Citation Nr: 21030581 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 20-11 487 DATE: May 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from September 19, 2018, to January 31, 2021, is granted. REMANDED Entitlement to a TDIU due to service-connected disabilities beginning February 1, 2021, on an extra-schedular basis, is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether, for the period from September 19, 2018, to January 31, 2021, the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met for the period from September 19, 2018, to January 31, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1979 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office. As an initial matter, the Board notes that the December 2018 also increased the rating for the Veteran's service-connected right shoulder, limited range of motion (ROM), from 10 percent to 20 percent, effective June 19, 2018, and continued a 20 percent rating for the Veteran's service-connected left shoulder, limited ROM. The Board also notes that, in a November 2019 Notice of Disagreement (NOD), the Veteran appealed each of these issues and requested an earlier effective date for the award of an increased rating for his right shoulder, limited ROM. However, in perfecting the appeal, only the appeal of the denial of entitlement to a TDIU was identified. Indeed, the Veteran, through his representative, specifically stated that he did not wish to appeal the increased rating and earlier effective date claims for his bilateral shoulder, limited ROM. See March 2020 VA Form 9. As such, only the issue of entitlement to a TDIU was perfected. Entitlement to a TDIU due to service-connected disabilities, from September 19, 2018, to January 31, 2021, is granted. Under 38 C.F.R. § 4.16(a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more, or, if the veteran has multiple service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. Further, under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extraschedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Additionally, for purposes of TDIU, the following disabilities are considered as one disability: (1) disabilities of one or both upper extremities or one or both lower extremities; (2) disabilities arising from a common etiology or single accident; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; or (5) multiple injuries incurred as a prisoner of war. See 38 C.F.R. § 4.16(a). The term "unable to secure or follow a substantially gainful occupation" contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. In determining whether a veteran can secure and follow a substantially gainful occupation, attention is given to: the veteran's history, education, skill, and training; the veteran's physical ability to perform the types of activities required by the occupation at issue; and the veteran's mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience, but not to their age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factual and Procedural Background. In September 2018, the Veteran submitted a claim of entitlement to a TDIU. The Veteran reported that his last employment was in a sales/stocking role with an auto parts store, and the employment ended in May 2015. The Veteran also reported that he was a high school graduate but possessed no additional training or education. See September 2018 VA Form 21-8940. In a December 2018 rating decision, the Agency of Original Jurisdiction (AOJ), inter alia, denied entitlement to a TDIU. Thereafter, in November 2019, the Veteran submitted an NOD appealing the decision. The appeal of the denial of entitlement to a TDIU was ultimately perfected and is the matter currently before the Board. The Veteran's VA treatment records indicate that, throughout the period on appeal, the Veteran has consistently reported experiencing shoulder pain, ranging from moderate to severe. The records also indicate that the Veteran experiences difficulty using his arms away from his body, though he is able to perform some activities with his arms close to his body, using his core only. See Louisville VA Medical Center (VAMC) records, received November 2018, December 2018, December 2019, and May 2020 in CAPRI; Cincinnati VAMC records, received September 2019 and October 2020 in CAPRI. In October 2018, the Veteran was afforded a VA examination in which the Veteran reported experiencing persistent pain which would increase if he held his arms out too long, resulting in difficulty using his arms. The examiner noted that the Veteran had severe range of motion (ROM) limitation in his shoulders and, as such, would face major challenges with activities requiring reaching of his arms. See October 2018 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). In February 2019, the Veteran submitted a statement from R.B., stating that the Veteran can do very little sustained work or hold the same position for too long at one time, and that his restricted ROM and constant shoulder pain have made even normal task hard to impossible. R.B. also stated he assists the Veteran in dealing with his shoulder conditions on a daily basis. See February 2019 R.B. Lay Statement. In February 2019, the Veteran submitted a statement from D.H., stating that the Veteran experiences constant pain. She also stated that the Veteran sometimes needs assistance getting dressed, and she usually has to shop for groceries with him because he is not able to reach certain items. See February 2019 D.H. Lay Statement. In October 2020, the Veteran was afforded a VA examination in which the Veteran reported experiencing pain when he raises his arms. The examiner noted that the Veteran had significant limited ROM and pain in the shoulders and, as such, was unable to perform overhead work and should not do heavy lifting but was capable of sedentary work. See October 2020 VA Shoulder and Arm Conditions DBQ. Analysis. The Veteran contends that he is entitled to a TDIU due to his service-connected disabilities. Importantly, the Board notes that a claim for a TDIU is a form of increased rating claim, and as such, the rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413 (1999). Therefore, the relevant temporal focus for this matter begins September 19, 2017, or one year prior to the date of receipt of the claim seeking entitlement to a TDIU. See 38 C.F.R. § 3.400. As discussed above, a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more, or, if the veteran has multiple service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, throughout the appeal period the Veteran has received benefits for: limited ROM, left shoulder, rated at 20 percent; limited ROM, right shoulder, rated at 10 percent prior to June 19, 2018, and 20 percent thereafter; right seventh rib fracture, rates as noncompensable; acromioclavicular joint separation, right shoulder, rated at 20 percent prior to February 1, 2021, and noncompensable thereafter; and acromioclavicular joint separation, left shoulder, rated at 20 percent prior to February 1, 2021, and noncompensable thereafter. The Veteran's combined rating is 60 percent prior to June 19, 2018, 70 percent from June 19, 2018, to January 31, 2021; and 40 percent thereafter. As noted above, for TDIU purposes, multiple disabilities of one or both upper extremities or one or both lower extremities and multiple disabilities arising from a common etiology or single accident are treated as a single disability. See 38 C.F.R. § 4.16(a). Here, the Veteran's service-connected conditions arise from a single motor vehicle accident in November 1985. See August 2015 Shoulder and Arm Conditions DBQ. Further, with the exception of the Veteran's service-connected rib fracture, which is rated as noncompensable, the Veteran's service-connected conditions consist of disabilities of the bilateral upper extremities. As such, for TDIU purposes, the Veteran has a single disability rated at 60 percent prior to June 19, 2018, 70 percent from June 19, 2018, to January 31, 2021; and 40 percent thereafter. Therefore, the schedular threshold requirement for establishing entitlement to a TDIU has been met for the period prior to February 1, 2021. The period beginning February 1, 2021 is discussed in the remand section below. As noted above, the Veteran's VA treatment records indicate that, throughout the period on appeal, the Veteran has consistently reported experiencing shoulder pain, ranging from moderate to severe, and that he experiences difficulty using his arms away from his body, though he is able to perform some activities with his arms close to his body, using his core only. See Louisville VAMC records; Cincinnati VAMC records. Additionally, the Veteran has submitted lay statements indicating that he experiences constant shoulder pain, has difficulty with sustained work or holding the same position for a long period of time, requires assistance with grocery shopping, and sometimes requires assistance getting dressed. See February 2019 R.B. Lay Statement; February 2019 D.H. Lay Statement. Further, VA examinations indicate that the Veteran is capable of sedentary work, but due to his significant range of motion limitation and pain in his shoulders, he is unable to perform overhead work, should not do heavy lifting, and would face major challenges with activities requiring reaching of his arms. See October 2018 VA Shoulder and Arm Conditions DBQ; October 2020 VA Shoulder and Arm Conditions DBQ. Though the medical evidence of record suggests that the Veteran's service-connected conditions do not preclude sedentary employment, the Board must also determine whether, considering the Veteran's education, training, and work experience, the Veteran has the mental ability to perform the activities required by sedentary employment. See Ray v. Wilkie, supra; Hatlestad v. Derwinski, supra. Here, the evidence indicates that the Veteran is a high school graduate with no specialized education or training, and his previous work experience is of a physical nature. See September 2018 VA Form 21-8940; January 2019 Correspondence; March 2020 VA Form 9. In other words, there is no indication in the Veteran's education, training, or work experience that the Veteran possesses the mental ability to secure and follow a substantially gainful sedentary occupation. Based on the above, the Board finds the evidence of record overall supports the finding that the Veteran's service-connected conditions render him unable to secure or follow a substantially gainful occupation, at least to an evidentiary degree of equipoise. Accordingly, the Board resolves all reasonable doubt in the Veteran's favor, and finds entitlement to TDIU to be warranted, for the period beginning September 19, 2018, the date of receipt of the Veteran's claim, and ending January 31, 2021. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990); Hurd v. West, 13 Vet. App. 499 (2000). REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities beginning February 1, 2021, on an extra-schedular basis, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. As discussed above, beginning February 1, 2021, the Veteran's service-connected disabilities have a combined rating of 40 percent. Therefore, as of such date, the schedular percentage threshold for TDIU have not been met. See 38 C.F.R. § 4.16(a). However, under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extra-schedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Although the Board cannot grant a TDIU in the first instance under this regulation, the Board must consider whether referral to the Director of Compensation and Pension Service (Director) for extra-schedular consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As discussed above, in evaluating a veteran's employability, consideration may be given to their level of education, special training, and previous work experience, but not to their age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, supra. As discussed above, the evidence indicates that the Veteran experiences shoulder pain, ranging from moderate to severe, has difficulty using his arms away from his body, though he is able to perform some activities with his arms close to his body, using his core only, is unable to perform overhead work, should not do heavy lifting, and would face major challenges with activities requiring reaching of his arms. See Louisville VAMC records; Cincinnati VAMC records; October 2018 VA Shoulder and Arm Conditions DBQ; October 2020 VA Shoulder and Arm Conditions DBQ. Additionally, the evidence indicates that the Veteran is a high school graduate with no specialized education or training, and his previous work experience is of a physical nature. See September 2018 VA Form 21-8940; January 2019 Correspondence; March 2020 VA Form 9. Based on the evidence above, the Board finds that the Veteran's ability to obtain and maintain substantially gainful employment, for the period beginning February 1, 2021, may have been impacted by his service-connected disabilities. As such, a remand is necessary for referral to the Director for consideration as to whether a TDIU is warranted, on an extra-schedular basis, for the period beginning February 1, 2021. Accordingly, the matter is REMANDED for the following action: Refer to the Director, Compensation and Pension Service, the matter of whether a TDIU is warranted, beginning February 1, 2021, on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b). Should the Director indicate that further evidentiary development is required, such development should be undertaken. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.