Citation Nr: 21015333 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-52 312 DATE: March 17, 2021 ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from March 11, 2020, is denied. REMANDED Entitlement to TDIU prior to March 11, 2020, is remanded. FINDINGS OF FACT 1. The weight of competent and credible evidence is against finding that a left shoulder disability began during active service, that left shoulder arthritis was manifest within one year of separation from service, or that a left shoulder disability was otherwise caused by an in-service injury or disease. 2. The evidence does not demonstrate that from March 11, 2020, the Veteran’s service-connected knee and tinnitus disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to TDIU from March 11, 2020, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Marine Corps from October 1983 to March 1986. The Board denied the claim in a January 2020 decision. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court) and in a November 2020 Order, the Court granted an October 2020 Joint Motion for Partial Remand (JMR) that vacated the January 2020 decision with respect to the denial of entitlement to service connection for a left shoulder disability and remanded the issue to the Board. In addition to the left shoulder claim, the October 2020 JMR also stated, “Lastly, the Board determined that Appellant did not meet the schedular requirements for a total disability rating based on individual unemployability (TDIU) as his combined disability rating is currently at 50%. The parties agreed that upon remand, the Board should also readjudicate the claim of entitlement to a TDIU based on reconsideration of the left shoulder claim.” As such, the Board has added the issue of entitlement to TDIU to the issues on appeal. Service Connection 1. Entitlement to service connection for a left shoulder disability Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As there is no evidence or claim that the Veteran was diagnosed with left shoulder arthritis or any other disability applicable to the above provisions within one year of service the above provision is not applicable. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has a left shoulder disability incurred in or otherwise caused by service. As noted above, the claim originally was denied by the Board in a January 2020 decision. The October 2020 JMR concluded that the January 2020 Board decision erred in failing to provide an adequate statement of reasons or bases in denying the claim. Specifically, the Board determined that the record did not show that the Veteran suffered from a left shoulder injury during service. The Veteran, however, reported that while at Camp Las Pulgas, he injured both shoulders at which time he was “held back from field maneuver.” The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of a left shoulder disability or problems related to the left shoulder. As noted above, the Veteran contends that he injured both shoulders during service. The service treatment records include a December 1984 visit for pain in the right shoulder. On examination, there was swelling, muscle spasm, pain, and limited motion in the right shoulder. The assessment was muscle strain. There was no indication of left shoulder problems at that time. During a follow up visit two days later, there was a slight difference noted between right and left shoulder strength and there was limited motion of the right shoulder. The assessment was resolving muscle strain. No problems related to the left shoulder were reported or noted on examination. In January 1985 the Veteran was treated for body ache from playing basketball over the weekend. At that time, the Veteran had full range of motion in all extremities and did not appear to be in acute distress. There were no muscle spasms and bilateral grip was normal with good strength. The assessment was muscle contusions, although the specific muscles were not mentioned. Two weeks later, the Veteran complained of right shoulder pain for 1 week after playing football and basketball over the previous days. He did not report any left shoulder problems. On examination, there was functional range of motion in all extremities, without muscle spasm and with good grip strength. The assessment was muscle contusion. A May 1985 treatment record included the Veteran’s report of right shoulder pain for the previous 3 weeks. He indicated there had been no prior history of that type of problem. The assessment was a soft tissue injury to the right shoulder. At that time, the Veteran did not discuss any current or ongoing left shoulder problems. Nine days later, the Veteran sought treatment for the right shoulder problems and the record stated, “This man is scheduled to go to the field tomorrow…” Of note, examination of the left shoulder was normal, with full range of motion. The right shoulder, by contrast, showed very limited range of motion and could not raise his right arm to shoulder level without moderate pain. The assessment was resolving soft tissue injury to the right shoulder. No diagnosis as to the left shoulder was made and no complaints regarding the left shoulder were documented. A June 1985 treatment documented ongoing right shoulder problems for the previous 6 months for which he had been on light duty. The right shoulder problems were noted to be resolving. At that time, the Veteran did not mention any current or ongoing left shoulder problems. The Veteran’s service treatment records otherwise included treatment for left trunk and left leg problems, but no treatment for the left shoulder. The Board also finds it significant that the Veteran had a normal examination of the upper extremities in his March 1986 Report of Medical Examination prior to separation from service. In October 2008, the Veteran was seen for pain in the neck, upper back, and left shoulder after trauma 3 days previously. October 2008 x-rays showed no evidence of acute fracture or dislocation involving the left shoulder. The Veteran had an examination in February 2012, but the examiner reported the Veteran was uncooperative and would not answer any questions. Therefore, the examiner was unable to render an opinion regarding the Veteran’s left shoulder. In an October 2012 statement, the Veteran acknowledged that he did not injure his left shoulder in service. The statement requested that he review the original claim he had filed, as he knew “nothing of the terms” and related “I hurt my RT shoulder, not the left.” The Veteran had another examination for his left shoulder disability in September 2015. The examiner noted the Veteran’s left shoulder diagnosis of osteoarthritis. The examiner opined the condition was less likely than not incurred in or caused by service. The rationale noted the absence of any in-service evidence of trauma or shoulder condition. In addition, the examiner concluded that the Veteran’s left shoulder disability was due to the aging process. VA treatment records include assessments of left shoulder pain. Thus, the Veteran has a current left shoulder disability. The relevant question, therefore, is whether the Veteran has a left shoulder disability that was incurred in or caused by service. The Board concludes it was not. In reaching that conclusion, the Board finds the September 2015 VA examiner’s opinion of significant probative value. The examiner reviewed the evidence of record, interviewed the Veteran, and conducted a physical examination and concluded that it was less likely than not that that the left shoulder arthritis was incurred in or caused by service. The rationale was based on the absence of documented trauma or complaints regarding the left shoulder during service and, instead, that the most likely cause of the arthritis was the normal aging process. The sole evidence in support of the Veteran’s claim are his contentions. The Veteran is competent to report left shoulder pain and other physically observable symptoms. The Board acknowledges the October 2020 JMR notation that the Veteran had indicated a bilateral shoulder injury that prevented him from being sent to the field for maneuvers. That said, the Veteran has made inconsistent statements in this regard. As noted in an October 2012 statement the Veteran indicated that he had not injured his left shoulder in service, but that it had been his right shoulder. In addition, the service treatment records do not specifically include any left shoulder complaints, but many complaints regarding only the right shoulder – including in May 1985 when he had right shoulder problems but was scheduled to go into the field for maneuvers. Thus, even if the January 1985 complaints of “body aches” included the left shoulder, given the numerous subsequent complaints involving only the right shoulder and the normal examination of the upper extremities prior to separation from service, the Board finds that there is not clear evidence of a continuity of left shoulder problems during or after service. The Board concludes that had the Veteran been experiencing ongoing left shoulder problems from January 1985 or otherwise during service that it is reasonable to expect that he would report such problems when seeking treatment for the other shoulder, which he did on numerous occasions during service. In addition, the first mention of left shoulder problems after service was in October 2008 when he reported left shoulder problems due to trauma occurring 3 days previously. Finally, as noted, the Veteran denied having had a left shoulder injury in service in October 2012. Given the Veteran’s lack of demonstrated medical expertise and the foregoing inconsistences, however, the Board concludes that in this case his statements regarding any such link are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, the Board affords significantly greater probative weight to the September 2015 examiner’s opinion. In conclusion, no medical professional has attributed the onset of the Veteran’s current left shoulder disability to his active service. Moreover, there is inconsistent lay evidence of an in-service left shoulder injury or ongoing problems from service. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. TDIU 2. Entitlement to TDIU from March 11, 2020 It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “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(a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background, including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. As an initial matter and as noted above, the January 2020 Board decision concluded that the issue of TDIU was not on appeal and need not be adjudicated because the Veteran did not meet the schedular requirements for TDIU. That determination was vacated and remanded by the Court. The Board notes that since the January 2020 Board decision an August 2020 rating decision granted entitlement to a 100 percent disability rating for the Veteran’s service-connected psychiatric condition, effective March 11, 2020. For the period from March 11, 2020, the Veteran has a 100 percent rating for his service-connected acquired psychiatric disorder. His remaining disabilities have a combined 30 percent disability rating (tinnitus, left knee arthritis, and right knee tendinitis each are rated as 10 percent disabling and a left knee scar is rated at 0 percent). Of relevance, the Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008) held that there could be a situation where a veteran had a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability or disabilities in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) by having an “additional” disability of 60 percent or more (“housebound” rate). See 38 U.S.C. § 1114(s); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) (discussing VA’s “well-established” duty to maximize a claimant’s benefits). As the Veteran is not in receipt of SMC benefits at the “housebound” rate for the period of the 100 percent rating, the issue of entitlement to TDIU remains before the Board from March 11, 2020. Specifically, the Board must determine whether some combination of the Veteran’s service-connected disabilities other than his acquired psychiatric disorder render him unable to secure and follow a substantially gainful occupation for the period from March 11, 2020. In this case, there is no lay or medical evidence to suggest that the Veteran’s tinnitus and right and left knee disabilities, either singly or combined, render him unable to secure and follow a substantially gainful occupation for the period from March 11, 2020. During the appellate time period the Veteran has been unemployed for the entire period. Prior to the appellate time period, the Veteran had worked many jobs, including as a forklift driver. There is minimal lay or medical evidence regarding the severity of the Veteran’s bilateral knee and tinnitus disabilities for the period from March 11, 2020. As there is no indication that any of these disabilities has worsened in the last few years, the Board will use evidence from before the appellate time period. During a November 2013 VA examination, the Veteran contended that the tinnitus affected his ability to hear because the noise in his ears was very loud. During a September 2015 VA knee examination, the Veteran had knee ranges of motion from 0 to 100 degrees in the right and 0 to 85 degrees in the left. There was no further loss of motion with repetitive motion testing. He reported pain in the right knee that was deep and dull, but sometimes sharp, which made ambulation difficult and painful. There were flare-ups during which the Veteran limited physical activity and rested. There was functional loss in that the Veteran indicated that he could not walk as before. Muscle strength was normal in the right knee and 4 out of 5 in the left knee. There was no muscle atrophy or ankylosis. There was no evidence of instability. The Veteran regularly used a brace. The examiner indicated that the Veteran was limited to a sedentary type job with restrictions that would preclude heavy lifting, carrying, pushing, or pulling. He also would not be able to do any prolonged standing or walking activities. Based on the evidence of record, the Board concludes that from March 11, 2020, the Veteran’s service-connected disabilities, singly or combined, did not render him unable to secure and follow a substantially gainful occupation. The Board recognizes that the Veteran was unemployed for the entirety of the period. In addition, the evidence demonstrates that the Veteran would be unable to do physically demanding jobs with an extensive amount of lifting, pushing, or pulling. He also would not be able to do a job requiring extended standing or walking. Finally, the Veteran’s tinnitus likely would make jobs requiring significant interaction with others or requiring extensive listening difficult. That considered, the Veteran has experience as a forklift driver and the above limitations would not impact that type of job involving extensive sitting and limited lifting, pulling, or pushing by the operator. The Board recognizes that the Veteran’s pain medication for his knees carry a warning regarding possible impact on his ability to operate a forklift, but there is no specific evidence that he was told not to operate machinery while using the pain medication. Similarly, the Veteran would not be precluded from a position in security that primarily involved monitoring security feeds from a primarily seated position, as his knee and tinnitus problems would not impact that type of work. In addition, there are numerous jobs that permit employees to shift positions as necessary. Based on the foregoing, the Board finds no basis for granting entitlement to TDIU for any period from March 11, 2020. The Board acknowledges that the Veteran’s service-connected knee and tinnitus disabilities have some effect on his occupational functioning. However, the ratings assigned recognize the industrial or commercial impairment resulting from his disorders. As such, for the reasons and bases set forth above, the preponderance of the evidence is against finding his service-connected disabilities other than his acquired psychiatric disorder (singly or in combination) were of such severity so as to preclude his participation in any form of substantially gainful employment from March 11, 2020. REASONS FOR REMAND 1. Entitlement to TDIU prior to March 11, 2020 For the period from June 30, 2015, to March 11, 2020, the Veteran’s combined disability rating is 50 percent. Thus, he does not meet the schedular requirements for TDIU for this period. A March 2018 private psychiatric review concluded that the Veteran showed significant psychiatric impairment to the point where he already was found as not capable of maintaining any gainful occupation by the Social Security Administration (SSA). The Veteran had difficulty interacting appropriately with other individuals, including belligerent, aggressive and even assaultive behavior. The Veteran reported having been arrested over 50 times. The reviewer indicated that the Veteran exhibited aggressive and disinhibited behavior, as evidenced by his legal encounters, inability to keep a job for an extended period, his divorce, difficulties maintaining family relationships, and his generally confrontational, aggressive, and disruptive behavior. The Board notes, however, that the evaluation was done based entirely on review of the Veteran’s records and there is no indication that the reviewing psychiatrist actually interviewed or otherwise examined the Veteran. The above findings were supported in an August 2020 Mental Disorders Disability Benefits Questionnaire (DBQ) that also found the Veteran to have total occupational and social impairment due to his service-connected acquired psychiatric disorder. On this basis, the Veteran was awarded a 100 percent rating for his acquired psychiatric disorder. The effective date for this rating is not on appeal. In light of the foregoing, the Board finds that there is sufficient evidence to suggest the possibility of a total disability rating based on individual unemployability and a remand of the issue is necessary for review by the agency of original jurisdiction in the first instance and referral to the Director, Compensation Service, for extraschedular consideration for the period prior to March 11, 2020. The matters are REMANDED for the following action: 1. Refer the Veteran’s claim for entitlement to TDIU prior to March 11, 2020, on an extraschedular basis to VA’s Director, Compensation Service, for adjudication in accordance with 38 C.F.R. § 4.16(b). (continued next page) 2. After the above is complete, readjudicate the claim. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.