportation security firm as a Transportation Security Administration (TSA) screener. He had completed high school and one year of college. Social Security Administration (SSA) disability records showed that the Veteran was considered disabled from August 2010 with a primary back disability and secondary osteoarthritis disability. A November 2013 VA shoulder examination report noted functional impairment of an inability to lift due to the service-connected right shoulder disability. An April 2014 private vocational evaluation included an opinion that the Veteran was unemployable due to his service connected shoulder disabilities. The vocational consultant reviewed the entire record and interviewed the Veteran over the phone. He identified the Veteran’s exertional limitations due to his bilateral shoulder disabilities as requiring frequent changes in position, periods of bilateral hand numbness, various functional impairments for both upper extremities and an inability to lift objects. He characterized these vocational limitations as significant. He opined they would preclude gainful employment for the Veteran. The December 2014 VA examination report included a negative TDIU opinion. The examiner described the Veteran as having an unusual bilateral shoulder disability presentation. He opined that bilateral shoulder osteoarthritis alone would not preclude employment. June 2015 a private physician furnished a letter in support of the Veteran’s disability license plate application. He indicated the Veteran was disabled due to permanent orthopedic disability. April 2017 VA shoulder examination included reports from the Veteran about difficulty grasping and dressing due to his service-connected bilateral shoulder disability. The examiner also detailed these limitations as inability to lift objects greater than five pounds and generally move the right hand and arm above waist level. The Veteran contends a TDIU is warranted and the Board agrees. In this case, there are only two opinions, the April 2014 private vocational evaluation and the December 2014 VA examination report, directly address TDIU. The April 2014 private vocational evaluation supports the claim. The private evaluator is well qualified, conducted a complete review of the record and provided a clear opinion. The opinion is plausible, and the Board considers it to be highly probative evidence supporting the claim. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). The rationale supporting the December 2014 TDIU opinion is conclusory. The VA examiner does not explain why she rejected the Veteran’s reports of functional limitations due to service-connected shoulder disabilities. Her reports of an unusual disability presentation are not found in other VA examination reports. Moreover, her opinion does reflect consideration of the Veteran’s occupational background in general labor. Id.; see also Withers v. Wilkie, No. 16-1543 (Vet. App. Aug. 10, 2018). Accordingly, the Board does not find unfavorable December 2014 TDIU opinion as persuasive as the April 2014 private vocational opinion. Id. In any event, the ultimate TDIU determination is made by VA adjudicators, rather than medical examiners. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). In light of the above, the Board resolves reasonable doubt in the Veteran's favor and finds that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As this is the benefit sought by the Veteran, further discussion is unnecessary. The Board will defer to the RO for assignment of the effective date in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel