Citation Nr: 21072360 Decision Date: 12/03/21 Archive Date: 12/02/21 DOCKET NO. 16-28 358 DATE: December 3, 2021 ORDER A total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted from December 8, 2011. REMANDED The issue of entitlement to service connection for a left shoulder disability is remanded. FINDING OF FACT Since December 8, 2011, the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful employment. CONCLUSION OF LAW Since December 8, 2011, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to August 1982 and from April 1988 to February 2002. These matters come before the Board of Veterans' Appeal (Board) on appeal from an October 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. TDIU The Veteran contends that he is unemployable as a result of his service-connected disabilities. It is the established policy of VA 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). For a veteran to prevail on a TDIU claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The United States Court of Appeals for the Federal Circuit held that applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Federal Circuit's decision in Geib governs the adjudication of this appeal. See Chisem v. Brown, 8 Vet. App. 374, 375 (1995). At the outset, the Veteran meets the criteria for a schedular TDIU rating effective April 12, 2005, with a combined 90 percent schedular rating throughout the pendency of the current appeal. As a TDIU claim is a claim for an increased rating, the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The appeal period before the Board is from February 9, 2011, the date VA received the claim for a TDIU plus the one year look back period. The Board, in consideration of 38 C.F.R. § 3.400(o)(2) and Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), has considered the evidence in the one year prior to the date of receipt of the increased rating claim, and finds that the Veteran stopped working on December 8, 2011, such as to warrant a TDIU since that date. In his February 2012 VA Form 21-8940 Application for Increased Compensation based on Unemployability, the Veteran reported that his service-connected neck and right shoulder disabilities prevented him from securing or following substantially gainful employment since December 2011. The Veteran's highest level of education was one year of college. He last worked in December 2011 as a as a contractor for Honeywell. In a February 2012 statement, the Veteran reported that his shoulder and neck pain decreased his ability to work. In an April 2012 statement, the Veteran indicated that he was on long term disability from his job due to upcoming neck and right shoulder surgeries and decreased range of motion of his shoulder. The Veteran also endorsed difficulty due to his neuropathy of the bilateral arms for which he needed physical therapy. The Veteran was afforded VA examinations in May 2012. The May 2012 VA examiner noted that the Veteran was on short term disability since December 2011 and that his current job required a lot of pulling and lifting. The Veteran endorsed neck pain that was progressively worsening and radiating down both arms. The VA examiner determined that the Veteran's neck and right shoulder disability prevented physical but not sedentary employment due to pain. Despite the conclusions of the VA examiner as to the impact of the Veteran's service-connected neck and right shoulder disability in isolation, the Board finds that throughout the appellate period, the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his combined service-connected disabilities. Given the Veteran's level of education, his history of unemployment since December 2011, and his level of disability due to his cervical spine, thoracolumbar spine, and right shoulder disabilities, bilateral arm neuropathy, bilateral heel spurs, tinnitus, sleep apnea, hypertensive heart disease, and type II diabetes mellitus, the Board finds that the combined effects of those disabilities make it unlikely that the Veteran could secure or follow a substantially gainful occupation consistent with his educational level and occupational experience. It is unlikely that the Veteran would find a work environment that would allow him to miss multiple days due to his fatigue exacerbated by prolonged standing or exertion and sleep apnea or have reduced duties due to his service-connected disabilities. Specifically, the Board finds that the symptoms described by the Veteran due to his multiple service-connected disabilities render him unemployable. Accordingly, the Board finds that the competent evidence, when considered as a whole, is at least in equipoise with respect to the issue of whether the Veteran is unemployable due to the effects of his service-connected disabilities. Therefore, entitlement to a TDIU is granted from the date the Veteran last worked. REASONS FOR REMAND The Veteran contends that his left shoulder disability began in service, due to his duties as a paratrooper for 10 years of active service (approximately half of his military career). The Veteran believes that his post-service jobs further aggravated his left shoulder disability. Alternatively, the Veteran contends that his left shoulder disability was caused or aggravated by his service-connected neck and right shoulder disabilities. A VA medical opinion has not yet been obtained in connection with the service connection claim for a left shoulder disability. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the Veteran's reports attributing his left shoulder disability to his paratrooper duties during service, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that a medical opinion is necessary and should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following actions: 1. Obtain a VA medical opinion to determine the etiology of the Veteran's left shoulder disability. The examiner should address the following: (a.) With respect to his left shoulder disability, is it at least as likely as not (50 percent probability or greater) that this disability arose during service or are otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, on the Veteran's contention that his paratrooper duties resulted in a left shoulder disability. Please note that a medical opinion that concludes that a disease is not related to service solely because there is absence of medical records in service is inadequate. (b.) With respect to his left shoulder disability, is it at least as likely as not (50 percent probability or greater) that this disability was proximately caused or aggravated by his service-connected neck or right shoulder disability, or other service-connected disabilities? The examiner should note that this question requires two separate opinions: one for causation and a second for aggravation. The term "aggravation" means a worsening of the disability beyond its natural progression. If aggravation is found then, to the extent possible, the examiner should attempt to establish a baseline level of severity of the left shoulder disability prior to aggravation by the service-connected disability. (c.) A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.