Citation Nr: 22014753 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 14-12 305 DATE: March 14, 2022 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) for the period from January 6, 2020, is granted. REMANDED Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to TDIU for the period preceding January 6, 2020, is remanded. FINDING OF FACT For the period from January 6, 2020, the evidence demonstrates that the Veteran's service-connected disabilities meet the schedular prerequisite percentages for an award of TDIU and that his disabilities rendered him unable to obtain or maintain a substantially gainful course of employment. CONCLUSION OF LAW The criteria for entitlement to TDIU for the period from January 6, 2020, have been met for the period from January 6, 2020. 38 U.S.C. § 501; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to December 1970. These matters come to the Board of Veterans' Appeals (Board) from a rating decision issued in August 2011. In appealing these issues to the Board, the Veteran initially requested a hearing. He withdrew his request for a hearing in correspondence from October 2015. These matters were previously before the Board in January 2018 and August 2021. The Veteran has separately appealed a decision regarding entitlement to an earlier effective date for the increased rating for PTSD under the provisions of the Appeals Modernization Act (AMA). That appeal will therefore be treated in a separate decision and is not addressed here. Increased Rating 1. Entitlement to TDIU for the period from January 6, 2020 The Veteran seeks a TDIU. He contends that his service-connected disabilities have rendered him unable to obtain or maintain a substantially gainful course of employment. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes 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, 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. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the period from January 6, 2020, the Veteran is rated 70 percent for PTSD, 20 percent for bilateral hearing loss, 10 percent for tinnitus, and noncompensable for hypertension. Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The record reflects that the Veteran worked as an orderly at a hospital. However, he has not worked at all during the relevant portion of the appeal period. The Veteran's ability to secure and follow a substantially gainful occupation is primarily impacted by the mental effects of his service-connected psychiatric condition. The January 6, 2020, VA examination documents that the Veteran has symptoms of depressed mood, anxiety, suspiciousness, mild memory loss (for names, directions, or recent events), chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a work-like setting), and spatial disorientation. Within the necessary criteria for a diagnosis of PTSD, the examiner also documented irritable behavior and angry outbursts (with little or no provocation). The examiner also documented exaggerated startle response, hypervigilance, social withdrawal, heightened anxiety, intrusive memories, flashbacks, disorientation, nightmares, disrupted focus, and arousal to and/or avoidance of cues and/triggers. The Veteran has remained unemployed for the entire appeal period, and it is clear from the substantial list of symptoms documented by the January 6, 2020, examination report would make the Veteran unable to function in an occupational environment. Accordingly, a TDIU is warranted for the period from January 6, 2020, the period during which the Board has authority to consider entitlement to TDIU in the first instance. REASONS FOR REMAND 1. The matters of (1) Entitlement to service connection for a right shoulder condition and (2) Entitlement to service connection for a left shoulder condition are remanded. The Board finds that an addendum opinion is required as to the etiology of the Veteran's shoulder conditions, because the rationales provided to support the October 2021 opinions are not sufficient. The opinions provided appear to be responsive to whether the Veteran's shoulder conditions are the result of a discrete injury during service based on the way that the opinion is phrased. However, the theory presented by the Veteran is that his current shoulder conditions are the result of repetitive overuse of the Veteran's shoulders during service. Additionally, the examiner appears to have based the opinions primarily on the lack of a contemporaneous complaints and reported symptoms by the Veteran. However, this lack of contemporaneous report has been explained by the Veteran in lay statements, in that he claims that the conditions have been present with service but were previously controllable by over-the-counter medication; and the lack of contemporaneous examination, treatment, or report of symptoms is not alone sufficient as a rationale for concluding that a condition is not service-connected. Finally, with respect to the Veteran's right shoulder condition in particular, the opinion appears to indicate that the Veteran's right shoulder condition is related to a later injury in 2019. However, the Veteran's treatment records indicate that the Veteran has a history of problem with the right shoulder, including a reported history of right shoulder surgery prior to this 2019 event. Entitlement to TDIU for the period preceding January 6, 2020, is remanded. The Veteran seeks a TDIU for the period preceding January 6, 2020. However, during the period prior to that date, the Veteran has a combined disability rating of 20 percent (until September 15, 2011), 40 percent (until April 15, 2019), and 50 percent (until January 6, 2020), and the highest compensated disability rating for any individual disability during this period is a 30 percent rating for PTSD. 38 U.S.C. § 501; 38 C.F.R. § 4.16(a). Consequently, the Veteran does not meet the schedular pre-requisite percentages for the Board to consider entitlement to TDIU on the merits in the first instance. However, both the Veteran and his friends and family have reported that the Veteran's symptoms, particularly his psychiatric condition, have rendered him unable to obtain or maintain a substantially gainful course of employment. Therefore, the Board finds that the evidence presently presented meets the criteria to refer this matter to the Director, Compensation Service, for consideration of an extraschedular rating for TDIU under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right and left shoulder conditions are at least as likely as not caused by the Veteran's in-service lifting of heavy items as part of his duties in an artillery unit. A complete rationale should be provided and should account for the Veteran's entire history of shoulder conditions and treatment as recorded in the Veteran's treatment records and be based on more than a lack of contemporaneous complaints or treatment for shoulder conditions during or near to service. 2. Refer the matter of entitlement to TDIU for the period prior to January 6, 2020, to the Director, Compensation Service, for consideration of entitlement to TDIU on an extraschedular basis. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.