Citation Nr: 21005773 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-09 134A DATE: February 2, 2021 ORDER Total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT From August 1, 2015, the Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment. CONCLUSION OF LAW From August 1, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Navy from March 1974 to March 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified in support of this appeal during a hearing held at the Seattle, Washington RO before the undersigned Veterans Law Judge. In December 2017, the Board issued a decision denying an increased rating for a back disability. In an October 2018 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for remand (JMR), vacated the Board’s December 2017 decision, and remanded the case for further action consistent with the terms of the joint motion. As noted above, this matter was returned to the Board pursuant to an October 2018 JMR. “A joint motion for remand, when drafted properly, identifies … clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand. This increases both administrative and judicial efficiency.” Carter v. Shinseki, 26 Vet. App. 534, 541 (2014), vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). In November 2019, the Board remanded this matter for further development. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board notes that the Veteran was employed full-time for part of the appeal period. At his May 2017 hearing, the Veteran testified that he left his last job in August 2015. Income records submitted from the Veteran indicate that he received income from 2010 to 2015 above the poverty threshold for one person, rendering him ineligible for a TDIU. See 38 C.F.R. § 4.16(a). In his application for a TDIU, the Veteran reported that July 31, 2015 was the last day he worked full-time. As such, the Veteran is not eligible for a TDIU prior to August 1, 2015 as he maintained substantial and gainful employment during that time. From August 1, 2015, the Veteran is service connected for left shoulder arthoplasty, cervical intervertebral disc syndrome, neuropathy of the left ulnar nerve, tinnitus, bilateral hearing loss, headaches, and left shoulder scar. The Veteran’s combined rating is 70 percent, and his left shoulder arthroplasty is rated at 50 percent disabling. As such, he meets the schedular criteria for a TDIU. The Central inquiry in determining whether a TDIU is warranted is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.16, 4.19. Upon review of all evidence of record, the Board finds that the most probative evidence of record demonstrates that from August 1, 2015, the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. At his May 2017 hearing, the Veteran testified about his limitations due to his left shoulder arthroplasty. The Veteran was employed as a millwright until August 2015 because he was unable to perform his work requirements. The Veteran’s representative stated that the Veteran could not lift or hold the heavy equipment used in his work. The Veteran also testified that he could not drive with his arm due to a lack of grip. His representative also relayed that the Veteran had stated he can perform only about an hour-and-a-half of computer work before his shoulder pain causes him to stop. The Veteran stated that the lacks grip in his left arm to pick objects up, the pain averages a 6 and 9 out of 10, that he takes pain medication five to six times a month, and six times a week he uses Advil to relieve the pain. The claims file includes VA treatment records documenting the extent of the Veteran’s disabilities. In a November 2015 orthopedic outpatient visit note, it is documented that the Veteran had retired secondarily to a weight restriction of his left shoulder and continued pain. In an August 2019 primary care note it is noted that the Veteran has been taking tramadol daily for his shoulder pain and has been on opioid medication for at least a decade. In October 2019, the Veteran underwent examinations for his left shoulder arthroplasty, neuropathy of the left ulnar nerve, cervical intervertebral disc syndrome, and headaches. The examiner noted that the Veteran’s neck disability and left arm disabilities impacted his ability to work. Specifically, his left shoulder disability and neuropathy limited the Veteran’s ability to lift more than 25 pounds, inability to perform overhead activities, and limited dexterity activities involving his left hand. Regarding his neck, the examiner noted that the Veteran would need to have a role that limited repeated neck movement. The examiner did not find the Veteran’s headache disability to impact his ability to work. In an August 2019 application for TDIU, the Veteran reported that he last worked as a millwright from April 2005 to July 2015 and that he left his job because of his disability. The Veteran also completed four years of college having received two associate degrees, an automotive degree and one in environmental management. The Veteran submitted an August 2019 letter from a physician opining on the Veteran’s capacity to work. The physician reviewed the Veteran’s medical history and opined that the Veteran is unable to work due to his shoulder and neck disabilities. This is based on the Veteran’s occupational history being limited to physically strenuous jobs and his use of opioid medication to treat the pain from his disabilities. The Veteran’s representative submitted a September 2019 brief arguing that a TDIU was warranted. The representative argued that despite the Veteran’s education, a TDIU should be granted based on the Veteran’s vocational history being limited to physically demanding work. The representative also argued that though the Veteran did work as a project manager for a period at his last job, he was still unable to meet the physical demands for that position. Based on the information above, the Board finds that from August 1, 2015, the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment. Though the Veteran has two associate degrees, his work history has been limited to physically demanding labor that he can no longer perform due to his left shoulder disability, neuropathy of the left ulnar nerve, and neck disability. As found in his October 2019 examinations, the Veteran is unable to lift objects more than 25 pounds and cannot perform any tasks that would require overhead work. These limitations preclude the Veteran from returning to physically demanding work. At his May 2017 hearing, the Veteran’s representative stated that the Veteran was unable to perform repeated tasks, like typing on a computer, without his left arm giving out after an hour and a half. This is supported by the finding in the October 2019 examination that the Veteran’s neuropathy of the left ulnar nerve limits his ability to perform dexterous tasks with his left hand. This limitation would prevent the Veteran from maintaining employment that would require him to complete repetitive tasks using his left hand. Considering the Veteran’s employment history and education, the Board finds that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. As such, the Board finds that from August 1, 2015, a TDIU is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.