Citation Nr: 21041731 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-02 734 DATE: July 10, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 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 from July 1984 to July 1987. In February 2019, the Board of Veterans' Appeals (Board) found that the TDIU claim was raised by the record per Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the claim to the agency of original jurisdiction (AOJ) for further development. After accomplishing the above, the AOJ denied the Veteran's claim (as reflected in a September 2020 supplemental statement of the case (SSOC)). Entitlement to a TDIU The Veteran seeks a TDIU, claiming that he has been unable to work as a result of his service-connected disabilities. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 38 C.F.R. § §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Here, the Veteran is service connected for left shoulder impingement syndrome of the median associated with impairment of the humerus, rated as 30 percent disabling; left arm limitation of motion, rated as 20 percent disabling; right arm shoulder strain associated with left arm limitation of motion, rated as 20 percent disabling; impairment of the humerus, rated as 20 percent disabling; residual surgical scar on left shoulder, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; left ear hearing loss, rated as noncompensable (zero percent disabling); and linear scar associated with impairment of the humerus, rated as noncompensable (zero percent disabling). His combined rating is 80 percent. The Veteran has met the criteria for a schedular TDIU set forth in section 4.16(a) as his disabilities have resulted from a common etiology, namely, impairment of the humerus and associated left shoulder impingement syndrome of the median. Thus, the next question for consideration is whether his service-connected disabilities prevent him from securing and following substantially gainful employment. 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). For the following reasons, a TDIU is warranted. The Veteran last worked in 2019 as a gas cylinder processor. Regarding education, the highest grade completed was 12th grade. In a September 2013 letter, the Veteran stated that his service-connected left arm condition causes him "pain all the time" and his "left arm goes numb at least three to four times a day," which impairs his ability to work. A May 2014 VA examination report indicates that the Veteran's service-connected left arm and left shoulder conditions impact his ability to work as "he is unable to pick up objects with his left hand." An October 2017 VA examination report noted the Veteran's left shoulder impingement syndrome of the median ulnar and musculospiral nerve. The examiner opined that the left shoulder condition impacted his ability to work. Specifically, she stated that the Veteran's "pain, paresthesia, numbness, tingling, and weakness in [ ] upper extremity causes [him] to move slower affecting his efficiency thereby decreasing his productivity. This causes difficulty with any activity that requires reaching above shoulder level i.e. getting dressed, grooming, carrying, and lifting items." A September 2019 letter from the Veteran's spouse stated that the Veteran's shoulder issues have caused him a lot of pain and weakness. She asserted that the Veteran cannot hold a job because of the pain in his shoulder and that he was fired from a job because he "dropped things due to his shoulder." She also contended that his shoulder issues forced him to have attendance issues because it was too difficult for him to work. A September 2019 VA Form 21-4192 from the Veteran's last employer indicated that the Veteran was terminated for attendance issues, commenting that the Veteran "missed a lot of work due to disability." A November 2019 VA examination report noted that his left shoulder pain and left arm symptoms impair his lifting, raising arm, and the use of his left hand to grab and grasp items. Upon review of the evidence, the Board finds that the functional limitations caused by the Veteran's service-connected left shoulder impingement associated with his humerus impairment and his left arm limitation of motion have rendered him unable to secure or follow substantially gainful employment in light of his education and employment history. The VA examiners opined that he cannot use his left hand to lift objects and has constant pain and weakness that significantly limits his ability to move his upper extremities. As supported by the medical evidence of record and statements from the Veteran and his spouse regarding the nature of his work experience in manual labor, the impairment of his left arm and left shoulder causes him pain and weakness when he tries lifting items. While the Veteran's prior past employer did not specific what disability caused him to lose his job due to attendance issues, the weight of the evidence supports a finding that his service-connected disabilities have rendered him unemployable. For the foregoing reasons, the Board finds that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. Therefore, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(a). The Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an notice of disagreement is then of record as to the downstream issue of an effective date for the assignment of that rating.") K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.