Citation Nr: 21030825 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-02 325 DATE: May 19, 2021 ORDER A reduction of the disability rating for service-connected right shoulder disability, to include acromioclavicular (AC) hypertrophy with torn rotator cuff and biceps tendinitis, from 30 percent to 20 percent, effective May 1, 2015 was improper, and the 30 percent rating is restored. For the period prior to January 22, 2013, entitlement to a rating in excess of 30 percent for a right shoulder disability, to include AC hypertrophy with torn rotator cuff and biceps tendinitis, is denied For the period from January 22, 2013, entitlement to a rating of 40 percent, but no higher, for a right shoulder disability, to include AC hypertrophy with torn rotator cuff and biceps tendinitis, is granted. From January 22, 2013 (except when temporary 100 percent was assigned for a right knee disability), entitlement to a total disability rating based on individual unemployability (TDIU) is granted. From October 1, 2015, special monthly compensation (SMC) (s) is granted. FINDINGS OF FACT 1. The January 2013 rating decision that reduced the Veteran's right shoulder disability was improper. 2. Prior to January 22, 2013, the Veteran's right shoulder disability, to include AC hypertrophy with torn rotator cuff and biceps tendinitis, was not manifested by limitation of arm motion to 25 degrees from the side. 3. Resolving reasonable doubt in the Veteran's favor, from January 22, 2013, the Veteran's right shoulder disability, to include AC hypertrophy with torn rotator cuff and biceps tendinitis, manifested in limitation of arm motion to 25 degrees from the side. 4. Resolving reasonable doubt in the Veteran's favor, as of January 22, 2013, the Veteran met the schedular criteria for TDIU, and he was unable to obtain or retain substantially gainful employment due to the sole effects of his service-connected right shoulder disability. 5. As the Veteran was granted a 100 percent rating for the right shoulder disability and SMC for additional disabilities from August 13, 2014 to October 1, 2015, the issue of entitlement to TDIU for that period is moot. 6. From October 1, 2015, the Veteran met the criterion for SMC at the housebound rate based on TDIU for a right shoulder disability and a 70 percent rating for a psychiatric disability. CONCLUSIONS OF LAW 1. The rating reduction from 30 percent to 20 percent for a right shoulder disability, to include AC hypertrophy with torn rotator cuff and biceps tendinitis, was improper, and restoration of the 30 percent rating for the disability is warranted. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344. 2. Prior to January 23, 2013, the criteria for a disability rating in excess of 30 percent for a right shoulder disability, to include AC hypertrophy with torn rotator cuff and biceps tendinitis, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R.§§ 3.102, 4.3, 4.7, 4.71a. Diagnostic Code 5201. 3. From January 23, 2013, resolving reasonable doubt in favor of the Veteran, the criteria for an increased disability rating of 40 percent, but no higher, for a right shoulder disability, to include AC hypertrophy with torn rotator cuff and biceps tendinitis, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R.§§ 3.102, 4.3, 4.7, 4.71a. Diagnostic Code 5201. 4. Resolving reasonable doubt in favor of the Veteran, from January 22, 2013, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 5. From August 13, 2014 to October 1, 2015, entitlement to TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 6. Beginning October 1, 2015, the requirements for SMC at the housebound rate are met. 38 U.S.C. §§ 1114 (s), 5107(b); 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1976 to December 1976 and June 1977 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed with the submission of a Notice of Disagreement. In January 2021, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary file. As an initial matter, the Veteran's right shoulder disability was reduced pursuant to an August 2011 claim for increase, and the RO recharacterized the issue on appeal to include the claim for an increased evaluation. The Veteran also testified that he believes his right shoulder warrants an increase and should not have been reduced. See, e.g., January 2021 Board hearing transcript. As such, the Board's jurisdiction is not limited to the appropriateness of the RO's rating reduction but includes entitlement to a higher disability evaluation, as it has been part and parcel of the claim from the beginning. Moreover, in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held, in substance, that every claim for a higher evaluation includes a claim for TDIU, where the Veteran claims that his service-connected disability prevents him from working. The record raises TDIU, as the Veteran testified that he is unable to work as a result of his service-connected disabilities. Id. Accordingly, the Board has characterized the issues on appeal to include entitlement to an increased disability evaluation for the right shoulder and entitlement to TDIU. 1. Rating Reduction As noted, following an August 2011 claim for increased evaluation, the Veteran's disability rating for his service-connected right shoulder disability was reduced from 30 percent to 20 percent, effective May 1, 2013. The Veteran contends that this reduction was improper. The regulations provide for different criteria for the reduction of a disability rating based on the length of time the rating for the reduced disability has been in effect. Specifically, 38 C.F.R. § 3.344 (a)-(b) provide numerous procedural and substantive criteria that must be satisfied to reduce a rating that is considered stabilized. However, 38 C.F.R. § 3.344 (c) clarifies that those criteria are only applicable when the reduced rating has continued for "long periods at the same level (five years or more)." Here, the disability rating in question was an initial rating established in November 2010. As the rating had been in effect for less than five years at the time of reduction, re-examinations disclosing improvement in disabilities may warrant a reduction in the rating. 38 C.F.R. § 3.344 (c) (2019). The provisions of 38 C.F.R. § 3.344 (a) require a review of the entire record of examinations and the medical history to ascertain whether the recent examination was full and complete. 38 C.F.R. § 3.344 (a). Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344 (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344 (b). Moreover, in a rating reduction case, VA has the burden of establishing that the disability has improved. This contrasts with a case involving a claim for an increased rating, in which the evidence must show that the disability has worsened. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). In determining whether a reduction was proper, the Board must focus on evidence available to the Agency of Original Jurisdiction at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In this case, a July 2012 rating decision proposed reduction in rating for the Veteran's service-connected right shoulder disability from 30 percent to 20 percent. The Veteran was notified and requested a hearing within the 60 day period for evidence submission but after the 30 day period that would require VA to delay action on the reduction. Thus, the November 2012 rating decision reduced the Veteran's rating to 20 percent. Pursuant to an agreement with the Veteran's representative, the right shoulder disability rating was restored to 30 percent in a December 2012 rating decision. Further, it was agreed that the Veteran would undergo VA examination in lieu of a hearing to determine if there was sustained improvement for his right shoulder disability. A January 2013 rating decision reduced the right shoulder disability rating to 20 percent, effective May 1, 2013, and the Veteran was notified of the reduction in April 2013. Considering the above, the Veteran was notified of the proposed reduction and his appellate rights, thus the RO complied with the procedural requirements of 38 C.F.R. § 3.105 (e). Turning to whether the reductions were factually warranted. The evidence of record does not reflect the Veteran's right shoulder disability was manifested by sustained improvement at the time of reduction. The Veteran underwent the agreed upon VA examination in January 2013, and he was noted to have limited motion of the arm at shoulder level, with a flexion of 65 degrees and abduction of 55 degrees. The Veteran reported flare-ups that impact him daily. He is right hand dominant. Notably, the Veteran was unable to perform repetitive use testing due to discomfort, and the right shoulder had less movement, pain on movement, excess fatigability, and decreased muscle strength. The right shoulder disability did not cause a functional impact on his ability to work. In contrast, the November 2011 VA examination, which led to the proposed rating reduction, indicated the right shoulder disability did cause a functional impact on the Veteran's ability to work. Of note, he had limited motion of the arm at shoulder level, with a flexion of 95 degrees and abduction of 75 degrees, in addition to less movement, weakened movement, and pain on movement. He reported flareups with overuse and weather changes that reached a level 10, making it difficult to use the right arm. The Board notes that the Veteran credibly asserted flareups of the right shoulder that worsened from weather and activity-related aggravations in 2011 to daily exacerbations in 2013, and he is competent to report observable symptomatology of his disability. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The medical evidence illustrated his range of motion deteriorated from November 2011 to January 2013, also with objective findings of pain, weakened movement and less movement found on both examinations. In addition, he was unable to perform repetitions for range of motion testing at the latter examination. Thus, the Board resolves reasonable doubt in the Veteran's favor and finds the rating reduction from 30 percent to 20 percent was improper, as the evidence of record does not show an improvement in the Veteran's service-connected disability to warrant a reduction in the assigned disability ratings. Accordingly, the Board finds that the Veteran's 20 percent rating for a right shoulder disability was improperly reduced. Therefore, the 30 percent rating for a right shoulder disability is restored, and the Board will now consider whether the Veteran is entitled to a disability rating in excess of 30 percent for his service-connected right shoulder disability at any time during the appeal period. 2. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, it is essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans Claims (Court) also has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, [or] endurance." Id., quoting 38 C.F.R. § 4.40. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Right Shoulder Disability The Veteran is currently service connected for a right shoulder disability, as his major extremity, at 20 percent under diagnostic code (DC) 5201. In general, disabilities of the clavicle, shoulder, and arm are rated under 38 C.F.R. § 4.71a, DCs 5200 through 5203. When rating based on impairment of the shoulder joints, a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. 38 C.F.R. § 4.69. Under VA rating criteria, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level; normal shoulder internal and external rotation is 0 degrees to 90 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. Under DC 5201, limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90°) warrants 20 percent. Limitation of motion of the arm from midway between the side and shoulder level (flexion and/or abduction limited to 45°) warrants a 30 percent rating for a major extremity, and 20 percent rating for a minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. 38 C.F.R. § 4.71a. Normal range of motion for the shoulder is defined as from 0 degrees of extension to 180 degrees of forward flexion; abduction from 0 to 180 degrees, and external and internal rotation from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Generally, both measurements of forward flexion and abduction are relevant to determine range of motion in the affected shoulder, for purpose of applying DC 5201. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Under the rating criteria reserved for the shoulder and arm, DC 5200 is for evaluation of ankylosis, scapulohumeral articulation (where the scapula and humerus move as one piece). Joint ankylosis that is favorable, with abduction to 60 degrees, can reach mouth and head, corresponds to a 20 percent rating for minor upper extremity, 30 percent for major upper extremity. Intermediate ankylosis between favorable and unfavorable warrants a 30 percent rating for minor upper extremity, 40 percent for major upper extremity. Unfavorable ankylosis, abduction limited to 25 degrees from side, corresponds to 40 percent for minor upper extremity, 50 percent for major upper extremity. Ankylosis is defined as complete immobility of a joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Under DC 5202, for other impairment of the humerus, malunion resulting in moderate deformity, or recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level corresponds to a 20 percent rating. Malunion with marked deformity, or recurrent scapulohumeral dislocation with frequent episodes and guarding of all arm movements corresponds to 20 percent for minor upper extremity, 30 percent for major upper extremity. Fibrous union of the humerus corresponds to 40 percent for minor extremity, 50 percent for major extremity. Nonunion (false flail joint) warrants 50 percent for minor extremity, corresponds to 60 percent for major extremity. Loss of head (flail shoulder) corresponds to 70 percent for minor extremity, 80 percent for major extremity. 38 C.F.R. § 4.71a. Finally, DC 5203, for malunion of the clavicle or scapula has a maximum rating of 20 percent in either arm and does not provide any greater benefit. Id. Facts and Analysis During the January 2021 hearing, the Veteran's representative indicated that the Veteran seeks rating disability restoration and a higher disability rating for his limitation of flexion with a separate rating for limitation of abduction. The Veteran contends his shoulder disability is too painful to move in the forward position and out to the side, testifying that he can't work or perform tasks with his right arm like picking up a gallon of milk from the refrigerated section of the grocery store. The Veteran's right shoulder disability is currently rated at 20 percent under DC 5201, and the Veteran has not been awarded a separate compensable rating under DC 5200. The Board observes that neither the Veteran nor his representative have identified a specific basis in the evidence for a separate schedular rating for the right shoulder with reference to the evidence of record on appeal. The record shows that the Veteran is right hand dominant. See, e.g., November 2011 right shoulder VA examination. Therefore, the Veteran's right shoulder at issue on appeal is the major extremity. To support an increase to 40 percent under DC 5201, the evidence must show the Veteran has limitation of motion to 25 degrees from the side in right extremity. See 38 C.F.R. § 4.71a, DC 5201. For the period on appeal, the record contains two examinations of the Veteran's right shoulder disability addressing his disability picture during in November 2011 and January 2013. The examiners noted that the Veteran suffered from AC hypertrophy with torn rotator cuff and biceps tendinitis, which limited his lifting ability. They noted that the Veteran experienced daily moderate to severe pain to the right shoulder with weakened movement, less movement than normal, pain, and excess fatigability. In November 2011, the Veteran reported flare ups resulting from weather changes and over usage, where the pain reached ten out of ten. Tasks such as holding heavy items, lifting, pulling, pushing, getting dressed, and performing chores were difficult because of the inability to lift his arm above the shoulder level. Also, the Veteran reported that he had not worked as a carpenter for three years and could not be employed due to his service-connected shoulder and knee. In January 2013, the Veteran reported flare ups were daily. Upon physical examination in November 2011, the VA examiner found the Veteran's range of motion (ROM) in forward flexion was limited to 95 degrees with objective evidence of pain beginning at 95 degrees. The abduction was limited to 75 degrees with objective evidence of pain beginning at 75 degrees, as well. After three repetitions, the Veteran's range of motion was limited to 180 degrees in both flexion and extension. The examiner found pain on palpitation of the shoulder joint and guarding of the shoulder. Muscle strength testing was normal at 5/5 for both abduction and forward flexion. The Veteran did not have ankylosis of the shoulder joint and arthritis was not documented by imaging studies. A rotator cuff condition was suspected. The examiner did not find any shoulder instability or dislocation. There was no evidence of loss of head, nonunion, or fibrous union of the humerus, nor evidence of malunion of the humerus with moderate or marked deformity. The examiner determined the Veteran's right shoulder disability would impact his ability to work, and the disability rendered him unemployable for sedentary and physical work, when considered in conjunction with his service connected knee. Upon physical examination in January 2013, the VA examiner found the Veteran's range of motion (ROM) in forward flexion was limited to 65 degrees with evidence of pain starting at 95 degrees. The abduction was limited to 55 degrees with evidence of pain beginning at 75 degrees. The Veteran was unable to perform repetitive-use testing with three repetitions because it caused too much discomfort. Pain to the shoulder joint upon palpitation was noted. The examiner did not indicate whether the Veteran had guarding of the shoulder. Muscle strength testing was reduced to 4/5 for both forward flexion and abduction. The Veteran did not have ankylosis of the shoulder joint and arthritis was not documented by imaging studies. The examiner did not find any shoulder instability, dislocation. There was no evidence of loss of head, nonunion, or fibrous union of the humerus, nor evidence of malunion of the humerus with moderate or marked deformity. The examiner determined the Veteran's right shoulder disability would not impact his ability to work. The Board notes that at the January 2021 videoconference hearing the Veteran was administered the oath without raising his hand after he indicated it would be too painful to raise his right arm. He explained that his arm has always been painful to move, and he does not used his right hand much. He further testified that he last worked full-time in approximately 2010 as a carpenter but was often terminated because of limitations posed by his right shoulder. By 2013 he was no longer working. The Veteran reported carpentry was his only occupation and training, and he experienced homelessness because he was unable to work when his shoulder rating was reduced. See, e.g., January 2021 Board hearing transcript at 7. For the period from August 15, 2011 to January 22, 2013 Considering the evidence of record, for the period from August 15, 2011 to January 22, 2013, the Board finds that an increased evaluation in excess of 30 percent for his right shoulder disability is not warranted. The evidence of record does not show that the Veteran had limitation of motion of the arm to 25 degrees from the side. During the November 2011 VA examination, the Veteran's ROM for forward flexion was 95 degrees and abduction was 75 degrees. His ROM increased to normal upon repetitive use testing, and there was also no reduction in muscle strength. Pain was noted to cause a functional loss, and the examiner opined that when combined with the service-connected right knee impairments the two disabilities would make the Veteran unable to sustain gainful employment. In addition, the Veteran reported flare ups made it difficult to use his arm and occurred with weather changes and overuse. Although not indicated by ROM limitations, considering the additional factors related to the Veteran's right shoulder disability, it more nearly approximates the criteria for a 30 percent evaluation, but not higher. The totality of the evidence indicates that prior to January 22, 2013, the Veteran's right shoulder condition was manifested by pain, less movement, weakened movement, and range of motion equating to a limitation of midway between the side and shoulder level (flexion and/or abduction limited to 45°). Accordingly, the preponderance of the evidence is against finding the Veteran's right shoulder disability was manifested by limitation of motion to 25 degrees from the side, and entitlement to a disability rating in excess of 30 percent prior to January 22, 2013 is denied. For the period beginning January 22, 2013 Considering the evidence and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right shoulder disability increased in severity to warrant a 40 percent rating, but no higher, under DC 5201 for the period beginning January 22, 2013. As noted, a 40 percent rating contemplates limitation of arm motion to 25 degrees from the side. At the January 2013 VA examination the Veteran's ROM was limited in forward flexion to 65 degrees with objective evidence of pain starting at 95 degrees, and the abduction was limited to 55 degrees with objective evidence of pain beginning at 75 degrees. He reported daily flareups with movement. He was not able to perform repetitive use testing to due to increased discomfort. The examiner determined that the right shoulder disability resulted in a functional loss due to weakness, fatigue, pain and reduced movement. Muscle strength was also reduced to 4/5. Notably, the examiner did not find an impact on the Veteran's ability to work. However, during the January 2021 the Veteran was unable to raise his right arm for administration of the oath due to his shoulder and testified he does not use his arm much. The Veteran had not worked since 2013 and reported that he was previously terminated from carpentry jobs because his shoulder disability limited his abilities to perform work-related tasks. The Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on ROM measurements. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board also considered the effects of excess fatigability, and less movement, and weakened movement. See 38 C.F.R. § 4.45. Based on the totality of the evidence of record, the Board resolves reasonable doubt in the Veteran's favor and finds that from January 22, 2013, the Veteran's right shoulder disability was manifested by pain, weakness, reduced movement, and fatigability, that resulted in a functional loss that more nearly approximated limitation of arm motion to 25 degrees from the side. The Board has considered the application of DC 5200 for disabilities involving ankylosis of the scapulohumeral articulation, DC 5202 for other impairment of the humerus to include recurrent dislocation, fibrous union, non-union or flail shoulder, and DC 5203 impairment of the clavicle/scapula to include nonunion with loose movement. The evidence does not show that the Veteran's right shoulder disability manifestations have included ankylosis or impairment of the humerus or clavicle/scapula during the appeal period. Therefore, the Veteran is not entitled to a higher rating under DCs 5200, 5202, and 5203. 3. Entitlement to TDIU In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held, in substance, that every claim for an increased evaluation includes a claim for TDIU where the veteran claims that his service-connected disabilities prevent him from working. Here, the Veteran contends he is unable to secure and maintain a substantially gainful occupation due to his service-connected right shoulder and right knee. See e.g., October 2011 VA Form 21-8940; December 2011 VA Form 21-8940. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). 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. Where the 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). Facts and Analysis Prior to January 22, 2013, the Veteran was rated at 30 percent for his right shoulder disability, 40 percent for a right knee under DC 5003-5258, and a separate 10 percent for a right knee disability under DC5257. As his combined rating was 60 percent, he did not meet the schedular criteria for an award of TDIU. The Board finds that referral to the Director of Compensation Service for consideration of entitlement to TDIU on an extraschedular basis prior to October January 22, 2013 is not warranted. The Board notes that the November 2011 VA examiner opined that the Veteran's right knee and right shoulder disabilities would make him unemployable for both sedentary and physical work. However, the Veteran indicated on a December 2011 unemployability claim that he could not stand up long enough or carry food trays for a catering job. See VA Form 21-8940 received December 5, 2011. Further, the Veteran testified that he was no longer working full-time as a carpenter at the time of the January 2013 examination. Prior to January 2013, the evidentiary record indicates some level of employment. A December 2011 unemployability claim indicates the Veteran had difficulties in a catering job, as he reported an inability to stand for prolonged periods or carry the food trays. See VA Form 21-8940 received December 5, 2011. Thus, after the November 2011 examination, but prior to January 22, 2013, the record indicates the Veteran was employed. Therefore, application of 38 C.F.R. § 4.16 (b) governing extraschedular TDIU is not warranted. However, in accordance with the decision above, the Veteran's service-connected ratings as of January 22, 2013, are 40 percent for a shoulder disability, 40 percent for a right knee under DC 5003-5258, and a separate 10 percent for a right knee disability under DC5257. The combined disability rating is 70 percent and one condition is rated at 40 percent disabling. Therefore, the Veteran has met the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16 (a) as of January 22, 2013. The evidentiary record indicates the Veteran's only training and education after active duty service was in carpentry. As noted, he testified that he had not worked fulltime as a carpenter since 2013, and although unclear from his testimony, the evidentiary record established that he has not worked since 2010. See January 2021 Board hearing transcript; VA Form 21-4192. A private medical statement submitted in November 2011 indicates the Veteran's right knee arthritis prevents him from working. See VA Form 21-4138, received November 4, 2011. As noted above, the November 2011 VA examiner determined the right shoulder and right knee disability rendered the Veteran incapable of maintaining both sedentary and physical employment. The January 2013 examiner determined that only the right knee disability would impact his ability to work. During the January 2021 hearing before the Board, the Veteran reported that he was unable to keep jobs as a carpenter because he was unable to carry heavy loads, climb ladders, and swing a hammer as employers expected. Moreover, he testified that when his disability rating was reduced in 2013, the inability to work led to homelessness. See January 2021 Board hearing transcript. Thus, the totality of the evidence of record indicates the functional impairments caused solely by the Veteran's service-connected right shoulder disability renders him unable to secure or follow a substantially gainful occupation. As noted above, the Veteran experienced pain, weakness, fatigue and loss of movement that made him unable to perform the duties required of a carpenter. Further, his attempt at working in the catering field did not lead to sustained and gainful employment due to his service-connected right knee and shoulder disabilities. Notwithstanding, the impairment sustained by the Veteran's right knee disability, his employment in carpentry is dependent on the functional abilities of his right shoulder and arm. Accordingly, and resolving reasonable doubt in favor of the Veteran, the Board finds the functional effects of the Veteran's service-connected right shoulder disability has rendered the him unable to secure and follow a substantially gainful occupation as of January 22, 2013. 4. Special Monthly Compensation The Board must consider entitlement to SMC if raised by the rating issue on appeal. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Veteran underwent total knee replacement and the RO assigned a temporary 100 percent rating, effective August 13, 2014 to October 1, 2015, and granted an award of (SMC). SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). For the purpose of meeting the first criterion (a single service-connected disability rated at 100 percent), ratings of 100 percent may be based on any of the following grants of a total rating: on a schedular basis; on an extraschedular basis; on the basis of TDIU if granted for a single disability; or, on the basis of a temporary total rating. In Bradley v. Peake, 22 Vet. App. 280, 293 (2008), the Court held that a TDIU satisfies the total (100 percent) rating requirement if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more, for purposes of entitlement to SMC for a housebound rating. Nonetheless, the TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional disability or disabilities independently ratable at 60 percent or more for purposes of housebound benefits. Id. From August 13, 2014 to October 1, 2015, the Veteran's award of SMC was based upon a 100 percent schedular right knee disability and multiple service-connected disabilities, including the right shoulder disability, that combined to a 60 percent evaluation. To award SMC for this period would result in an impermissible "duplicate counting of disabilities" and the Bradley rule is inapplicable. Bradley v. Peake, 22 Vet. App. at 293. Therefore, the Board finds the issue of entitlement to TDIU for this period is moot. Id. Beginning October 1, 2015, the Veteran's right knee disability was rated at 40 percent, and as noted above, he met the criteria for TDIU based upon the right shoulder disability. In accordance with the decisions above and in light of Bradley, the TDIU rating meets the first SMC criterion of a 100 percent rating, as it was granted for a single disability. Id. Moreover, without considering the shoulder disability, the Veteran was rated at 70 percent for a psychiatric disability, 40 percent for the right knee disability, 20 percent for a back disability, 10 percent for tinnitus, and noncompensable ratings for left ear hearing loss, and erectile dysfunction. The bilateral factor applies to the right knee disability. When combined under 38 C.F.R. § 4.25 these additional service-connected disabilities have a combined evaluation of 90 percent. The psychiatric disability at 70 percent involves a different anatomical segment or bodily system than the service-connected right shoulder, which serves as the basis for the Veteran's TDIU. Thus, the second element of entitlement to SMC at the (s) rate is shown. Accordingly, from October 1, 2015, SMC at the statutory housebound rate is granted. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.