Citation Nr: 21004099 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-09 887 DATE: January 26, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) on an extraschedular consideration basis from Oct. 5, 2009 is denied. FINDING OF FACT The Veteran's service-connected residuals of a left shoulder trauma and left shoulder scar does not render him unable to secure and follow a substantially gainful occupation from Oct. 5, 2009. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2019) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to August 1978. In March 2020, the Board remanded the issue below on appeal for further development, and the case has since been returned to the Board. The Board finds that the AOJ has not substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to TDIU, to include extraschedular consideration from Oct. 5, 2009 The Veteran contends that he is permanently unemployable due to his service-connected left shoulder and PTSD disabilities, and that a TDIU is warranted. See October 2009 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). The Board notes that the Veteran was granted a 100 percent rating for PTSD beginning January 4, 2012. For the period on consideration, the Veteran was service connected for residuals of a left shoulder trauma which has been assigned a rating of 30 percent herein along with a 10 percent rating for left shoulder scar. Thus, the Veteran’s combined disability rating is 40 percent. Accordingly, the schedular requirements for TDIU are not met because the Veteran does not one disability rated as 60 percent or a total disability rating of 70 percent for multiple disabilities. 38 C.F.R. §4.16(a). Accordingly, the Board must consider whether the Veteran’s service-connected left shoulder disability and scar warrant consideration of a TDIU, which would possibly implicate consideration of SMC benefits. To that extent, the Board, in a March 2020 remand, found that a remand was warranted to address whether extraschedular TDIU is warranted for the left shoulder disability from October 5, 2009 (the date of the original claim for service connection for the disability and the Veteran’s assertions of unemployability). Subsequently, in an October 2020 VA memo, the Director of the Compensation Service issued an advisory opinion stating: A thorough review of the file shows that the Veteran’s shoulder condition results in pain and limitation of motion which would have an impact employment. Despite the conceded functional limitations, the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions. It is the established policy of the Department of Veterans Affairs 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. The Executive Director of Compensation Service has determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevents employment. Entitlement to extra-schedular TDIU benefits is not established. Although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director of Compensation Service regarding extraschedular entitlement to a TDIU because the Court has determined that the Director of Compensation Service's decision is in essence a decision by an agency of original jurisdiction (AOJ) and is no different than a RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran was entitled to TDIU from October 5, 2009 (the date of the original claim for service connection for the disability and the Veteran’s assertions of unemployability). The Veteran’s VA treatment records confirm the Veteran treated his left shoulder pain with a lidocaine topical patch since October 2009. See VA Pharmacy Note in CAPRI received November 2012. The Veteran complained of chronic left shoulder pain during a January 2012 VA anesthesia consult. See January 2012 VA Anesthesia Consult in CAPRI received November 2012. The VA pain specialist noted that the Veteran had a painful scar and pain with motion on flexion, extension, abduction, and adduction of his left shoulder. The Veteran’s former employer J.M. submitted a buddy statement in April 2010 stating that he had to terminate the Veteran’s employment due to left shoulder pain and depression. See April 2010 Buddy/Lay statement. Social Security Administration records indicate the Veteran has been deemed disabled since June 20, 2012 due to, in pertinent part, myelofibrosis of the left upper extremity. In sum, the more probative medical evidence of record, do not document that the Veteran's symptoms cause such a degree of functional impairment that would preclude employment from October 5, 2009. Furthermore, to the extent that the Veteran and his former employer have attempted to establish the Veteran's entitlement to a TDIU on the basis of lay assertions alone, the Board emphasizes that the Veteran and his former employer are not shown to possess expertise in medical or vocational matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Rather, while they are competent to describe the Veteran's symptoms from his service-connected disability, they are not competent to offer an opinion regarding the functional impact such has on his ability to maintain gainful employment. Hence, the lay assertions in this regard have no probative value and are outweighed by the more probative medical evidence. In sum, the competent medical evidence offering detailed specialized determinations on the Veteran's functional impairment are the most probative evidence; the medical evidence also largely contemplates the lay assertions concerning his employment and descriptions of symptoms. For the foregoing reasons, the Board finds that the Veteran’s service-connected residuals of a left shoulder trauma and left shoulder scar did not preclude substantially gainful employment. In conclusion, the preponderance of the evidence is against entitlement to a TDIU on an extraschedular basis. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. A. Elliott II, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.