Citation Nr: 21068635
Decision Date: 11/11/21	Archive Date: 11/11/21

DOCKET NO. 15-19 572
DATE: November 11, 2021

ORDER

Entitlement to a disability evaluation in excess of 20 percent for left shoulder disability with scar and retained metallic fragments is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from July 30, 2010.

FINDINGS OF FACT

1. The Veteran is right hand dominant.

2. During the period on appeal, the Veteran's left shoulder disability was manifested by, at worst, limitation of motion at the shoulder level due to pain as well as shrapnel injury residuals involving Muscle Groups I-VI, resulting in no more than moderate impairment. There is no evidence of ankylosis of the scapulohumeral articulation; malunion of the humerus, or malunion the major clavicle or scapula or nonunion without loss of movement.

3. The Veteran has met the schedular requirements for a TDIU since July 30, 2010. 

4. Throughout the appeal period, which begins July 30, 2010, the Veteran's service-connected disabilities have prevented him from securing and/or following a substantially gainful occupation. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability evaluation in excess of 20 percent for left shoulder disability with scar and retained metallic fragments have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.25, 4.40, 4.45,4.71a, Diagnostic Code (DC) 5306-5201. 

2. Beginning July 30, 2010, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably on active duty from March 1969 to October 1970, to include service in the Republic of Vietnam. He received several decorations and awards for his service, including the Combat Action Ribbon, Republic of Vietnam Cross of Gallantry with Palm, and a Purple Heart. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). 

By way of history, these claims have previously been before the Board on numerous occasions: in September 2018, January 2020, and most recently in March 2021. Each time the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. 

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal.

Effective February 7, 2021, several changes to the diagnostic codes used for rating musculoskeletal disabilities were made. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. While the Veteran has not yet been notified of all applicable regulatory changes and considered his claim under such regulations, the Board notes that the rating criteria prior to February 7, 2021 pertaining to the shoulders are significantly more favorable to the Veteran. As such, there is no prejudice to the Veteran in the Board considering the claims at this time.

1. Entitlement to a disability evaluation in excess of 20 percent for left shoulder disability with scar and retained metallic fragments is denied. 

The Veteran seeks a higher disability rating for his service-connected left shoulder condition (non-dominant). By way of history, the Veteran submitted a claim for an increased rating for his service-connected left shoulder condition on July 30, 2010. A December 2011 rating decision continued the currently assigned 10 percent disability rating. The Veteran submitted a timely notice of disagreement and appealed the assigned rating to the Board. Subsequently, during the pendency of the appeal, by rating decision in December 2020, the RO increased the Veteran's disability rating for the left shoulder from 10 to 20 percent disabling, effective July 30, 2010. As a higher rating for a left shoulder disability is available for the period on appeal beginning July 30, 2010, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The Veteran's left shoulder disability is currently rated under DCs 5306-5201. 38 C.F.R. §§ 4.71a, 4.73. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In this case, DC 5306-5201 reflects consideration of the effects of muscle injuries to the shoulder girdle and arm (5306) and limited motion of the arm (5201).

Prior to February 7, 2021, under DC 5201 (pertaining to limitation of motion of the arm), limitation of motion at shoulder level warrants a 20 percent rating for both the major and minor arms. With limitation of the arm midway between side and shoulder level, a 30 percent rating is warranted for the major arm and a 20 percent rating is warranted for the minor arm. With limitation of the arm to 25 degrees from the side a 40 percent rating is warranted for the major arm and a 30 percent rating is warranted for the minor arm.

Beginning February 7, 2021, under DC 5201, limitation of motion at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent for both the major and minor arms. With limitation of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) a 30 percent rating is warranted for the major arm and a 20 percent rating is warranted for the minor arm. With limitation of the arm to 25 degrees from the side a 40 percent rating is warranted for the major arm and a 30 percent rating is warranted for the minor arm.

For VA purposes, normal range of shoulder motion is forward elevation (flexion) 0 to 180 degrees; shoulder abduction 0 to 180 degrees; internal rotation 0 to 90 degrees; and external rotation 0 to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I.

Muscle injuries of the shoulder girdle and arm are rated under 38 C.F.R. § 4.73, DC 5301-5306. DC 5301 pertains to Muscle Group I regarding the muscles arising from the extrinsic muscles of the shoulder girdle including the trapezius, levator scapulae, and serratus magnus. The functions of these muscles include upward rotation of the scapula and elevation of the arm above shoulder level. Under DC 5301, a noncompensable rating is warranted if impairment of Muscle Group I is slight; a 10 percent rating is warranted if impairment of this muscle group is moderate; a 30 percent rating for the major arm and a 20 percent rating for the minor arm is warranted if impairment of this muscle group is moderately severe; and a maximum rating of 40 percent for the major arm and a maximum rating of 30 percent for the minor arm is warranted if there is severe impairment.

DC 5302 pertains to Muscle Group II regarding the extrinsic muscles of the shoulder girdle involved are the pectoralis major II (costosternal); latissimus dorsi and teres major (teres major, although technically an intrinsic muscle, is included with latissimus dorsi); pectoralis minor; and rhomboid. The functions of these muscles include the depression of arm from vertically overhead to hanging at side; downward rotation of scapula; and acting with Group III in forward and backward swing of arm. Under DC 5302, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body. A 20 percent rating requires moderate disability of the minor and major arm. A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is moderately severe. A 30 percent rating and a 40 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

DC 5303 pertains to Muscle Group III regarding the intrinsic muscles of the shoulder girdle including the pectoralis major (clavicular) and deltoid. The functions of these muscles include the elevation and abduction of arm to level of shoulder and act with 1 and 2 of Group II in forward and backward swing of arm. Under DC 5303, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body. A 20 percent rating requires moderate disability of the minor and major arm. A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is moderately severe. A 30 percent rating and a 40 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

DC 5304 pertains to Muscle Group IV regarding the intrinsic muscles of shoulder girdle including the supraspinatus, infraspinatus and teres minor, subscapularis, and coracobrachialis. The functions of these muscles including stabilization of shoulder against injury in strong movements, holding head of humerus in socket, abduction, and outward rotation and inward rotation of arm. Under DC 5304, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body. A 10 percent rating requires moderate disability of the minor and major arm and a 20 percent rating requires moderately severe disability of the minor and major arm. A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

DC 5305 pertains to Muscle Group V regarding the flexor muscles of the elbow including the biceps, brachialis, and brachioradialis. The functions of these muscles include elbow supination (long head of biceps is stabilizer of shoulder joint) and flexion of elbow. Under DC 5305, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body. A 10 percent rating requires moderate disability of the minor and major arm. A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is moderately severe. A 30 percent rating and a 40 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

DC 5306 pertains to Muscle Group VI regarding the extensor muscles of the elbow including the triceps and anconeus. The functions of these muscles include extension of elbow (long head of triceps is stabilizer of shoulder joint). Under DC 5306, a zero percent evaluation is provided for slight muscle disability of either the dominant or non-dominant side of the body. A 10 percent rating requires moderate disability of the minor and major arm. A 20 percent rating and a 30 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is moderately severe. A 30 percent rating and a 40 percent rating are assigned for the minor and major arm, respectively, if impairment of this muscle group is severe.

The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Evidence relevant to the current level of severity of the Veteran's left shoulder disability includes VA shoulder examinations from January 2011, November 2020, and April 2021, as well as muscle injury examinations from April 2019, November 2020, and April 2021, in addition to VA treatment records.

The Veteran initially reported pain in his left arm during the January 2011 VA examination. He denied any significant surgical history for his left shoulder other than removal of shrapnel fragments during his active-duty service. The Veteran reported that since that time, he has continued to experience pain in his left shoulder radiating down to his left arm and hand. The Veteran described the pain as sharp and occasionally achy. Regarding frequency of pain, the Veteran indicated that he experiences left shoulder pain every day, most of the time during the day. The Veteran denied any stiffness, weakness, swelling, or fatigue in his left arm and shoulder. The Veteran also denied any significant functional impairment on his daily activities as a result of his left shoulder disability. The VA examiner noted that the Veteran has two scars on his left upper arm and left posterior shoulder secondary to shrapnel fragments. The VA examiner tested the Veteran's range of motion of his left shoulder and the following results were recorded: forward flexion of the left shoulder to 180 degrees, hyperextension 40 degrees with pain and grimacing, abduction to 180 degrees, adduction to 50 degrees, internal rotation to 90 degrees, and external rotation to 80 degrees. The VA examiner noted no loss in range of motion after repetitive testing. 

The Veteran was afforded a VA muscle injuries examination in April 2019. The VA examiner noted that the Veteran has been diagnosed with a muscle injury, namely, a superficial fragment injury of the left shoulder, since 1970. The Veteran's muscle injury was categorized as a penetrating muscle injury, from shell fragments. The VA examiner noted that a CT scan did not show foreign bodies in the thorax area. The LUE Muscle Groups involved were noted by the examiner to include Group I. There were no associated fascial defects, and the muscle injuries did not affect muscle substance or function. Muscle strength testing was 5 out of 5 in all muscle groups and there was no muscle atrophy. X-rays revealed no evidence of retained shell fragments in Muscle Group I. 

The Veteran underwent an additional VA examination in November 2020. During the examination, the Veteran reported pain in his left shoulder. The Veteran denied experiencing flare-ups of his left shoulder disability but indicated that his disability prevents him from doing lifting of any kind. Upon range of motion testing, the VA examiner recorded the Veteran's forward flexion of the left shoulder as 180 degrees, abduction to 180 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees, with no pain noted on the ranges of motion. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of function or range of motion. The VA examiner found no ankylosis of the Veteran's left shoulder. The VA examiner also denied that the Veteran exhibited signs of any conditions or impairment of the humerus, to include nonunion or malunion. 

The VA muscle injuries examination from November 2020 revealed that the Veteran endorsed aching pain in the left shoulder, on and off depending upon activity. The Veteran indicated that the pain makes it difficult to perform weight-bearing activities, especially pushing, pulling, and lifting. The LUE Muscle Groups involved were noted by the examiner to include Group II, Group V, and Group VI. The VA examiner also noted injury to the Veteran's torso or neck muscle group, specifically, Groups XX and Group XXII, which include spinal muscles and the trapezius muscles of the front of the neck. The VA examiner noted that the Veteran had minimal scars associated with his muscle injuries and no known fascial defects and the muscle injuries did not affect muscle substance or function. Associated signs and symptoms included loss of power in Group VI, fatigue and/or pain. Muscle strength testing was 5 out of 5 in all muscle groups and there was no muscle atrophy. 

Following the Board's March 2021 remand, the Veteran underwent an additional VA examination for his left shoulder in April 2021. During the examination, the Veteran reported periods of sharp pain "every now and then" and stated his last flare-up of his left shoulder disability was about two years ago. The Veteran endorsed yearly flare-ups of his condition, characterized by pain and alleviated by rest. Upon range of motion testing, the Veteran's range of motion were found to be all normal; specifically, flexion ending at 180 degrees, abduction ending at 180 degrees, and internal and external rotation ending at 90 degrees. No range of motion elicited pain and the VA examiner determined that the Veteran's passive range of motion was the same as his active range of motion. The Veteran was also able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The VA examiner found no ankylosis of the Veteran's left shoulder. The VA examiner also denied that the Veteran exhibited signs of any conditions or impairment of the humerus, to include nonunion or malunion.

The Veteran also underwent a VA muscle injuries examination in April 2021. The Veteran reported that he still experiences periods of sharp pain "every now and then" but his last flare-up of pain was about two to three years ago. The LUE Muscle Groups involved were noted by the examiner to include Group II, Group V, and Group VI. The VA examiner also noted injury to the Veteran's torso or neck muscle group, specifically, Groups XX and Group XXII. The VA examiner noted that the Veteran had minimal scars associated with his muscle injuries and no known fascial defects and the muscle injuries did not affect muscle substance or function. Associated signs and symptoms included loss of power in Group VI, fatigue and/or pain. Muscle strength testing was 5 out of 5 in all muscle groups and there was no muscle atrophy.

Considering the aforementioned, an increased rating for the Veteran's left shoulder disability is not warranted at any time during the period on appeal.

Throughout the appeal period, the evidence did not demonstrate compensable limitation of the Veteran's left shoulder disability. However, prior to May 23, 2016, it was longstanding VA policy to interpret "the minimum compensable rating" for a joint as a 10 percent rating, irrespective of the diagnostic code involved.

In Sowers v. McDonald, 27 Vet. App. 472 (2016), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 is limited by the specific diagnostic code most applicable to the disability. Although the Court did not specifically hold that the minimum compensable rating must be assigned under the applicable diagnostic code for the disability involved, the holding influenced subsequent VA policy that the minimum compensable rating under the specific diagnostic code must be assigned when painful motion is demonstrated under 38 C.F.R. § 4.59. Here, painful motion of the shoulder, evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, assigns a 20 percent minimum compensable rating. This policy became effective May 23, 2016, the date of the Court decision. As such, a 20 percent rating was warranted for the Veteran's noncompensable, painful range of motion for his left shoulder disability from July 30, 2010. 

The Board finds that the currently assigned 20 percent rating adequately compensates the Veteran's level of disability for his left shoulder condition. Notably, the Veteran's range of motion in the examinations of record is normal, with occasional moments of pain. The 20 percent rating assigned accounts for this painful motion at the shoulder level, which would otherwise be non-compensable under any rating criteria. A higher rating would not be warranted without limitation due to pain happening much closer to the body, i.e., a mere 25 degrees from his side. Neither the medical nor the lay evidence suggests such impairment.

The Board has also considered other Diagnostic Codes which may be assigned for disabilities to the shoulder based on ankylosis of the shoulder joint or an anatomical deformity such as an impairment of the humerus, clavicle or scapula. 38 C.F.R. § 4.71a, DCs 5200, 5202, 5203. On review, the evidence has not demonstrated, and neither the Veteran nor his representative have contended, that a rating under one of these other DCs is appropriate. There have been no reports of ankylosis in the Veteran's left shoulder, and there is no evidence of a disability to the humerus, the clavicle, or the scapula. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. As such, the Board finds no basis to grant a rating based on one of these other DCs.

In so finding, the Board has considered functional limitations with pain, during flareups, and with repeated use over time. In this case, the Veteran is already being adequately compensated for pain and the resulting functional loss during flareups and repeated use as discussed above. Therefore, ratings in excess of those assigned are not warranted under the schedular criteria.

Additionally, the Board finds that a higher rating in excess of 20 percent for shrapnel injury residuals with injury to various muscle groups under DCs 5301 to 5306 is not warranted. The medical evidence throughout the appeal period reflects that there were no fascial defects and muscle function was not noted to be affected. Loss of power and fatigue-pain were noted. However, muscle strength testing was normal and there was no atrophy. The Board finds that this symptom presentation most closely approximates moderate severity. At no point did the affected muscle groups demonstrate limitation of function approximating moderately severe disability. VA examinations revealed moderate functional impact and VA treatment records did not reflect ongoing treatment other than pain medication as needed. As such, a rating in excess of 20 percent is not warranted when reviewing the diagnostic criteria for muscle injury of the left shoulder. Notably, in addition to the 20 percent rating based on the painful motion of the shoulder, the Veteran is also in receipt of a separate 30 percent rating for left arm neuralgia, to account for the numbness. Therefore, the Board finds that all of his symptoms associated with the service-connected disability have been compensated. 

Accordingly, the preponderance of the evidence is against the Veteran's claim for a higher initial rating for his left shoulder disability. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55.

TDIU

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from July 30, 2010. 

As explained in the Board's September 2018 decision and remand, the Board took jurisdiction of the TDIU claim based on the Veteran's July 30, 2010 claim for an increased rating for PTSD, which he contended also prevented him from working.  Thus, the appeal period for consideration of TDIU begins July 30, 2010.  As will be discussed fully below, the Board finds that entitlement to TDIU is warranted for the entire period on appeal. 

A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38C.F.R. §§3.340, 3.341, 4.16(a).

The Veteran has established service connection for posttraumatic stress disorder (PTSD), rated 50 percent disabling from July 30, 2009; left arm neuralgia, rated 30 percent disabling from July 30, 2010; a left shoulder disability, rated 20 percent disabling from July 30, 2010; tinnitus, rated 10 percent disabling from April 7, 2004; a traumatic brain injury (TBI), rated 10 percent disabling from June 5, 2012; lung cancer status post lobectomy, rated 100 percent disabling from October 30, 2014, and 10 percent disabling from March 1, 2015; hypertension, rated noncompensably disabling from June 26, 2015; multiple small puncture scars on body, rated noncompensably disabling; various shrapnel fragment wound scars, rated noncompensably disabling; hearing loss, rated noncompensably disabling; and post traumatic headaches associated with TBI, rated noncompensably disabling. The Veteran's combined rating for compensation purposes is 80 percent beginning July 30, 2010. Therefore, he has met the threshold schedular criteria for a TDIU during the pendency of the appeal period prior to May 28, 2015. 38 C.F.R. § 4.16(a). The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to his service-connected disabilities.

In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

In his September 2016 VA 21-8940, the Veteran reported that he last worked full time in March 2011 as a quality assurance representative. His last employment in that position was from March 2006 to March 2011, until he became too disabled to work. The Veteran stated he has not tried to obtain other employment since March 2011. Regarding education and training, the Veteran indicated that he completed high school with a diploma and attended two years of college. The Veteran denied any other specialized training or education. 

VA treatment records include a mental health evaluation from March 26, 2009. The Veteran complained of anxiety attacks and vague feelings of stress during the evaluation. The Veteran reported that he doesn't have a lot of friends or relationships and has never been married. The Veteran endorsed drinking himself to sleep daily and stated that he could not remember "the last time I slept without some kind of aid." The Veteran endorsed excessive alcohol consumption, reporting he drinks up to a six-back of beer daily and a half a bottle of tequila on a weekend day. The Veteran reported that he used "a lot" of leave at work and has had to flex his hours at work to come in late some days. The Veteran endorsed hearing auditory disturbances, described as voices, since his return from the Republic of Vietnam. The Veteran denied visual hallucinations. The Veteran complained of significant irritability and extreme paranoia. The Veteran reported this may have resulted in conflicts at his work with other individuals. The Veteran indicated that he has had trouble trusting people since his active military service. The VA treatment provider categorized the Veteran as having paranoid thinking, depressed mood, marked irritability, and chronic interpersonal problems with no enduring or intimate relationships. The VA treatment provider stated that the Veteran "is able to work" but abuses alcohol, which affects his job tardiness. 

A January 2011 VA examination for his PTSD indicates that the Veteran continued to experience problems in his work environment as a result of his PTSD symptoms. The VA examiner reported that the Veteran has problems with his co-workers, including poor communication and interaction, and socially isolates himself. The Veteran also endorsed problems with attention and concentration during the examination. The Veteran continued to report excessive alcohol use to self-medicate and avoid his PTSD symptoms. 

Considering the evidence of record, and the Veteran's past work and education level, Board finds that any previously learned skills for employment would be greatly impacted by his psychological limitations. Based on the foregoing, the Board finds that the medical evidence supports a finding that the Veteran's service-connected disabilities make him unemployable prior to May 28, 2015. As above, while some VA treatment providers have opined that the Veteran is able to work despite the limitations caused by his service-connected disabilities, the Board finds that the evidence summarized above reflects that the Veteran's service-connected disabilities, most notably, his PTSD, significantly affect his ability to secure substantially gainful employment. The Veteran has chronic interpersonal issues and is unable to interact appropriately and effectively with other individuals without severe psychological distress.  

Therefore, affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities and, therefore a TDIU is warranted prior to May 28, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 

 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. M. Lowman, Associate 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.