Citation Nr: 23020434 Decision Date: 04/04/23 Archive Date: 04/04/23 DOCKET NO. 18-26 728 DATE: April 4, 2023 ORDER Entitlement to service connection for left shoulder disability is denied. Entitlement to service connection for right shoulder disability is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted from July 1, 2014 to July 22, 2022, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran's left shoulder disability is not related to service, and is neither caused nor aggravated by his service-connected lumbar spine disability. 2. The Veteran's right shoulder disability is not related to service, and is neither caused nor aggravated by his service-connected lumbar spine disability. 3. The Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation from July 1, 2014 to July 22, 2022. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU are met from July 1, 2014 to July 22, 2022. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1975 to December 1975, from December 1980 to May 1982, and from November 1990 to May 1991, including service in Operation Desert Storm, for which he received three Bronze Stars. This case comes to the Board of Veterans' Appeals (Board) on appeal of a January 2015 rating decision that, among many other things, denied entitlement to service connection for bilateral shoulder pain and denied an increased rating for service-connected low back strain with degenerative disc disease (DDD). The Veteran filed a notice of disagreement (NOD) in February 2015 with these and the other determinations and was issued a Statement of the Case (SOC) in March 2018. In May 2018, the Veteran filed a timely substantive appeal to the Board, and, in March 2022, the Board granted multiple service connection claims and remanded the claims for service connection for right and left shoulder disabilities for further development. The March 2022 Board Remand also indicated that the record reflected possible unemployability due to his service-connected disabilities including the lumbar spine disability and remanded for further development. In October 2022, the Board remanded the claims again for compliance with the March 2022 Remand instructions. All remand instructions were complied with regarding the claim for service connection for bilateral shoulder disability as, for the reasons indicated in the discussion below, adequate medical opinions were provided and a second letter providing the Veteran notice of information required to substantiate a TDIU claim was sent. The matters have since returned to the Board for adjudication. As a final preliminary matter, also noted in the October 2022 Board Remand, the Veteran was previously represented by a private attorney (see a July 2019 "Appointment of Individual as Claimant's Representative" form (VA Form 21-22)). In January 2022, the Veteran revoked this private attorney as his representative, noting he would give the name of a new representative at a later time. However, to date, he has not appointed any other organization or individual as his representative. Therefore, he is now considered to be unrepresented. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In October 2022, the Board remanded the Veteran's claims for service connection for bilateral shoulder disabilities for medical opinions from a qualified VA physician to determine the nature and etiology of the Veteran's bilateral shoulder disability, specifically to determine whether it is at least as likely as not that the Veteran's bilateral shoulder disability is either caused or aggravated by his service-connected lumbar spine disability. The issue of entitlement to a TDIU was also remanded so a second attempt could be made to send the Veteran a letter including the necessary information needed to substantiate entitlement to this benefit. In November 2022, adequate medical opinions were provided by a qualified physician, and on November 1, 2022, VA wrote to the Veteran asking to send a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), thereby complying with the October 2022 Remand instructions in this regard. In June 2022, the Veteran was provided a VA examination for his bilateral shoulder disabilities where he was diagnosed with bilateral shoulder strain, thereby satisfying the current disability element. The VA examiner provided a negative medical opinion on the Veteran's claimed bilateral shoulder disability, noting that he searched the file and did not see any instances of treatment for shoulder pain until after a 2010 car accident the Veteran suffered. The VA examiner did note the Veteran's in-service shoulder condition but remarked that it was acute and separate from his current shoulder condition. Therefore, he concluded, it was less likely than not that the Veteran's current bilateral shoulder disability is related to his in-service shoulder condition. The VA examiner further concluded that it is less likely than not that the Veteran's bilateral shoulder disability is related to military service and at least as likely as not related to the 2010 car accident because complaints of shoulder pain began again after the accident. As the VA examiner thoroughly reviewed the Veteran's records and provided a thorough and well-reasoned analysis, this medical opinion is afforded significant probative weight. Regarding whether the Veteran's bilateral shoulder disability was caused by his service-connected lumbar spine disability, a November 2022 VA physician's assistant (PA) offered adequate and probative negative medical opinions. The PA noted the Veteran's lumbar spine injury while deployed in 1990, but that his service treatment records are silent for shoulder injury during active duty, including a March 1991 examination just prior to separation where his lumbar condition was noted but his shoulder condition was not and a November 1992 examination during his time in the Reserves where his back injury was noted but his shoulder condition was not. In fact, the PA noted, the Veteran's records were silent as to any shoulder issue for the proceeding eight years until the December 2000 car accident where he was driving an 18-wheeler that rolled over on the roof and pushed his head and body into the seat. The Veteran was also attacked with metal rods in June 2010 and was seen for shoulder, neck and chest pain, and then suffered a second car accident in August 2010, which resulted in neck and shoulder pain necessitating the need for a walking cane. The lack of notation of the Veteran's shoulder condition in the medical records combined with the significant intervening events and the Veteran's statements in the June 2022 VA examination support the November 2022 VA physician's medical opinion that it is less likely than not that the Veteran's bilateral shoulder condition is caused by his service-connected lumbar spine disability. Regarding aggravation, the November 2022 VA PA concluded it was less likely than not that the Veteran's bilateral shoulder disability was aggravated beyond its natural progression by his service-connected lumbar spine disability. While incorporating the above analysis, the VA PA noted the silence of any notation of shoulder issues in the medical records until the Veteran's first car accident in 2000, and then silence again until the second car accident and metal rod attack in 2010 leads to the conclusion that it is less likely than not the Veteran's service-connected lumbar spine disability aggravated his bilateral shoulder condition beyond its natural progression. The VA PA did note that it is at least as likely as not that the Veteran's use of a cane for his service-connected lumbar spine disability could aggravate the Veteran's shoulder disability, the PA indicated that this would be the case only if the cane is not used correctly and/or fitted correctly and there is no evidence of argument that this was the case. The Board notes that in Spicer v. McDonough, __ F.4th __, No. 2022-1239, 2023 U.S. App. LEXIS 5470, *14 (Fed. Cir. Mar. 8, 2023), the Federal Circuit held, "To the extent that the VA also applied 38 C.F.R. § 3.310(b) to reject Mr. Spicer's theory of compensation, that regulation is unlawful as inconsistent with 38 U.S.C. § 1110." Although the Federal Circuit did not explain its reason for this portion of its holding, the reasons given in the opinion dissenting from the Court's contrary conclusion, Spicer v. McDonough, 34 Vet. App. 310, 315 (2021) (Allen, J. dissenting), reflect the view that the language precluding compensation for any increase "not due to the natural progress of the nonservice-connected disease" conflicts with the broad causation requirement in 38 U.S.C. § 1110. Given that the negative opinion in this case did not specifically find a lack of relationship based on this language, Spicer does not require a different result. In sum, the record contains probative medical opinions weighing against service connection for the Veteran's bilateral shoulder disability on a direct and secondary basis, and no opinions in favor. For the foregoing reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for bilateral shoulder disability is warranted. Rather, the evidence persuasively weighs against. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application.) The claims must therefore be denied. TDIU In the March 2020 Remand, the Board noted that the record raised the possibility that the Veteran may be unemployable due to his service-connected disabilities and asked that the Veteran be sent the required forms. Notably, at that time, one of the issues before the Board related to the rating for his service-connected lumbar spine disability. Given evidence suggesting that this and other disabilities caused unemployability, the issue of entitlement to a TDIU was found to be part and parcel of the lumbar spine rating claim and therefore before the Board. The claim for an increased rating for lumbar spine disability that was on appeal was filed on July 1, 2014. Consequently, that is the relevant date of claim for determining the appeal period for TDIU. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. §§ 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one non-economic. The economic component means 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose v. Brown, 4 Vet. App. 363 (1993). "A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, is "whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id. In the March 2022 and October 2022 Board Remands, the Board instructed the RO to ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) to learn his education and employment history and earnings. In both instances, the RO complied with this Remand instruction. However, the Veteran did not submit VA Form 21-8940 and has not otherwise provided any information pertaining to his educational background, employment history, or earnings. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street). The degree to which the Veteran's ability to work may be impacted by his service-connected disabilities is unclear without the VA Form 21-8940 and information regarding his education, employment history, or earnings. Under 38 U.S.C. § 5107 (a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not done so in this case. Therefore, the Board must proceed with adjudication based on the evidence of record. The Veteran is in receipt of disability ratings for the service-connected disabilities: posttraumatic stress disorder (PTSD), chronic low back strain with degenerative disc disease (lumbar DDD; 40 percent from June 2010)), cervical spine degenerative disc disease (neck DDD), bilateral upper extremity radiculopathy with neck DDD, bilateral hip degenerative joint disease (DJD), bilateral knee DJD, skin disability, bilateral hand DJD of all five fingers, testicular pain, enlarged prostate, lower left abdomen scar, and tension headaches. His combined disability rating is 90 percent from July 1, 2014, and 100 percent from July 2022. Hence, the Veteran meets the percentage criteria for a TDIU laid out in 38 C.F.R. § 4.16 (a) for the entire appeal period, when he had a single disability rated as 40 percent (lumbar DDD) and a total evaluation of at least 70 percent. A review of the record shows that the combined functional impairment from the Veteran's service-connected disabilities do indeed preclude the Veteran from securing or following a substantially gainful occupation. While the Board does not have information related to the Veteran's work history or education levels from the VA Form 21-8940, the record shows he was previously employed as a truck driver. A December 1998 Emergency Department Triage Note reported the Veteran has having self-reported bad thoughts about harming other people, being depressed, having insomnia and difficulty dealing with other people, thinking concrete thoughts, but no suicidal ideation. A private physician provided a 2001 opinion following an examination that the Veteran was no longer capable of returning to work as a truck driver and "I would expect that he would only be able to function in the sedentary to light work category." The Veteran has not worked since 2000 and was on workers compensation until 2008. A July 2010 mental health note reported the Veteran was homeless for a period of time, was separated from his wife, and was suffering from memory loss, depression and sleeplessness. An August 2013 VA examination reported the Veteran had difficulty keeping a job and was currently not working. A review of September 2013 VA examinations described the Veteran's symptomatology as migraine headaches 3-4 times a week, the use of a CPAP machine to treat sleep apnea, muscle pain throughout this body, depressed mood, memory loss, flattened affect, and insomnia. An April 2014 VA physician noted multilevel DDD with severe spinal canal stenosis with a mass effect on the cord. A May 2014 private physician noted disc herniation of the Veteran's neck and back and arthritis in his knees, neck and back. A January 2018 VA examination noted depressed mood, anxiety, chronic sleep impairment, flattened affect, impaired judgement, disturbances of motivation and mood, difficulty establishing relationships and difficulty adapting to stressful circumstances. The Veteran also reported at the VA examination that he had several sources of anxiety that he has experienced over several years. The Veteran testified at his July 2021 Board hearing that a VA doctor in 2015 gave him a walking cane, back support and TENS units for his lumbar DDD, that he has constant back pain to this day, is on pain medication, and his skin itches all over. He concluded his hearing by testifying that he has tried to get work but it is impossible because of his service-connected disabilities, to include his PTSD, resulting in him getting angrier than he likes around people. The above evidence shows that the Veteran's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. Moreover, 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). Entitlement to a TDIU due to the combined effects of his service-connected disabilities is therefore warranted from July 1, 2014 through July 22, 2022. The Board notes that a formal TDIU application, VA Form 21-8940, is not of record. 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 IU based on the available evidence of record. While the Adjudication Manual is not binding on the Board, 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"), deciding the issue of entitlement to a TDIU based on the evidence of record is warranted in this case for the above reasons. (Continued on the next page) ? In addition, the issue of entitlement to a TDIU is moot when a veteran is in receipt of a 100 percent rating and the TDIU cannot assist him in seeking entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s)(1). Bradley v. Peake, 22 Vet. App. 280, 293 (2008). As the Veteran is already in receipt of a 100 percent rating from July 22, 2022, the TDIU is based on a combination of the service-connected disabilities, and there is no evidence or argument that a single disability causes unemployability, TDIU cannot assist the Veteran in obtaining SMC(s)(1) and is therefore moot from July 22, 2022. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board JR Cummings, 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.