Citation Nr: 1807412 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-10 930A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residual pain status post torn left rotator cuff of the left shoulder, to include as secondary to service-connected low back disability. 2. Entitlement to service connection for degenerative joint disease of the cervical spine, to include as secondary to service-connected low back disability. 3. Entitlement to a total disability rating based on individual unemployabililty (TDIU). REPRESENTATION Veteran represented by: Douglas Friedman, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Lewis, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1996 to November 1996 and from May 2000 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran filed a Notice of Disagreement (NOD) in May 2011 and a Statement of the Case (SOC) was issued in March 2014. The Veteran filed his Substantive Appeal via a VA Form 9 in April 2014. Thus, the Veteran perfected a timely appeal of the issues. In April 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file. The issues of entitlement to service connection for residual pain status post torn left rotator cuff of the left shoulder and entitlement to service connection for degenerative joint disease of the cervical spine are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation consistent with his education and occupational experiences. CONCLUSION OF LAW The criteria for the assignment of TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As the Board's decision to grant the Veteran's claim of entitlement to a total disability rating based on individual unemployabililty is completely favorable, no further action is required to comply with the VCAA and its implementing regulations. II. TDIU Legal Criteria A total disability rating for compensation purposes 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 service-connected 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to benefits 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, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factual Background and Analysis At the outset, the Board notes that the Veteran submitted a VA Form 21-8940, Application for Increased Compensation based on Individual Unemployability in September 2009. On that form he detailed his work history as discussed in greater detail below. He noted that he had attended Alabama State Fire College where he underwent 40 hours of first responder training and 160 hours of volunteer firefighter training from January 1998 to June 1998. He also reported participation in a VA vocational rehabilitation program. The Veteran indicated that he had not attempted to obtain new employment since his last date of employment. He also remarked that he could not drive a truck because of his service connected disabilities. See VA Form 21-8940. The Veteran did not sign the September 2009 VA Form 21-8940. The RO sent the Veteran a letter in May 2010 indicating that the application was incomplete and unsigned. The Veteran did not respond to that letter and the RO subsequently denied his TDIU claim. At his Board hearing, the Veteran did not dispute that he failed to resubmit his Form 21-8940. The Board, however, finds that the information provided by the Veteran on his incomplete Form 21-8940, his participation at the April 2017 Board hearing, and his submission of additional evidence in support of his claim overcomes any evidentiary issue created by his unsigned Form 21-8940 and demonstrates significant cooperation in the development of his claim. The Board turns now to the merits of the Veteran's claim. In this case, the Veteran is service-connected for major depression, rated as 70 percent disabling from February 15, 2007; lumbar bulging discs and degenerative changes, rated as 40 percent disabling from March 30, 2007; residuals of left knee arthroscopy, rated as 10 percent disabling from April 4, 2005; gastroesophageal reflux disease, rated as 10 percent disabling from April 4, 2005; genital herpes, rated as 10 percent disabling from April 4, 2005; and headaches, rated as 0 percent disabling from April 4, 2005. The Veteran has a combined evaluation of 90 percent beginning March 30, 2007. The Veteran's disability ratings meet the schedular criteria to render him eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16 (a). Therefore, the determinative issue is whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, singularly or collectively. A July 2007 Compensation and Pension Examination noted that the Veteran suffered from severe social and occupational impairment due to service connected depression. The Veteran was assigned a GAF score of 50. The examiner noted that his GAF score indicated that his level of social and occupational impairment was due solely to his service-connected depression. The Veteran's symptoms were frequent, chronic, and daily with depressed mood, anhedonia, worthlessness, psychomotor retardation, fatigue, sleeping disorder, guilt, and decreased ability to concentrate. See July 2007 VA Examination Report. That examination further noted that the Veteran's service-connected back and left knee problems produced significant effects on occupational activities. The impact on such activities was noted as decreased mobility, problems with lifting and carrying, lack of stamina, decreased strength, and lower extremity pain. The examiner commented that the Veteran's condition slowed his work but that he kept working. He noted that it was hard to get in and out of the truck due to left knee pain and that the Veteran wore no left knee brace at the time. In regards to the Veteran's back, the examiner noted that the Veteran had to stop his truck to get out and stretch for a few minutes. He reported doing this nine to ten times a day with each break lasting five to ten minutes. The examiner further noted that operating the clutch on the truck aggravated the Veteran's low back pain. Id. In December 2008, the Veteran was seen by Dr. H.P., a licensed psychologist, for a confidential psychological evaluation. Pertinent to the Veteran's employability, the examiner noted that historically he had poor relationships with co-workers which resulted in multiple altercations. He noted that generally, the Veteran's positions had been short-lived but that he denied a history of being fired for the aforementioned behaviors. Dr. H.P. opined that the Veteran's psychiatric symptomatology would significantly impede his ability to engage in appropriate behavior at work including: understanding and remembering directives, responding appropriately to supervision, and interacting well with fellow co-workers. Dr. H.P. stated that it was noteworthy that the Veteran's difficulties were likely exacerbated by a history of personality dysfunction and substance abuse. See December 2008 Confidential Psychological Evaluation. The Board notes that the Veteran is in receipt of Social Security Disability. A February 2009 Social Security Administration (SSA) disability determination noted that the Veteran's disability began in December 2007 with the primary diagnoses listed as major depressive disorder and degenerative disc disease. Remarks indicated that "claimant not capable per Dr. H. Patterson's report dated 12.10.08" See February 2009 SSA Disability Determination. A VA examination of the Veteran's service-connected back and left knee conditions conducted in January 2010 and March 2010 noted effects on occupational activities as decreased mobility, problems with lifting and carrying, and pain. See January 2010 and March 2010 VA Examination Reports. A March 2010 VA mental health examination noted that the Veteran's current psychosocial functional status was impaired. The examiner noted sleep impairment that interfered with daily activities. The Veteran slept four to six hours per night which caused exhaustion that interfered with daytime activities. The examiner assigned a GAF score of 51 with moderate social and occupational impairment due to major depressive disorder. The Veteran was moderately impaired in his ability to engage in physical and sedentary employment due to depression. The Veteran was deemed to have reduced reliability and productivity due to mental health symptoms. See March 2010 VA Mental Health Examination. The RO sought further clarification with respect to how the Veteran's service-connected and nonservice-connected disabilities affected his ability to obtain and sustain gainful employment of any kind, both physical labor and sedentary work. In an April 2010 addendum, a VA examiner opined that the Veteran was moderately to severely limited in performing physical employment due to his subjectively claimed back and knee pains but only mildly affected in performing sedentary work. See April 2010 Addendum Opinion. At his April 2017 Board hearing, the Veteran testified that he has been unemployed since December 2008. While in service, the Veteran worked as a recovery specialist and a maintenance technician. He was medically discharged from service in April 2005. The Veteran testified that upon leaving service he worked as a gas station stock person, which included janitorial duties. He reported that he obtained this job because his mother worked there but that he had conflicts with management following a workplace dispute between his mother and another employee. The Veteran worked at the gas station for a few months before obtaining a sales clerk position at Advanced Auto Parts and Batteries where he worked for approximately three to four months. The Veteran then received vocational rehabilitation through VA in order to attend classes to obtain a commercial drivers license (CDL). Upon completing that course, the Veteran was employed at TJS Trucking. He reported obtaining this job through someone who was "like a family member." He described his duties as moving shingles around a yard, which involved him driving back and forth on a road located on a plant site. Subsequently, the Veteran drove a triaxle dump trunk for a company called Gelcoat and later worked for Securitas Security at B.F. Goodrich. He indicated that all of these positions were only for a few months at a time. He further testified that he obtained many of these positions through friends and family who were aware of his circumstances and provided him with special accommodations that he would not normally have received. For instance, the Veteran indicated that he was often allowed to perform his various jobs in isolation from coworkers and customers. See April 2017 Hearing Transcript. The Veteran indicated that his service-connected major depression and back condition were the primary causes of his unemployment. In particular, with regards to his depression, the Veteran expressed that he had a difficult time being around other people. He reported having minimal communication with his coworkers, limiting his exchanges to greetings. He reported a number of his supervisors allowed him to work in back offices away from customers and coworkers, even when such interaction would have been a normal part of his job. The Veteran reported difficulty waking up in the morning and often reporting to work late due to prescribed medications as well as at least one instance where he left a position (at Gelcoat) because of a week-long hospitalization at a mental facility. Id. In September 2017, the Veteran submitted a vocational opinion from Dr. W.C. who indicated that he had reviewed the Veteran's C&P examinations and psychological evaluations. He noted that the Veteran had completed high school and a course to obtain a commercial drivers license. He noted the Veteran's work as a sales clerk in the automobile parts store and stated that this work involved a medium level of exertion and was semi-skilled in nature. The Veteran's work as an on-site truck driver was noted as semi-skilled and required a medium level of exertion. He further noted his job as a security monitor which required a sedentary level of exertion and unskilled to low semi-skill ability. See September 2017 Vocational Opinion. Dr. W.C. discussed the various findings of the Veteran's mental health examinations before opining that the Veteran had a combination of impairments that significantly impacted his ability to meet the physical and mental demands of work. He noted that medical records and examinations demonstrated a steady and marked decline in the Veteran's overall mental ability. He indicated that the Veteran would be unable to respond appropriately to supervision and unable to carry out instructions. His psychological symptoms would interrupt his ability to complete work tasks. He noted that these symptoms alone would prevent work, but that when his mental limitations are combined with the mobility issues associated with his left knee and lower back pain, his inability to work would be compounded. Dr. W.C. concluded by opining that when considering the Veteran's education, work background, and medical information, he would be unable to engage in substantial gainful activity and was totally disabled to work in the competitive labor market. Id. With respect to the Veteran's ability to obtain and retain substantially gainful employment, the record demonstrates that the Veteran is limited in performing physical employment due to his service-connected back and left knee conditions. These limitations have been variously described as moderate to severe, with decreased mobility, problems with lifting and carrying, and pain. The Veteran has consistently reported symptoms of pain while attempting to work, as well as the need for frequent breaks to stretch his back. Notably, all of the Veteran's specialized training and work experience have involved manual labor occupations of a physical nature. The Veteran's highest level of education is a high school diploma. Although he has a CDL and completed first responder training, the employment opportunities presented by these specializations are inherently physical in nature. Further, the mental health examinations of record are in agreement that the Veteran's depression impairs his ability to engage in physical and sedentary employment. The December 2008 confidential psychological evaluation found that the Veteran lacked adequate judgment to make acceptable work decisions and that his symptoms precluded appropriate work behaviors such as the ability to respond to supervisors and carry out instructions. He would further be unable to complete work without excessive interruption from psychological symptoms. This conclusion is well supported by the Veteran's own report of his work history in which he engaged in a kind of sheltered employment where he was largely employed by friends and family, allowed to work in isolation, and kept away from co-workers and customers. It is further supported by evidence of his frequent clashes with supervisors. Although, the March 2010 VA examiner's opinion was more reserved, he nevertheless opined that the Veteran's depression moderately impaired his ability to engage in physical and sedentary employment. Additionally, the vocational assessment provided by the Veteran is in agreement that the Veteran's psychological symptoms prevent work. The September 2017 Vocational opinion opined that the Veteran's mental limitations in combination with his mobility issues associated with his service-connected left knee and lower back condition would compound his inability to work. The Board is in agreement. For all practical purposes, the Veteran's physical limitations in conjunction with his limited educational background would significantly limit employment opportunities even of a sedentary nature. When accounting for both his physical limitations and the significant symptoms of depression that he displays, it is unlikely that the Veteran would be able to obtain and retain employment. Therefore, the Board finds that overall the Veteran's service-connected disabilities are cumulatively of such severity, in light of his past work experience and education, as to preclude obtaining and retaining substantially gainful employment. ORDER Entitlement to TDIU is granted, subject to applicable law and regulations governing the award of monetary benefits. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran has presented multiple theories of entitlement in his claim for service connection for residual pain status post torn left rotator cuff of the left shoulder and degenerative joint disease (DJD) of the cervical spine. The Veteran has asserted that he suffered a fall in 2005 while at work and was diagnosed with bruised ribs. The Board notes that the in service fall and the bruised rib diagnosis are documented in the Veteran's service treatment records. Although not diagnosed at the time, the Veteran contends that his left shoulder and cervical spine conditions were the result of this same fall. Alternatively, the Veteran contends that his left shoulder and cervical spine conditions are secondary to his service-connected low back disability. Lastly, an alternative theory of direct service connection has been raised by the record as it has been suggested by the Veteran that his left shoulder and cervical spine conditions resulted from the same occupational wear and tear that led to his service-connected back condition. The Board notes that the Veteran is service connected for lumbar bulging discs and degenerative changes (back condition). It has been noted on examination that the Veteran had no obvious injury to his back; however his healthcare providers at Fort Stewart noted that the condition most likely resulted from repetitive movement as a result of his job as a mechanic in the army. The Veteran underwent a VA examination in August 2010. He reported that he injured his left shoulder and his neck after a work fall at the motor pool at Fort. Stewart in 2005. The Veteran reported that he slipped and tried to break his fall while stretching and holding a cable. He asserted that his left shoulder and neck pain began then and had continued in the years since. The examiner diagnosed a left rotator cuff tear causing chronic shoulder pain and mild degenerative joint disease causing chronic neck pain. The examiner opined that the Veteran's left shoulder condition and cervical spine condition were not secondary to his service connected lumbar spine condition. As rationale he noted that the chronic left shoulder pain was due to a torn left rotator cuff of the left shoulder and that chronic neck pain was due to mild DJD of the cervical spine. He concluded that there was no clinical evidence or documents in the service record to show that the left shoulder condition and the cervical spine condition were related to the service-connected lumbar spine condition. The Board finds this opinion to be insufficient to allow the Board to determine whether the Veteran is entitled to service connection. Firstly, the opinion is devoid of any discussion of the Veteran's initial theory of entitlement to direct service connection. The examiner noted the Veteran's contention that he injured his left shoulder and neck in the 2005 fall at Fort Stewart, however there is no subsequent discussion of whether this injury was the cause of the Veteran's claimed left shoulder and neck conditions. In fairness to the examiner, the requested opinion from the RO asked only for an opinion on service connection as secondary to the Veteran's lumbar spine condition. However, the Veteran's October 2009 Statement in Support of Claim explicitly states his contention that the left shoulder and neck conditions resulted from the work fall on the motor pool floor. Secondly, although secondary service connection is addressed, the VA examiner's opinion did not address whether the Veteran's left shoulder and cervical spine conditions are aggravated by his service connected back condition. Thirdly, as mentioned above, the Veteran has now advanced the theory that his left shoulder and cervical spine conditions may be the result of the same in-service occupational wear and tear that led to his service-connected back condition. As this is an entirely new theory of entitlement, it must be addressed on remand. Thus, the Board finds that another comprehensive VA examination should be conducted to determine whether the Veteran's left shoulder and cervical spine conditions are related to in-service events on a direct basis. Specifically, whether the Veteran's claimed conditions are the result of a work place fall in 2005 or, in the alternative, the result of occupational wear and tear that resulted from the Veteran's work as an army mechanic. Also, the Board finds that a new VA examination is necessary to address the Veteran's contention that his left shoulder and cervical spine conditions are secondary to his back condition. Service connection may be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a) (2017). Further, a disability which is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). An opinion should be obtained on whether the Veteran's left shoulder and cervical spine conditions are secondary to the back condition. Additionally, any VA treatment records should be obtained and associated with the file on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all updated VA treatment records. If no such records are located, that fact should be documented in the claims file. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of his residual pain status post torn left rotator cuff of the left shoulder and degenerative joint disease of the cervical spine. The claims file and a copy of this remand must be made available to the examiner. The examiner shall note in the examination report that the record and the remand have been reviewed. The examiner should describe all findings in detail and provide a complete rationale for all opinions offered. Any such opinion must also demonstrate consideration and discussion of the Veteran's contentions. After reviewing all of the evidence, including STRs, personnel records, and all post service treatment reports, the examiner should provide a response to the following: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left shoulder and cervical spine conditions were the result of a documented 2005 fall in service? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left shoulder and cervical spine conditions were the result of occupational wear and tear as a result of repetitive motion in the course of his job as an army mechanic? (c) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left shoulder and cervical spine conditions were caused by OR aggravated by his service-connected back condition? If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The VA examiner is requested to provide a thorough rationale for any opinion provided. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. 3. Readjudicate the service connection claims on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs