Citation Nr: 21009051 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-34 399A DATE: February 18, 2021 ORDER Entitlement to service connection for right shoulder glenohumeral joint osteoarthritis and bicipital tendon tear (right shoulder disability) is denied. Entitlement to a total disability rating due to individual unemployability (TDIU), including on an extra-schedular basis, also is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's current right shoulder disability began during his active military service or manifested to a compensable degree within a year of his discharge from service or is otherwise related or attributable to an in-service injury, disease or event or service-connected disability, either in the way of causation or aggravation. 2. His service-connected disabilities have not precluded him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work experience and training. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for right shoulder disability. 38 U.S.C. §§ 1101, 1131, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria are not met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from February 1978 to June 1979. This appeal to the Board of Veteran’s Appeals (Board) is from a June 2012 rating decision by at Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these claims in April 2018 and again in June 2020 for further development and consideration, including to obtain any outstanding treatment records and for needed medical opinions, especially concerning whether the Veteran’s right shoulder disability is attributable to his military service. There since has been compliance, certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); but see also Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (clarifying that substantial compliance, rather than strict compliance, is required). With regard to the Veteran's representative in this appeal, the Board points out that, following certification of an appeal to the Board, a representative may not withdraw representation without good cause shown on motion, and a copy of such motion must be sent to the Veteran, who must be provided the opportunity to respond within 30 days of receipt. 38 C.F.R. § 20.608. The Veteran previously was represented in this appeal by a private agent when the Board remanded these claims back to the Agency of Original Jurisdiction (AOJ), i.e., RO in April 2018.   However, prior to recertification of this appeal to the Board, the Veteran submitted a VA Form 21-22 (Appointment of Veterans Service Organization (VSO) as Claimant Representative) designating The American Legion (AL) as his new representative in this appeal. The claims were recertified to the Board and this VSO consequently was duly listed as his new representative when the Board again remanded these claims back to the AOJ in June 2020. In February 2021, this VSO provided a statement contrarily maintaining that its representation of him is improper as no good-cause-motion has yet been submitted by him to withdraw his prior representative. However, he effectively withdrew his prior representative with submission of the new VA Form 21-22 that was filed, instead, in favor of the VSO (AL). Thus, unless and until he acknowledges the withdrawal of this most recent representative, no change in representation from this VSO may be recognized. 1. Entitlement to service connection for a right shoulder disability The Veteran asserts that his current right shoulder disability resulted from a fall during his time in service. He says that he has experienced continual problems with this shoulder ever since that injury in service. Service connection may be established for disability resulting from a disease or an injury incurred in or aggravated during active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) evidence of a correlation (“nexus”) between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). After considering all information – including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   The question for the Board is whether the Veteran has a current disability that began during his service or, since involving arthritis, manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of his discharge from service to, in turn, warrant presuming it was incurred during his service, or that is otherwise related or attributable to an injury, event, or disease during his service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). As will be discussed, the Board concludes that, while there is no disputing the Veteran has a current diagnosis of right shoulder glenohumeral joint osteoarthritis and bicipital tendon tear (so a present-day right shoulder disability), the preponderance of the evidence weighs against finding there also is the required correlation ("nexus") between this current right shoulder disability and anything that occurred during his time in service – including the specific fall mentioned. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's service treatment records (STRs) are unremarkable for any complaints specifically referable to his right shoulder, including owing to pain following his fall injury. He acknowledges that he did not seek contemporaneous medical treatment for the injuries sustained in that fall while in service but notes that he has seen multiple medical providers in the years since that injury. See DRO Hearing Testimony, dated June 16, 2014 at page 8. The Veteran's military service ended in June 1979. His post-service treatment records show he had numerous complaints – but, notably, regarding pain instead in his left shoulder. VA treatment records show he had surgery on his right shoulder in February 2011, and an April 2015 private treatment record indicates his right shoulder pain had been present for only 5 years, so only since 2010. This means his right shoulder pain did not start until many years, in fact decades, after his military service ended, so long after any injury he may have sustained to this shoulder in the purported fall in service. This is evidence against the notion of any correlation (“nexus”) between that fall in service and eventual indication of a right shoulder disability. See Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). It is true that the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The Veteran describes the symptoms he has experienced over the years referable to this shoulder as sharp and aching pain – which he says worsen with activity and movement. In February 2020, he submitted a written statement attesting that the surgeon who had performed his surgery had stated that his shoulder was the worst one he had ever operated on, and he has never viewed one that bad before surgery.   The August 2020 VA examiner, however, when asked on remand to comment on the etiology of this claimed right shoulder disability in relation to the Veteran’s military service, ultimately determined this disability is less likely than not related to his service. This VA examiner reasoned that the Veteran’s STR’s are entirely unremarkable for a diagnosed right shoulder condition during his service. And although, as mentioned, that alone is not entirely dispositive, this VA examiner explained that it is reasonable to assume that, if the Veteran had sustained significant trauma to his right shoulder during his service (as he now claims he did), he would have sought evaluation and treatment for the right shoulder injury at the time the fall injury occurred. There is no such indication, however. Moreover, this VA examiner further observed the Veteran was diagnosed with osteoarthritis of the right shoulder joint in 2011, so not until over 30 years following his separation from service. This VA examiner explained that osteoarthritis is damage to joint cartilage caused by wear and tear of a joint associated with aging. This VA examiner further explained that, although the Veteran was diagnosed with right bicipital tendon tear in 2011, 3 months following his surgery, the right bicipital tendon tear is unrelated to his right shoulder surgery in 2011. In sum, this VA examiner concluded the Veteran’s right shoulder disability is not related to nor was incurred during his military service. This VA examiner opined that it is more likely than not the arthritic changes to the Veteran’s right shoulder, instead, are age related. This examiner's opinion is probative because it contains clear conclusions, supporting data, and the required explanation or underlying reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that most of the probative value of a medical opinion comes from the discussion of its rationale). To the extent the Veteran himself believes that his right shoulder disability is related to his service, and especially to the fall mentioned, he is only competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). The determination of whether medical versus lay evidence is needed to support a claim is based on the type of condition being claimed – including in terms of whether it is simple versus complex. Kahana v. Shinseki, 24 Vet. App. 428 (2011). And, as concerning this determinative issue of causation of right shoulder glenohumeral joint osteoarthritis and bicipital tendon tear, this is a medical determination outside the realm of common knowledge of a lay person. 38 C.F.R. § 3.159(a)(1) and (2). In other words, he is competent to state that he has had right shoulder pain since service; however, even were the Board to accept for the sake of argument that is true (which, as explained, is not indicated), the clinical evidence of record in any event indicates that his present-day right shoulder disability due to simple aging, not instead to anything that may have occurred during his military service. Therefore, ultimately, the VA examiner's medical opinions are more probative than the Veteran's lay assertions regarding the origins of his right shoulder disability and its claimed relationship with his service. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). In summary, the Veteran's right shoulder disability did not incept during his service and did not even for many ensuing years. Rather, it was not first diagnosed until 2010, approximately 30 years after conclusion of his service. And although that, alone, is not a preclusion to granting service connection (see 38 C.F.R. § 3.303(d)), the most probative (meaning most competent and credible) evidence of record disassociates his right shoulder disability from his service. The arthritis did not initially manifest within a year of his discharge from service to allow for presuming it was incurred during his service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board thus concludes the weight of the evidence is against finding the required correlation (“nexus”) between the Veteran's military service and his current right shoulder disability. Since the preponderance of the evidence is against his claim, there is no reasonable doubt to resolve in his favor, and his claim resultantly must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   2. Entitlement to a TDIU, including on an extra-schedular basis. The Veteran contends that his service-connected disabilities preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability. For schedular consideration, a Veteran must meet one of the following conditions: 1) a single service-connected disability rated at 60 percent or more, or 2) at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper or both lower extremities or singly bodily systems are treated as one, collective, disability. 38 C.F.R. § 4.16(a). The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, while a VA examiner's opinion is not dispositive, the observations of the examiner regarding functional impairment due to the service-connected disability goes to the question of physical or mental limitations that may impact a Veteran's ability to obtain and maintain employment. The Veteran filed a claim for a TDIU in July 2011 in conjunction with his increased rating claim for his left knee disability. Service connection has been established for unspecified depressive disorder with somatic symptom disorder with predominant pain associated with total left knee replacement at 30-percent disabling from November 6, 2015 and 50 percent from December 27, 2016; total left knee replacement at 10-percent disabling from October 22, 2003, 100 percent from January 26, 2017 to February 28, 2018, and 30 percent since March 1, 2018; limitation of motion of the left knee, 10-percent disabling from October 22, 2003 to January 26, 2017; hallux valgus of the right foot at 10-percent disabling from March 1, 2008; tinnitus at 10-percent disabling since August 16, 2011; bilateral hearing loss at 0-percent disabling (noncompensable) since August 16, 2011; and scars, status post left total knee replacement also at 0 percent but since January 26, 2017. Prior to December 27, 2016 (and except for when he had a temporary 100 percent convalescent rating in 2008 under 38 C.F.R. § 4.30, outside the review period under consideration), the Veteran’s combined schedular rating was, at most, 60 percent. Resultantly, for the purpose of reaching the threshold schedular rating for a TDIU prior to December 27, 2016, he does not. Since the Veteran does not meet the § 4.16(a) schedular rating requirements for a TDIU prior to December 27, 2016, the Board must consider whether his service-connected disabilities nonetheless rendered him unemployable, such that referral of this claim for extra-schedular consideration for this earlier period is necessary under the alternative special provisions of § 4.16(b). The Board is precluded from granting a TDIU on an extra-schedular basis in the first instance but is not precluded from determining whether this special referral is warranted. However, since December 27, 2016, the Veteran has had a combined rating of at least 70 percent with at least one disability rated as 50-percent disabling. As such, since December 27, 2016, his service-connected disabilities have met the schedular rating requirements for TDIU consideration on a schedular rather than extra-schedular basis. This even excludes the period from January 26, 2017 to February 28, 2018 when he again had a temporary 100 percent rating – this time, however, owing to his total left knee replacement and during which he additionally received special monthly compensation (SMC). As such, the Board will only consider whether a TDIU is warranted from December 27, 2016 to January 26, 2017 and since March 1, 2018 because this is not the type of situation when the Veteran can have a TDIU concurrently with a 100 percent schedular rating. Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250-251 (2010).   Moreover, the Board finds that his service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation at any point during the appeal period such that referral for extra-schedular consideration is warranted pursuant to 38 C.F.R. § 4.16(b). The Veteran completed three years of college. Turning to his work history, his Social Security Administration (SSA) records show he previously worked as a server, manager, waiter, and owned and operated his own landscaping company. During several of his various jobs, he reported that his responsibilities included writing, completing reports or similar duties. He also reported lifting less than 10 pounds frequently. Of the evidence that is available for consideration, it does not show the Veteran is unemployable owing to his service-connected disabilities. It is clear from the reports of his VA examinations that his disabilities impair or hamper his ability to perform some functions of employment, but that, alone, is not tantamount to concluding he is unemployable – especially inasmuch as the various individual ratings for his service-connected disabilities recognize there is some impairment of his earning capacity because of them. 38 C.F.R. §§ 4.1, 4.15. A TDIU requires more occupational impairment than that, even if not total occupational impairment. The Court clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So, above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for a TDIU to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment.   A May 2012 VA hearing loss and tinnitus examiner opined that these disabilities do not impact the Veteran’s ability to work. Another May 2012 VA examiner opined that the Veteran’s service-connected degenerative joint disease (i.e., arthritis) of the left knee (which he had before his total left knee replacement with a prosthesis), limitation of motion of his left knee, and hallux valgus of his right foot would not be an impairment for the sedentary aspects of employment. This VA examiner explained that modifications for the physical aspects of employment would include aversion from prolonged standing, repetitive bending, and prolonged walking. An October 2017 VA examiner stated that the Veteran’s knee pain would limit his ability to be on his feet for long periods of time without pain. A February 2020 VA examiner opined that the Veteran’s knee pain would impact his ability to perform tasks that require prolonged walking and standing. A VA examiner opined in March 2020 that the Veteran had no job-related difficulties secondary to his service-connected mental health issues; however, his depression that is a result of his pain limits his ability to work. The Board has considered these several medical opinions on this determinative issue, but the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; instead, this determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). And here, ultimately, given the Veteran's level of education, skill, and prior work experience and training, including in jobs having little-to-no inherent physical requirements, the Board finds that his service-connected disabilities do not render him unemployable. Before the Board can find that he is still capable of sedentary employment (even if not work that is more physically demanding), the Board must first define sedentary work. See Withers v. Wilkie, 30 Vet. App. 139, 147-49 (2018) (holding that, if the Board relies on an examiner's conclusion that a Veteran is capable of sedentary work in denying a TDIU, it must determine the meaning of sedentary work “from the particulars” of the opinion and explain how it interprets the examiner's use of the term). The SSA defines sedentary work as work that involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R. § 404.1567. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Id. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. Id. The Board finds this definition persuasive, as SSA is charged with determining the capacity of an individual to satisfy the exertional requirements of different jobs in the national economy in adjudicating disability claims. Moreover, although SSA determinations and findings and standards are not binding on VA adjudicators, they often nonetheless are relevant to deciding VA claims especially, as mentioned, in the disability context. See Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while an SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a Veteran's claim); see also Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Although the VA examiners agreed that the Veteran's service-connected disabilities prevent him from completing strenuous physical activities – including particularly if involving prolonged standing and walking, they ultimately concluded that this impairment does not impede his ability to still work, nonetheless, in less physically demanding jobs, albeit with some measure of modification but not rising to the level of a protected work environment or accommodation that would warrant concluding it is tantamount to just marginal employment. 38 C.F.R. §§ 4.16, 4.18. The May 2012 examiner explained that the Veteran can complete sedentary employment with reasonable modifications. The Veteran's occupational history, education, skill, and training would not prevent him from securing or following a substantially gainful occupation in a sedentary capacity. He has a high school diploma and some additional education at the college level and, thus, he has the basic reading and writing abilities or skills needed to perform sedentary work. Moreover, in several of his occupations in years past, he was required to complete reports or similar duties. This suggests he has the skill to perform sedentary work, such as in an administrative role.   Thus, in sum, the Board finds that the evidence does not establish that the Veteran was unemployable due to his service-connected disabilities. Because, for the reasons and bases discussed, the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.