Citation Nr: 1807699 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 96-02 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) prior to October 24, 2012. (The Veteran has a different representative for separate appellate issues. These issues are addressed in a separate Board decision.) REPRESENTATION Veteran represented by: Nancy L. Foti, Attorney ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to August 1968. This matter arises before the Board of Veterans' Appeals (Board) from a June 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In the June 1995 rating decision, the RO denied an increased evaluation for a left shoulder disability. The Veteran appealed this decision to the Board. In June 2004, the Board denied an increased evaluation for a left shoulder disability. In November 2005, pursuant to a Joint Motion for Remand, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's June 2004 decision in regard to the evaluation of his left shoulder disability. In an October 2007 decision, the Board granted an increased evaluation of 30 percent for a left shoulder strain with tendonitis, and assigned a separate 10 percent rating on an extra-schedular basis. The RO subsequently issued a combined rating of 40 percent for the Veteran's left shoulder disorder in a November 2007 rating decision. In a September 2009 memorandum decision, the Court vacated and remanded the matter again for consideration of an extraschedular TDIU evaluation associated with the Veteran claim for an increased evaluation for his left shoulder disability. In March 2010 and January 2012, the Board remanded the matter for additional evidentiary development. In July 2015, the Board denied an increased evaluation for a left shoulder disability and remanded the issue of TDIU. FINDINGS OF FACT 1. The Veteran's combined disability rating prior to October 24, 2012 is 40 percent, with the highest single disability evaluation of 40 percent. 2. Prior to October 24, 2012, the Veteran's left shoulder disability precludes him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The record supports a finding that the Veteran's service-connected left shoulder disability renders him unemployable. As indicated above, prior to October 24, 2012, the Veteran's combined disability rating is 40 percent, which does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, under 38 C.F.R. § 4.16(b) all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability should be referred to the Director of Compensation Service. In May 2014, the Director rendered a negative opinion, finding that the Veteran manifested minimal degenerative changes of the left shoulder joint and found that Veteran's left shoulder disability would not preclude sedentary work. Although the Board is required to obtain the Director of C&P's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by that decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). Thus, as the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) has been remanded and referred to the Director and the Director has issued a decision, the issue is now before the Board and must be addressed on the merits. For the period prior to October 24, 2012, the Board must consider the Veteran's employment history, educational and vocational attainment in determining if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran's educational and occupational history reflects that he is high school educated and has three years of college, and is limited in his vocational training to work involving physical clerical labor, such as lifting and carrying claims files from one location to another. See Correspondence dated August 2010. The Board interprets this evidence to indicate that the Veteran has a work history that is limited to occupations requiring the use of his upper extremities. The Veteran has not had substantially gainful employment since 2004 when he worked as a legal clerk. See VA Form 21-8940 dated September 2013. VA examination findings from July 2006 show the examiner found the Veteran's left shoulder movement was "exquisitely painful from inception to completion." The July 2006 examiner opined that the Veteran was no longer able to perform gainful employment. VA examination findings from September 2006 show the Veteran's left shoulder disability resulted in a marked interference with employment. The Board notes that a September 2010 VA examiner found the Veteran was precluded from substantial gainful activity by his left shoulder disability, noting he was unable to hold anything for longer than five minutes without severe pain. Findings of the Social Security Administration (SSA) appear to further support a finding that the Veteran is unemployable due to, at least in part, his service-connected left shoulder disability. The SSA found the Veteran disabled primarily because of inflammatory arthritis affecting multiple joints. SSA medical records associated with the claims file indicate the Veteran reported his left shoulder disability impacted his ability to work in his application for disability benefits. See Disability examination dated February 2005. Given the findings from the July 2006, September 2006, and September 2010 VA examinations, the Veteran's decade of unemployment, and the SSA finding of disability, the evidence is at least in equipoise as to whether the Veteran's service-connected left shoulder disability precluded him from obtaining or maintaining substantially gainful employment prior to October 24, 2012. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) prior to October 24, 2012 is warranted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017). ORDER Prior to October 24, 2012, a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis is granted. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs