Citation Nr: 21065913 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-39 536 DATE: October 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from November 1, 2016 is granted. FINDING OF FACT Since November 1, 2016, resolving all reasonable doubt in her favor, the Veteran has been unable to secure or follow a substantially gainful occupation due to her service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU November 1, 2016 have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision. The claims for an increased rating for a left shoulder disability and a left arm disability were denied by the Board in July 2020. The Veteran appealed, to the extent the Board failed to adjudicate TDIU, to the United States Court of Appeals for Veterans Claims (Court) which, in April 2021 vacated and remanded the issue for action consistent with a Joint Motion for Partial Remand (Joint Motion). Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 11, 2020 During the course of this appeal, the Veteran was granted entitlement to a TDIU, effective May 11, 2020, the date of the Veteran's application for a TDIU. See October 2020 rating decision. Based on the Veteran's employment and education history and level of service-connected disability, VA determined that the Veteran was unable to obtain and retain a substantially gainful occupation. A TDIU is granted upon a showing the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 and 4.19. A TDIU may be granted under 38 C.F.R. § 4.16 (a) if he meets certain schedular rating requirements, or on an extraschedular basis under § 4.16 (b), even if he does not, so long as he is incapable of obtaining and maintaining substantially gainful employment on account of his service-connected disability or disabilities. The Veteran submitted her VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in May 2020; the October 2020 rating decision granted TDIU effective the date of this application. The Veteran seeks entitlement to a TDIU prior to May 11, 2020 and asserts that the Veteran's application for an increased rating for a left shoulder disability and a left arm disability was also a claim for TDIU. The Board notes that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court found in Rice that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Here, a claim for entitlement to an increased rating for a left shoulder disability and a left arm disability was received in November 2016. The Veteran has asserted that she is unemployed due to her left shoulder and arm symptoms, as well as the subsequently service-connected major depressive disorder. See February 2017 rating decision and May 2020 Application for Unemployability. Therefore, the Board finds that the Veteran's November 2016 claim for an increased rating for upper left arm condition was also a claim for a TDIU. As of November 1, 2016, the Veteran was service-connected for left shoulder status post excision of scapula, proximal quarter of humerus and lateral third of clavicle, rated as 70 percent disabling. A February 3, 2017 rating decision granted major depressive disorder at 70 percent disabling and left shoulder limitation of motion at 20 percent disabling effective November 1, 2016. As such, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16 (a) for consideration of entitlement to a total rating based on individual unemployability. Therefore, the Veteran is eligible for an individual unemployability rating, prior to May 11, 2020, if she was unable to secure or follow a substantially gainful occupation as a result of her disability. The Veteran has indicated that she was last employed in October 2014. A June 2016 mental health treatment note reflects the Veteran reported intermittent thoughts of wanting to harm herself. She was diagnosed with major depressive disorder and advised to journal her suicidal ideation. During an August 2016 Social Security mental status examination, the Veteran reported severe sleep impairment, reporting about three to four hours of sleep per night without napping during the day. As noted in the January 2017 VA mental disorders examination, the Veteran reported significant depression and recent suicidal ideations. At the January 2017 VA shoulder examination, the Veteran reported progressively worsening left shoulder problems and flare-ups five times per week where her shoulder pain increased from a 2/10 on the pain scale to 6/10 limiting her range of motion. A November 2018 opinion from Dr. S. B., a vocational expert found the Veteran is unable to perform any work for which she is educated and/or trained to perform, cannot use her left upper extremity for sustained activities, mentally sustain working with others, would be absent from work more than acceptable in competitive employment, and would experience interruptions in focus that would make productivity in even unskilled work less than acceptable by competitive employers. In sum, Dr. B. concluded the Veteran is permanently and totally occupationally disabled. (Continued on the next page) In a November 2018 assessment, Dr. M. B. determined the combined effects of the Veteran's service-connected major depressive disorder, status post excision of scapula proximal quarter of humerus and lateral third of clavicle of left shoulder, and status post excision of scapula proximal quarter of humerus and lateral third of clavicle of left shoulder with limitation of motion, ans side effects caused by her medications impact her ability to stay focused. Dr. M. B. stated in her opinion the Veteran would not be able to stay focused to complete simple repetitive type tasks 7 hours of an 8-hour workday, more than three days per month. Based of the doctor's review of the Veteran's claims file and an interview with the Veteran, the physician opined the Veteran is more likely than not unable to maintain substantially gainful employment due to the combined effects caused by her service-connected disabilities and side effects of her medications used to treat those disabilities. Considering all evidence of record, the Board finds that the evidence is at least in equipoise that the Veteran was precluded from gainful employment due to her service-connected disabilities prior to May 11, 2020. A review of the record shows that there was virtually no difference between the Veteran's symptoms in November 2016 and the Veteran's symptoms thereafter. The Board notes that the Veteran's status post excision of scapula proximal quarter of humerus and lateral third of clavicle of left shoulder has been rated at 70 percent consistently since the grant of service connection and major depressive disorder was rated as 70 percent disabling since November 2016, both of which led to the grant of TDIU. Accordingly, the Board finds that entitlement to TDIU from November 1, 2016, the date of claim for an increased rating for upper left arm condition, is granted. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.