Citation Nr: 21041320 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-36 725 DATE: July 8, 2021 ORDER 1. The issue of entitlement to service connection for a right shoulder disability is dismissed, as the benefit was granted in a March 2020 Board of Veterans' Appeals decision, which was prior to the subject of a November 2020 United States Court of Appeals for Veterans Claims order. 2. Entitlement to referral for consideration of a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) prior to February 21, 2020 is denied. 3. Entitlement to a TDIU rating from February 21, 2020 is denied. FINDINGS OF FACT 1. As to the claim for service connection for a right shoulder disability, there is no case or controversy regarding the benefit sought on appeal, as the Board granted entitlement to service connection for a right shoulder disability in March 2020 in an appeal that fell under the Appeals Modernization Act. 2. The preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities throughout the appeal period. CONCLUSIONS OF LAW 1. The appeal for the issue of entitlement to service connection for a right shoulder disability is rendered moot and is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.101. 2. The criteria for referral for an extraschedular TDIU rating were not met prior to February 21, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). 3. The criteria for a TDIU rating have not been met from February 21, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 decision, the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. In an August 2019 supplemental statement of the case (SSOC), the RO continued the denial of service connection for a right shoulder disability and TDIU. That same month, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), where he selected the Direct Review lane under the Appeals Modernization Act (AMA) review system. The AMA had become effective February 19, 2019. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review, and is applicable to all claims initially decided after that date. A Legacy appeal is one based on a decision issued prior to the effective date. A veteran may, under certain circumstances, opt to elect consideration of a legacy appeal under the AMA provisions. 38 C.F.R. § 3.2400. The Veteran's opt-in was a valid appeal under the AMA because the Veteran opted into the AMA within 60 days of a SSOC issued after February 19, 2019, which removed the Veteran's claims from the Legacy appeal system. 38 C.F.R. § 3.2400(c)(2). Despite the Veteran opting into the AMA, the Board rendered a decision under the Legacy system in October 2019, which denied the within claims. In March 2020, the Board rendered a separate decision under the AMA, which granted the Veteran's claim for service connection for a right shoulder disability and denied the claim for a TDIU rating. After the Veteran opted in to the AMA system and before the issuance of the March 2020 Board decision, he appealed the October 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court) with a different private attorney than the one who was representing him before VA. In November 2020, after the March 2020 Board decision that granted service connection for the right shoulder disability, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Remand (Joint Motion), only as it related to the October 2019 Board denial under the Legacy appeal system, which motion was later granted by the Court. The parties agreed that vacatur and remand of the within issues were necessary because the Board erred when it relied on an inadequate medical opinion in its denial of the issue of service connection for a right shoulder disability. However, the Joint Motion failed to recognize that the Veteran's claim for service connection for a right shoulder disability had been granted eight months prior, even though the record before the agency was completed in July 2020, which was after the March 2020 Board decision, which means that the March 2020 Board decision was in the file at the time of the Joint Motion. See CAVC website. The parties agreed that the issue of entitlement to a TDIU rating was inextricably intertwined with the Veteran's service connection claim, and the matters were returned to the Board. 1. Service connection for a right shoulder disability The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). As noted above, the issue of service connection for a right shoulder disability was denied in an October 2019 Legacy Board decision, to which the Joint Motion was responsive. In a March 2020 AMA decision, the Board granted entitlement to service connection for a right shoulder disability. While this was not mentioned in the Joint Motion, the Board finds that the issue of entitlement to service connection for a right shoulder disability is moot and should be dismissed, as it has been granted and there is no justiciable case or controversy before the Board at this time with respect to this claim. See 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101. Thus, at the time of the November 2020 joint motion, the claim had been granted in full. As the claim for entitlement to service connection was granted in a March 2020 Board decision, the Board finds there is no pending appeal for entitlement to this benefit. 38 C.F.R. § 20.200. Accordingly, the appeal with respect to the issue of entitlement to service connection is dismissed. As TDIU has not been granted, the Board will address this issue on the merits below. 2. TDIU The Veteran's TDIU claim arose in an April 2016 notice of disagreement relating to an increased rating claim received in July 2015, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 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 because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service-connected disabilities have not met the schedular criteria for TDIU for the entire appeal period. The Veteran is service-connected for acute maxillary sinusitis with a 50 percent disability rating from February 21, 2020, and a 0 percent disability rating from August 17, 2011; obstructive sleep apnea with a 50 percent disability rating from April 16, 2020; an unspecified adjustment disorder with unspecified insomnia disorder associated with bicipital tendinitis of the right elbow with a 30 percent disability rating from February 21, 2020; a right shoulder disability with a 20 percent disability rating from July 3, 2015; bicipital tendinitis/pronator teres syndrome of the right elbow with a 10 percent disability rating from July 1, 2005; right wrist tendinitis with a 10 percent disability rating from July 1, 2005; left wrist tendinitis with a 10 percent disability rating from July 1, 2005; tinnitus with a 10 percent disability rating from February 21, 2020; bilateral plantar fasciitis (also claimed as pes planus) with a 10 percent disability rating from April 16, 2020; degenerative joint disease of the left thumb with a 0 percent disability rating from July 1, 2005; and epididymitis with a 0 percent disability rating from July 1, 2005. Based upon the above, the Veteran's combined disability rating during the relevant period was 30 percent from July 1, 2005, 50 percent from July 3, 2015, 80 percent from February 21, 2020, and 90 percent from April 16, 2020. As such, the Veteran met the schedular criteria for a TDIU rating beginning in February 2020. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration prior to February 21, 2020. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). While the Veteran has not submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, VA's Adjudication Manual, M21-1, IV.ii.2.F.2.b provides that if the issue of entitlement to a TDIU is raised and the Veteran fails to complete and return VA Form 21-8940, VA must make a decision on the issue of TDIU based on the available evidence of record. The Board is not bound by this M21-1 provision, see DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"), but it "is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. The reasons follow. The Veteran has reported experiencing pain in his extremities with reduced mobility and range of motion. Additionally, he has reported sleep difficulties and fatigue, as well as psychiatric symptoms, including anxiety, reduced concentration, social withdrawal, and reduced enjoyment. Although the Veteran has raised the issue of TDIU, the record shows that the Veteran has maintained substantially gainful employment throughout the relevant period. A January 2007 VA examination of the Veteran's bilateral wrists and right elbow noted that the Veteran was employed as a systems administrator. The VA examiner reported that the Veteran has not lost any time in the past year due to his right elbow and bilateral wrist conditions. It was noted that the Veteran's bilateral wrist and right elbow disability would give the Veteran difficulty lifting in excess of 50 pounds and with repetitive pushing, pulling, and lifting with the right upper extremity. In an August 2011 VA Form 21-526 claim for compensation application, the Veteran stated that he started working as an IT specialist in July 2009, and left the "End work date" field empty, and stated that no days have been lost due to disability. The Veteran underwent a VA examination in September 2015 for assessment of his bilateral wrist and right elbow disabilities. The VA examiner stated that the Veteran should avoid climbing, bending, stooping, and crawling. However, the examiner stated that the Veteran's wrist and elbow disabilities should not preclude light duty to sedentary employment, although strenuous physical employment is limited. The Veteran's strength and range of motion was normal. The Veteran underwent a VA examination in August 2018 for assessment of his right shoulder condition. The examination report notes that the Veteran is employed as an IT specialist. The examiner stated that the Veteran's ability to perform overhead activities is limited with his right shoulder. The Veteran underwent another VA examination for assessment of his right shoulder disability in August 2019. It was again noted that the Veteran is employed as an IT specialist. The Veteran was assessed with residuals of distal clavicle resection, debridement, and acromioclavicular decompression. The Veteran reported daily pain in his right shoulder, but stated that he learned to live with it. He stated that his job requires moderate physical labor. The Veteran exhibited some reduced range of motion, but full strength. The examiner described the functional impact of the Veteran's right shoulder disability to limit overhead activities, mainly due to shoulder pain. The Veteran submitted a Disability Benefits Questionnaire (DBQ) from Leah Bucholz, PA-C, completed in February 2020. The Veteran reported that he has suffered from sinusitis since 1991, that he experiences headaches and breathing difficulties, and that the condition requires medication management. As to the functional impact on the Veteran's condition, Ms. Bucholz stated that the Veteran has difficulty sleeping due to breathing disturbances, causing fatigue and decreased concentration. The Veteran had a VA examination for assessment of his sinusitis in August 2019. The Veteran reported intermittent symptoms and stated that he self-medicates at home because he does not have time to see a doctor. He also reported that sinus issues disrupt his sleep. The examiner stated that the Veteran's condition does not impact the Veteran's ability to work. The Veteran is currently service connected for an unspecified adjustment disorder with a 30 percent disability rating. The Veteran underwent a private psychological assessment by Robert Klein, Ph.D. in February 2020. Dr. Klein summarized the Veteran's condition as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Such an assessment is commensurate with a 70 percent disability rating. The Veteran has sought treatment for anxious symptoms at times, but has no history of inpatient psychiatric admission and has not required routine counseling. Mental status examination indicate intact cognitive function and the Veteran has reported that he has close relationships with friends and family. The Veteran has maintained employment in a skilled field and maintained independence in his activities of daily living. The Veteran underwent a VA examination for assessment of his psychiatric disorder in April 2020. The examiner opined that the Veteran's overall level of impairment was characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. This assessment is commensurate with a 30 percent disability rating and not indicative of unemployability. The Veteran also reported that he was currently working as a network systems administrator, a position he had held for approximately 10 years. The Veteran underwent VA examination for assessment of his tinnitus in August 2020. As to the functional impact of the Veteran's tinnitus, he reported that his tinnitus makes it hard for him to fall asleep. The Veteran underwent a VA examination for assessment of his obstructive sleep apnea in December 2020. The Veteran's condition is treated with the use of a CPAP. The examiner stated that the impact of the Veteran's sleep apnea on his ability to work is that the Veteran should not operate machinery. The Board interprets this assessment to refer to heavy and/or dangerous machinery, as the Veteran's work as an IT specialist would require the use of some machinery and treatment records reflect that the Veteran has retained the ability to drive. Routine treatment records indicate that he has used a CPAP consistently since 2009 and describe his condition as stable. The Veteran also underwent a VA examination of his bilateral foot disabilities in December 2020. The Veteran denied experiencing functional loss in his feet. The examiner stated that the Veteran's bilateral foot disabilities do not impact his ability to perform occupational tasks. The VA examination reports above did not state that the Veteran's service-connected disabilities preclude the Veteran from working. While the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner," Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), in this case the opinions of the VA examiners are consistent with the evidence of record. The Veteran's service-connected disabilities do not cause significant impairment such that he is unable to perform substantially gainful employment, as evidenced by his persistent and continued work as an IT specialist, without indication that the Veteran requires any special accommodations in the workplace. Regarding the Veteran's education, training, skills, and work history, the Veteran has reported during VA examinations that he studied business/information systems, earned a bachelor's degree from the University of Phoenix, and that he has been employed as an IT specialist since 2009. The Veteran has maintained long-term skilled employment throughout the appeal period, which demonstrates not only that he is capable of substantially gainful employment, but that he is dependable, adaptable, and capable of learning. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences chronic pain and is limited from heavy exertional activities. However, examiners have not indicated that physical limitations prevent him from work. Rather, the Veteran has maintained full-time employment throughout the relevant period and stated that his job requires moderate physical labor. This is probative evidence that the Veteran is capable of performing work at least at the sedentary exertional level with additional limitations from operating heavy and/or dangerous machinery. The Department of Labor's Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e. up to one third of the time), and/or a negligible amount of force frequently (i.e. from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to the DOT's definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The Board finds no prejudice to the Veteran in considering the definition for purposes of deciding this claim. The Veteran's demonstrated functional abilities, reflected by his sustained employment, show that he is capable of sedentary work that does not require the operation of heavy and/or dangerous machinery. Accordingly, the weight of the evidence shows that the Veteran is physically capable of performing substantially gainful employment. As to the Veteran's mental ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences a range of psychiatric symptoms resulting from his unspecified adjustment disorder, including sleep difficulties, fatigue, cognitive deficits, anxiety, and social withdrawal. However, the Veteran has maintained independence in his activities of daily living and has required only sporadic treatment with no inpatient psychiatric admission. Examination findings generally indicate unremarkable psychiatric functioning, including findings that the Veteran is fully alert and oriented with intact cognition and appropriate behavior. The Veteran has also reported maintaining close relationships with family and friends. The Veteran's service-connected disabilities have not been shown to cause the Veteran communicative deficits and his treatment records and consistent employment demonstrate that he is able to interact appropriately with others and handle the demands of skilled employment. As the Veteran's adjustment disorder has not been shown to cause the Veteran significant occupational limitations, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. Most notably, the Veteran has proven his capacity to perform his duties as an IT specialist, a position that he has held for over a decade. However, there are numerous other sedentary jobs that the Veteran could potentially perform. For example, the Veteran's service-connected disabilities would not preclude him from jobs that involve data entry. With data entry, the Veteran is primarily responsible for entering data into a system. These jobs can usually be done from home without significant training or experience. These occupations require very little exertional effort, and the Veteran's IT experience would likely aid in his transition to this type of work. Similarly, there are jobs that can be performed at home, such as a telemarketer, where the employee makes calls and reads a script, which does not require extensive training or experience, and would require minimal exertional activity. Additionally, the Veteran would be capable of performing certain cashier positions, or work as a library, theater, or museum attendant, positions that would not exceed the demands of sedentary work. None of these positions would require the operation of heavy and/or dangerous machinery. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment due to his service-connected disabilities. For all these reasons, the Board finds the preponderance of the evidence is against a finding that the Veteran has been precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. As the evidence of record weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and referral for consideration of an extraschedular TDIU rating prior to February 21, 2020, and the claim of entitlement to a TDIU rating after February 21, 2020 is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.