Citation Nr: 21011452 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 09-23 318A DATE: March 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from May 21, 2007 to September 14, 2007, is denied. Entitlement to TDIU on an extraschedular basis from May 21, 2008 to November 24, 2015 is granted. FINDINGS OF FACT 1. From May 21, 2007 to September 14, 2007, the Veteran’s service-connected disabilities did not prevent him from securing or following gainful employment. 2. Resolving doubt in the Veteran’s favor, the Veteran is unable to secure and maintain substantially gainful employment as a result of his service-connected disabilities from May 21, 2008 to November 24, 2015. CONCLUSIONS OF LAW 1. From May 21, 2007 to September 14, 2007 the criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 4.16(b). 2. From May 21, 2008 to November 24, 2015 the criteria for TDIU due to service-connected disabilities on an extraschedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1979 to April 1982. Issues 1-2: Entitlement to TDIU from May 21, 2007 to September 14, 2007 and from May 21, 2008 to November 24, 2015. 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(a). Marginal employment will not be considered substantially gainful employment and will be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). If the schedular rating is less than total, a total rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he/she 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. 38 C.F.R. § 4.16(a). If not, all veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If 4.16(a) is not met, the case will be referred to the Director of the Compensation Service, for extraschedular consideration of all veterans who are unemployable by reason of service-connected disabilities. Id. The Board notes that as pointed out in the October 2020 VA Memorandum requesting Administrative Review for Entitlement to TDIU during the periods addressed herein, the Regional Office (RO) noted that the July 2020 rating decision that implemented the September 2019 Board decision granting a 40 percent rating from February 1, 2008 to February 28, 2008 erred in not reflecting in the code sheet a 20 percent rating effective May 21, 2008 which resulted in the Veteran’s overall combined evaluation increasing to 60 percent for the period beginning effective February 1, 2008 meeting the schedular requirements for entitlement to individual unemployability. The RO further noted that in order to not adversely impact the Veteran, action to correct this error is pending the outcome of this determination of entitlement to individual unemployability effective May 21, 2008 to November 24, 2015. The Veteran’s claim of entitlement to TDIU was received in May 2008. However, as the evidence indicates that the Veteran has been unable to work due to his service-connected left shoulder disability, his claim for TDIU arose as part of his claim for a higher rating for his left shoulder disability received on May 21, 2007, (which is no longer in appellate). Thus, the Veteran’s TDIU claim is on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) since May 21, 2007. The Veteran is service connected for the following disabilities: degenerative joint disease of the left shoulder with painful and limited range of motion rated as 20 percent disabling from May 21, 2007, zero percent from September 14, 2007, 40 percent from February 1, 2008 to February 28, 2008, 20 percent from May 21, 2008, and 40 percent from November 24, 2015; degenerative joint disease of the left shoulder with recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements rated 20 percent from April 13, 2006, 30 percent from May 21, 2007, 100 percent from September 14, 2007, and 30 percent from February 1, 2008. The Veteran has been in receipt of a zero percent rating from May 21, 2007 for a left shoulder scar. For the period from May 21, 2007 to September 14, 2007, and from May 21, 2008 to November 24, 2015, the Veteran is service-connected for limitation of motion of the left arm, rated as 20 percent disabling; left shoulder degenerative joint disease, rated as 30 percent disabling; and left shoulder scar, rated as zero percent disabling. The combined rating is 40 percent and thus, does not meet the schedular criteria for TDIU. Therefore, the Board is to consider whether 38 C.F.R. § 4.16(b) is for application. Fanning v. Brown, 4 Vet. App. 225, 229 (1993). On VA examination dated on September 10, 2007 the examiner noted that the Veteran worked in heating and air conditioning, which required crawling under houses and climbing ladders. The examiner found that his employment activities were moderately affected by his left shoulder particularly because the Veteran was left handed. On September 14, 2007 the Veteran underwent surgery for his left shoulder. The procedures performed included diagnostic arthroscopy, Bankart repair, posterior labral and capsular plication, and debridement. In statements including in January 2008 and March 2008 the Veteran contends that he is unable to work due to his left shoulder disability. A May 2008 VA occupational therapy note shows the Veteran was unemployed noting his report of being unable to do anything with his left shoulder. On the TDIU claim received in May 2008, the Veteran indicated that he last worked full time on September 7, 2007 and became too disabled to work on September 14, 2007. He indicated that from January 2007 he has been self-employed working in heating, ventilation and air conditioning (HVAC) and lost 6 months from work due to his service-connected left shoulder disability. Prior to that, from September 2006 to January 2007 he worked for Petty Heating/Cooling and lost approximately two weeks due to illness. The Veteran indicated that he had a high school education and was trained including in HVAC, plumbing, and pipefitting. In a statement in August 2008 the Veteran contends that he has been unable to work since his left shoulder surgery on September 14, 2007. In a statement in February 2009 the Veteran explained that he was left hand dominant and had a difficult time making adjustments. A decision from the Social Security Administration (SSA) reflects that in December 2008, it was determined that the Veteran had not engaged in substantial gainful activity since April 1, 2006, in part due to his left shoulder disability. On VA examination in September 2013, the examiner opined that the Veteran’s shoulder disability impacted his ability to work. April 2014 private medical records show that the Veteran would benefit from either a total shoulder surgery versus a reverse total shoulder surgery, however the examiner noted that this would be challenging because he has had surgeries which have tightened his shoulder. The main reason for the surgery would be to decrease the pain and get some increase in range of motion, however the examiner was much more skeptical about this because the Veteran had so much surgery in the past. Evidence against the claim includes a December 2020 opinion from the Director of the Compensation Service. The Director of the Compensation Service noted that information from Wilson Lumbar shows the Veteran worked in labor in door shop/production and the last date of employment was January 26, 2006. It was noted he failed to show for work. The Director pointed out that the Veteran noted he was last working for himself doing HVAC work in September 2007. The Veteran has a high school education and additional training for HVAC and plumbing. The Director acknowledged that the evidence shows the Veteran had marked decrease in range of motion of the left shoulder and was not able to do work which required lifting with the left arm or raising the left arm above the chest level. The Director concluded that the preponderance of the evidence does not show that the Veteran’s service-connected disability prohibits the Veteran from obtaining or maintaining gainful employment. The Director noted that there are many jobs in today’s workplace that require only light activity and for which a person with a high school education would be capable of performing. For the period from May 21, 2007 to September 14, 2007 the evidence shows and the Veteran himself avers that he was working full time as of September 7, 2007 and became too disabled to work on September 14, 2007. To the extent that the SSA determination shows that the Veteran had not engaged in substantial gainful activity since April 1, 2006, the Board is not bound by SSA determinations, despite their relevance. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The Veteran himself in March 2018 stated that he was requesting TDIU benefits effective date of his claim in 2008. Consequently, TDIU is not warranted from May 21, 2007 to September 14, 2007. Upon review of the evidence summarized above, the Board finds that from May 21, 2008 to November 24, 2015, the evidence is at least in equipoise as to the question of whether TDIU may be assigned. Resolving all doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise to support the grant of entitlement to TDIU on an extraschedular basis from May 21, 2008 to November 24, 2015. As noted, the Veteran has a high school education and a history of physically laborious employment that is heavily impacted by the decreased function of his left (dominant) shoulder. Thus the Board finds that the evidence is in equipoise under 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 and TDIU is granted on an extraschedular basis from May 21, 2008 to November 24, 2015. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.