Citation Nr: 21015070 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-20 072A DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from July 27, 2011, is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 30 percent for left shoulder rotator cuff tear is remanded. Entitlement to a rating in excess of 40 percent for right shoulder rotator cuff tear is remanded. Entitlement to a rating in excess of 20 percent for right shoulder painful surgical scars is remanded. FINDINGS OF FACT From July 27, 2011, the evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW The criteria for entitlement to a TDIU from July 27, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1985 to July 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2011 and August 2015 rating decisions of the Department of Veterans Affairs (VA) regional office (RO) in St. Petersburg, Florida. In a January 2019 decision, the Board granted entitlement to TDIU, beginning December 13, 2012, but not earlier. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2020 memorandum decision, the Court vacated and remanded the claim of entitlement to TDIU prior December 13, 2012, to the Board for readjudication in accordance with the Order. In its memorandum decision, the Court more specifically concluded that the Board had failed to provide an adequate statement of reasons and bases as to why the Veteran was not entitled to an effective date earlier than December 13, 2012 for TDIU. Specifically, there was medical evidence that the Veteran was incapable of gainful employment prior to that date, but the Board did not provide adequate reasons and bases for rejecting this seemingly favorable evidence. TDIU TDIU may be granted where a Veteran’s service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2017). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2015) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16(a). VA policy is to grant TDIU, regardless of the percentages, when service-connected disability actually renders a veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA’s Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. Pursuant to 38 C.F.R. § 4.16(a), marginal employment or the ability to work sporadically shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned annual 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. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims, held that “substantially gainful employment” has both an economic and non-economic component. 38 C.F.R. § 4.16(b). The economic component includes the Veteran’s ability to earn more than a marginal income as evidenced by federal poverty thresholds. The non-economic component involves assessing the Veteran’s actual ability to work. Factors to be discussed include (1) the Veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. 1. Entitlement to a TDIU prior to December 13, 2012 Prior to December 13, 2012, the Veteran’s service-connected disabilities included: (i) right shoulder rotator cuff repair (40 percent); (ii) left shoulder rotator cuff repair (30 percent); (iii) right arm neuropathy (20 percent); and (iv) right shoulder surgical scars (10 percent). Under the Combined Ratings Table, the Veteran’s service-connected disabilities are 80 percent prior to December 13, 2012. 38 C.F.R. § 4.25. Thus, the Veteran met the scheduler percentage requirements for TDIU for this time period. On the March 2012 Veteran’s Application for Increased Compensation Based on Unemployability, VA Form 21-8940, the Veteran indicated that his bilateral shoulder conditions prevented him from securing or following substantially gainful employment. He last worked full time in September 2011 as a supply technician at a medical center but left his job because of his disabilities. He was employed at the time of his application and made $1,600 per month. The Veteran had a high school education but no additional education or training since becoming too disabled to work. While there is evidence that the Veteran was working full-time prior to December 13, 2012, the record reflects that his service-connected disabilities began impacting his ability to work prior to his resignation. Specifically, a February 2009 VA shoulder examiner noted that the Veteran’s right shoulder had impacted his job relating to lifting, pulling, and pushing, which caused absenteeism over the last year, and had a mild effect on sedentary activities. A January 2010 VA examiner noted that the Veteran had problems with lifting and carrying due to his neuropathy of the right shoulder. A June 2011 VA examiner further noted that the Veteran’s bilateral shoulder disabilities impacted his mobility and resulted in problems with lifting and carrying. In October 2011, the Veteran’s treating physician stated that it was clear that the Veteran was substantially and very likely permanently disabled by his shoulder problems and could not perform his duties at work, which included lifting boxes, pulling pallet jacks, and putting boxes on overhead shelves. In September 2014, the Social Security Administration (SSA) found that the Veteran had not engaged in substantial gainful activity since September 18, 2011, due to his severe impairments of the bilateral upper extremities, degenerative disc disease of the cervical and lumbar spine, bilateral lower extremities, and an affective disorder. Regarding the economic component of TDIU, the Board notes that the Veteran made $1,600 monthly prior to December 13, 2012. However, the 2014 SSA adjudicator found that the Veteran had not engaged in substantially gainful activity since September 18, 2011. The Board will resolve reasonable doubt in the Veteran’s favor and award entitlement to TDIU, beginning July 27, 2011, the date he sought an increased rating for right arm neuropathy. Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran’s disabilities is of such nature and severity as to preclude substantially gainful employment beginning on this date. The Board highlights the Veteran’s limited education and limited employment history. He has primarily worked in a manual labor capacity, which is no longer feasible given the service-connected left and right shoulder disabilities. Such positions require constant arm movement, but the evidence indicates that the Veteran’s ability to lift and carry items was significantly impaired prior to December 13, 2012. Therefore, resolving reasonable doubt in the favor of the Veteran, the Board finds that the evidence of record supports entitlement to an award of TDIU, beginning July 27, 2011. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for left shoulder rotator cuff tear 2. Entitlement to a rating in excess of 40 percent for right shoulder rotator cuff tear 3. Entitlement to a rating in excess of 20 percent for right shoulder painful surgical scars The Veteran last received VA examinations for his shoulder conditions in July 2015. Due to the long period of time since the prior VA examination, the Board finds that there is a potential worsening of the Veteran’s hypertrophic gastritis with irritable colon syndrome. Thus, the Veteran should be afforded a new VA examination to assess the current nature and severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination so as to determine the current severity of his bilateral shoulder disabilities. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The bilateral shoulders must be be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that such testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner is also asked to determine whether the Veteran’s range of motion results from the July 2015 VA examination would have been reduced if they had been tested in both active and passive motion and in weight-bearing and nonweight-bearing, and if possible, with range of motion measurements of the opposite undamaged joint. To the examiner’s best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. 2. Schedule the Veteran for an examination with an appropriate examiner to determine the current severity of his right shoulder surgical scars. In providing all of the requested opinion, the examiner should consider the Veteran’s competent lay claims and assertions regarding the observable symptoms he has experienced. The VA 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). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, Associate Attorney 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.