Citation Nr: 21026322 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-58 811 DATE: April 30, 2021 ORDER Entitlement to a total disability rating based on individual unemployability to include on an extraschedular basis due to service-connected disability (TDIU) from October 11, 2006 to February 23, 2009 is denied FINDING OF FACT For the period between October 11, 2006 and to February 23, 2009, the Veteran was not precluded from securing and following substantially gainful employment due to her service-connected disabilities CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU, including on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January to April 1998 and from September 2000 to December 2004. In January 2020, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. The appeal was remanded for additional development in March 2020, that development is complete, and the appeal is now ready for adjudication. TDIU from October 11, 2006 to February 23, 2009 TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to the 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. See 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). For the period considered on appeal, the Veteran was service connected for right shoulder multidirectional instability, rated as 20 percent disabling, mild physiological anisocoria with right dry eye syndrome, rated as 10 percent disabling, and chronic vaginitis, rated as 10 percent disabling with a combined evaluation of 40 percent, therefore the schedular criteria for a TDIU are not met. See 38 C.F.R. § 4.16(a). However, the failure to meet the schedular percentage requirements prior to that date does not preclude the availability of a TDIU rating on an extraschedular basis. Since the Veteran's claim of entitlement to a TDIU on an extraschedular basis was denied by the Director, the Board may address the merits of the Veteran's claim for entitlement to a TDIU on an extraschedular basis. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The Board must determine, as questions of fact, both the weight and credibility of the evidence. Statements regarding a veteran's active service must be viewed in conjunction with other evidence of record. The probative value of statements is determined by the persons' competency as well as their credibility insofar as their statements and/or testimony concerning a veteran's service are consistent with other evidence of record. See Rucker v. Brown, 10 Vet. App. 67 (1997), Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, defined as "a legal concept determining whether testimony may be heard and considered" and credibility, defined as "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). "Credibility involves more than demeanor," and embraces "the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence." Carbo v. United States, 314 F.2d 718, 749 (9th Cir. 1963). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, the demeanor of the witness, the facial plausibility of the testimony, the internal consistency of the testimony, impairment in memory, or, to a certain extent, bad character, among other factors. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In particular, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must analyze the probative value of all material evidence submitted by and on behalf of a veteran, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to a veteran. See Struck v. Brown, 9 Vet. App. 145, 152 (1996). A person's credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholas, 19 Vet. App. 362, 368 (2005). While the question before the Board is whether the Veteran was unemployable between October 11, 2006 and to February 23, 2009, some evidence outside of the appeal period is considered in order to better inform the Board. The evidence of record includes a November 2004 gynecological condition examination which included a diagnosis of chronic vaginitis. The Veteran described some personal impairments due to the condition but no impairment with work was noted. In a November 2004 examination, the Veteran reported watering and burning of the right eye ever since a 2001 LASIK surgery. The Veteran denied decreased, blurred or distorted vision. In a January 2005 application for vocational rehabilitation, the Veteran reported that she was not employed, she stated that a barrier that she felt reduced her ability to get or hold a job was her right shoulder injury. She stated she was in constant pain and unable to put her arm above her head or rotate it for any time. A February 2005 functional evaluation for vocational rehabilitation included the Veteran’s report that he had been unemployed since leaving the military but was attending school on a full-time basis. It was noted that she hoped to obtain a degree and enter the labor market as a teacher. She noted that she would need a job that was less physically demanding than most of her past military work. It was noted that the Veteran reported she was able to stand or walk for four to six hours per day and sit for four to six hours a day, and that she could thus complete a full workday. Private treatment notes from Rice Creek Family Medicine include an April 2006 treatment note in which the Veteran reported symptoms unrelated to a shoulder injury after she re-arranged her living room furniture, heavy lifting was noted. Treatment records note vaginitis without itching or significant discharge. Shoulder pain was not noted. An August 2006 examination noted that the Veteran complained of some sensitivity to light and watering of the eyes with decreased or blurry vision in the right eye. An August 2006 VA examination of the right shoulder included the Veteran’s complaints of right shoulder pain all day every day which was a 9 out of 10 in severity. It was noted that the Veteran was not currently employed because she was a student. She denied that her activities of daily living or her recreational activities were affected by her shoulder. The examiner noted that x-rays were normal and despite the Veteran’s complaints he found no objective evidence to support a specific diagnosis. In an October 2006 application for TDIU, the Veteran reported that her right shoulder pain prevented her from securing or following substantially gainful employment since May 2003. She stated that she last worked in 2004 when she was in the Army. The Veteran noted that she had taken classes at a technical college but had not yet completed a degree. At a February 2007 examination, the Veteran reported that she endured her shoulder pain during her chores and predominantly drove with her left arm and was not otherwise precluded in daily activities by shoulder pain. In a March 2007 correspondence; however, she stated that she had missed many days of school due to unbearable pain. She stated that she was unable to hold a job because of her pain. The record includes May 2007, July 2007 and November 2008 statements submitted in support of the Veteran’s claim from the Veteran’s friends and husband note that the Veteran struggled with daily tasks due to her shoulder and back pain and had to rely on friends and family to help with everything. During a July 2007 teleconference, she stated that her February 2007 examination did not fully describe her right shoulder pain and range of motion, she stated that she was not able to perform normal daily activities due to right shoulder pain and took Tylenol four times a day. At a July 2007 examination, the Veteran described pain which was 10 out of 10 in severity with stiffness and fatigue. It was noted that the Veteran attempted to do activities with her, non-dominant, left hand and it was noted that the Veteran was going to school. The examiner stated that the Veteran was self-sufficient but had to switch activities to her left side. Private treatment notes dated between July 2008 and October 2008 include complaints of a vaginal discharge with some minimal itching. Treatment notes include an October 2008 record in which the Veteran complained of lower back pain. A review of systems included a finding of back pain intermittently for years. The Veteran did not report shoulder pain nor is shoulder pain described at any time to this facility. VA treatment records dated in April and September 2009 note a history of right shoulder pain which the Veteran rated as an 8 out of 10 on the pain scale in April and a 20 out of 10 in September. A February 2015 shoulder VA examination report includes the examiner’s statement that the examination was “compromised by excessive pain behaviors…[t]he statements that she makes regarding total inability to use the right arm are not supported by other exams closer to the time of injury that have a normal range of motion.” The examiner continued that an inability to use the right arm would be expected to demonstrate atrophy of the limb which was not found and observation of the Veteran’s range of motion testing indicated that pain behavior was not related to pain. The Veteran testified before the Board in January 2020. During her hearing, the Veteran asserted that her depression impaired her ability to work during the appeal period. The Veteran stated that she was unable to work after she got out of the military. She explained that she did not note depression in her TDIU application because she was having trouble accepting it and feared retaliation from bosses. Following a request for additional employment information, the Veteran submitted a new application for TDIU in April 2020 in which she stated that PTSD prevented her ability to follow substantially gainful employment since December 2004. In the “Remarks” section of the form she stated that the form was not relevant because TDIU was already granted. She stated that she wanted a different effective date for her granted disabilities. She explained that she was seen for mental health disorders in 2006 but was only asked about her shoulder and her depression part of the claim was not addressed. The claims file was referred for an advisory opinion regarding extraschedular consideration. In October 2020 determination, the Executive Director of Compensation Service concluded that there was no medical evidence demonstrating an inability to perform sedentary employment due to her service-connected conditions prior to February 23, 2009. It was noted that the Veteran had service-connected conditions which could have functional impact and impair prolonged activities and that there were now many jobs that required only light activity. After giving consideration to all relevant evidence but not limited to the Veteran’s education, training and work history, the director found that the overall evidence failed to support the contention that any of the Veteran’s service-connected disabilities or a combination thereof prevented gainful employment prior to February 23, 2009. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to a TDIU rating for the entire period on appeal. Initially, the Veteran, in part, contends that her psychiatric symptoms predated her service connection effective date and that she was precluded from working due to or posttraumatic stress disorder (PTSD) with panic disorder and agoraphobia from October 2006. Insofar as the Veteran argues that an earlier effective date for her psychiatric disorder is warranted, a decision on this issue was rendered by the Board in March 2020. Thus, any psychiatric symptoms which impaired the Veteran’s ability to work during the period on appeal considered here would not be considered as due to a service-connected disability. Instead, the question before the Board is whether the Veteran’s service-connected disabilities between October 11, 2006 to February 23, 2009 i.e. her right shoulder, eye and gynecological disability, or a combination thereof, rendered her unable to maintain substantially gainful employment. Having considered the evidence of record, the Board finds they did not. In her October 2006 application for TDIU that she was unable to work because of her shoulder symptoms, however, the Veteran’s vocational rehabilitation notes demonstrate that, during at least some of the appeal period, the Veteran was a full-time student, thus it appears that the Veteran was unable to work due to her studies. Further, the record demonstrates that she was able to work as a full-time student, which would require many of the physical activities of sedentary employment. The Board notes additionally that a vocational rehabilitation plan would require the feasibility of the Veteran working in the field, here teaching, that she was studying. The Veteran reports that she had to miss many days of school due to shoulder pain, however the Board finds that inconsistencies in the Veteran’s reporting make her statements lack probative value. In so finding, the Board finds significant that the Veteran sought private treatment throughout the appeal period but on numerous occasions did not mention a shoulder disability or shoulder pain, even when addressing musculoskeletal pain in the lower back. It stands to reason that, if the Veteran experienced the constant, severe pain she asserted, she would have mentioned such to her medical providers. Moreover, the Veteran is shown to describe limitations in movement of her shoulder in VA examinations and in statements in support of her claim but is reported as moving furniture in private treatment records. Further, the Veteran’s VA examiners often indicate that the Veteran’s objective symptoms are not congruent with her complaints. Additionally, while the Board notes the lay statements in support of the Veteran’s claim, as such are based upon the Veteran’s own complaints, they too are rendered less probative and discuss not only limitations due to shoulder pain, but limitations due to non-service connected back symptoms. When the lay evidence of record is weighed against the findings of the Veteran’s examiners who clearly find less impairment than described by the Veteran, the treatment providers findings are afforded more probative weight due to their expertise and inconsistencies in the Veteran’s reporting. The examiner's opinions are entitled to probative weight as they are based on a thorough examination of the Veteran, consideration of the Veteran's self-reports, a review of the Veteran's claim's file, and the examiner's medical expertise. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (instructing that for medical evidence to be given weight, it must be based on sufficient facts or data, be the product of reliable principles and methods, and be the result of principles and methods reliably applied to the facts). Thus, the evidence of record weighs against a finding that the Veteran was unable to maintain substantially gainful employment prior to February 23, 2009. Rather, the Veteran may have been impeded in great part by psychiatric symptoms or non-service connected symptoms, further the Veteran is shown to have been in school for much of the period, demonstrating an ability to perform sedentary work, and her reports to the contrary are shown to lack probative value. Accordingly, TDIU on an extraschedular basis is denied KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.