Citation Nr: 21005975 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-52 216 DATE: February 9, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. FINDING OF FACT The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from September 1978 to April 1985. In a September 2019 decision by a Veterans’ Law Judge not the undersigned the Board of Veterans’ Appeal (Board), among other things, denied a rating in excess of 20 percent for a left shoulder disability. The Veteran appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 order, that incorporated the parties August 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s September 2019 decision to the extent that it denied a rating in excess of 20 percent for the left shoulder disability. The Board finds that the appeal raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU Claim The Veteran claims that his service-connected disabilities have prevent him from working. Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The record shows that the Veteran is service-connected for the following disabilities: • migraine headaches rated as 50 percent disabling; • left shoulder disability rated as 20 percent disabling; • left ankle disability rated as 10 percent disabling; • tinnitus rated as 10 percent disabling; • abdominal scar rated as 10 percent disabling; • fractured left fifth finger rated as noncompensable; and • appendectomy scar rated as noncompensable. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) because he has one disability rated as 40 percent or higher at all times during the appeal and he has a combined rating of 70 percent or higher. The question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, the Veteran’s August 2018 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), reports, in substance, that he had not worked full-time and became too disabled to work since February 2014 because of his service-connected disabilities. As to his work history, the Veteran reported that from December 1985 to February 2014 he worked as a materials handler supervisor for the Bureau of Prisons. As to his education, the Veteran reported that he had 4-years of high school. Significantly, as to the Veteran’s being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment as a materials handler supervisor for the Bureau of Prisons, as well as other possible employment that could make use of his work experience and his 4 years of high school, the Board finds that the medical records show that the problems caused by his service-connected migraine headaches, left shoulder disability, left ankle disability, fractured left fifth finger, tinnitus, abdominal scar, and appendectomy scar adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected migraine headaches, left shoulder disability, left ankle disability, fractured left fifth finger, and tinnitus make it dangerous for the Veteran to work in most non-sedentary employments. Id. Similarly, the Board finds that that his service-connected migraine headaches, left shoulder disability, left ankle disability, fractured left fifth finger, and tinnitus would make it very difficult to learn the new skills needed to work in most sedentary employments and thereafter interact with his co-workers as well as any customers as well as carry out the duties required by such employment including keyboarding and filing. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation given his prior vocational history, work experience, his education, and the impact his service-connected migraine headaches, left shoulder disability, left ankle disability, fractured left fifth finger, tinnitus, abdominal scar, and appendectomy scar adversely have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment as a materials handler supervisor for the Bureau of Prisons, because of the problems they would cause in any work environment. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, his education, and the impact his service-connected disabilities and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. REASONS FOR REMAND Initially, as to all the remanded issue, the Board notes that as discussed above the Veteran meets the criteria for a TDIU. Therefore, while the remaining issue on appeal is in Remand status, the Veteran, after consultation with his representative, may wish to withdraw this claim (in writing). Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded As to the claim for service connection for left shoulder disability, the JMPR vacated and remanded the Board’s September 2019 decision because the July 2018 VA examination it relied upon when adjudicating the claim was not adequate because the examiner did not provide the range of motion of the left shoulder during flare-ups as required by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner clearly at the time of the examination had no idea regarding the new requirements cited in Sharp. Therefore, the Board finds that a Remand is required to obtain a new and adequate VA opinion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). While this issue is in Remand status, the RO should also obtain and associate with the record any outstanding private and VA treatment records. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. 3. In order to comply with the JMPR, provide the Veteran with a VA examination to obtain a medical opinion as to the severity of the Veteran’s left shoulder disability. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), any needed testing, and the results of the examination, the examiner is asked to address the following: (a) The examiner should identify all left shoulder pathology found to be present. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. (c) The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing based on the evidence. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) In order to comply with the JMPR, the examiner should also state whether the examination is taking place during a period of flare-up. If the examination is taking place during a flare-up, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If the examination is NOT taking place during a flare-up, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited left shoulder motion caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot provide the range of motion estimate during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.