Citation Nr: 22017576 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-36 267 DATE: March 25, 2022 ORDER Entitlement to service connection for a bilateral knee disability has been withdrawn. Entitlement to a rating in excess of 20 percent for a right shoulder disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. FINDINGS OF FACT 1. During the Veteran's December 2021 hearing before the Board of Veterans' Appeals (Board), the issue of entitlement to service connection for a bilateral knee disability was properly withdrawn on the record. 2. The Veteran's right (dominant) shoulder disability was productive of painful motion, with evidence of limitation of motion at shoulder level. 3. The Veteran is unable to work as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for a bilateral knee disability have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2020). 2. The criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5010, 5201 (2020). 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 2009 to November 2009. This case comes before the Board on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2021. A copy of the transcript is associated with the claims file. During the Board hearing, the Veteran has asserted that he is no longer able to work due to his service-connected disabilities. As such, the Board has taken jurisdiction of the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Of note, in a June 2018 rating decision, the rating assigned for the Veteran's right shoulder disability was increased to 20 percent effective February 12, 2015. However, as a higher rating is available for the Veteran's service-connected right shoulder disability, this issue remains in appellate status. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Dismissal Service Connection for Bilateral Knees 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55 (2020). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55 (2020). In the present case, the appellant has withdrawn the appeal with regard to the issue of entitlement to service connection for a bilateral knee disability and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed as to the issue of entitlement to service connection for a bilateral knee disability. Increased Rating Right Shoulder The Veteran seeks a rating in excess of 20 percent for his service-connected right shoulder disability. A review of the Veteran's VA outpatient treatment reveals that the Veteran reported right shoulder pain on occasion; however, no clinical findings pertinent to rating the right shoulder were reported. During an April 2015 VA examination, the Veteran was reported to be right hand dominant. He reported decreased range of motion, severe pain, and limited mobility due to pain during flare-ups. His functional loss included less movement than normal. Range of motion testing revealed right shoulder flexion and abduction of 160 degrees with pain and external and internal rotation to 90 degrees. Range of motion findings remained the same after repeated use. There was mild tenderness on the right clavicular area. There was no evidence of pain with weight bearing. Pain, fatigue, weakness, and lack of endurance did not significantly limit the Veteran's functional ability. The Veteran reported flare-ups five to ten times per day lasting thirty to sixty minutes. Pain significantly limited the Veteran's functional ability, but the examiner indicated that he could not provide an estimate in terms of range of motion because the limited motion depends on the type of activities performed and severity of pain experienced. Pain, fatigue, weakness, and lack of endurance did not significantly limit the Veteran's functional ability with repeated use over a period of time. Muscle strength testing was normal with no muscle atrophy. No ankylosis of the right shoulder was present. The Veteran was reported to have undergone a right clavicular surgery for a right clavicular fracture in 2009. The examination was unremarkable for any additional pertinent procedures, physical findings, signs and/or symptoms. Upon review of the evidence, the Board finds that the Veteran's right shoulder disability does not warrant a rating in excess of 20 percent. There is no indication from the record that the Veteran has experienced right arm flexion and/or abduction limited to midway between his side and shoulder level (45 degrees). In fact, the Veteran's dominant right shoulder disability has been shown to be limited, at worst, to flexion and/or abduction to shoulder level (90 degrees). Further, the examiner considered the impact of pain, weakness, fatigability, and incoordination when determining the Veteran's range of motion present. As such, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a higher rating. As such, a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5201. The Board has considered assigning a higher rating under another diagnostic code pertaining to the shoulder. However, there is no evidence of record showing that the Veteran had ankylosis of the scapulohumeral articulation, other impairment of the humerus, or impairment of the clavicle or scapula, and as such Diagnostic Codes 5200, 5202, and 5203 respectively, are not applicable. 38 C.F.R. § 4.71a. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a rating in excess of 20 percent is not warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). TDIU The Veteran is service-connected for a surgical scar of the right shoulder, rated as 0 percent (noncompensable) disabling; a left hip disability, rated as 10 percent disabling; a left hip disability, rated as 10 percent disabling; a lumbar spine disability, currently rated as 10 percent disabling; a right shoulder disability, rated as 20 percent disabling; and a psychiatric disorder, rated as 50 percent disabling. The Veteran's combined rating is 70 percent disabling. He thus satisfies the schedular requirement for consideration of TDIU. 38 C.F.R. § 4.16(a). The question at issue is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence shows that the Veteran last worked from April 1, 2018, to May 1, 2018, as a gate technician for controlled access. Prior to that, he worked as a mechanic for Thunder Valley Customs from February 20, 2017, to March 8, 2017. He completed three years of high school and received six months of training as an automotive and auto body technician. With respect to whether the Veteran is unemployable due to his service-connected disabilities, the Veteran submitted a vocational rehabilitation assessment conducted by S. Hollander of Vargas Vocational Consulting. Ms. Hollander reviewed the Veteran's claims file and conducted a telephone consultation. She acknowledged the Veteran's service-connected disabilities noted above and opined that it is more likely than not that the Veteran was precluded from securing and following substantially gainful employment from at least August 17, 2015, due to his service-connected depression, low back, left hip, and right shoulder conditions. The examiner cited to the Veteran's relevant medical records and VA examinations as rationale for the conclusion. The Veteran also submitted a summary of his income from the Social Security Administration (SSA) which indicates that he earned less than the federal poverty level since at least 2015. He testified to the same at his Board hearing. Given the Veteran's occupational history and the impact that his service-connected disabilities have on his ability to work, the evidence for and against the claim is in approximate balance as to whether he is precluded from obtaining and maintaining any form of gainful employment due to his service-connected disabilities. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). REASONS FOR REMAND The claim for service connection for a lumbar spine disability must be remanded for the issuance of a supplemental statement of the case (SSOC). A review of the record shows that additional relevant evidence was added to the file by VA since the last statement of the case (SOC) regarding that issue in June 2018. Specifically, a December 2019 VA thoracolumbar spine examination report has been associated with the claims file. As no SSOC was issued after the addition of that record to the claims file, remand is required so that this new evidence can be reviewed in the first instance by the agency of original jurisdiction (AOJ). 38 U.S.C. § 7105; 38 C.F.R. § 19.31. (Continued on the next page) The matters are REMANDED for the following action: Readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.