Citation Nr: 25003789 Decision Date: 03/20/25 Archive Date: 03/20/25 DOCKET NO. 16-04 309 DATE: March 20, 2025 ORDER Entitlement to a temporary total disability rating based on convalescence following an August 23, 2012 left shoulder surgery beyond December 31, 2012, is dismissed. From November 5, 2015 to January 4, 2024, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Basic eligibility for Dependents' Educational Assistance (DEA) is granted effective November 5, 2015. REMANDED Entitlement to a TDIU prior to November 5, 2015 is remanded. FINDINGS OF FACT 1. On February 13, 2025, the Veteran, through his attorney, submitted a written notice of withdrawal of his claim of entitlement to a temporary total disability rating for left shoulder disability based on convalescence following an August 23, 2012 left shoulder surgery beyond December 31, 2012. 2. From November 5, 2015 to January 4, 2024, the Veteran's combined schedular disability rating met the minimum percentage requirements in 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis, and his service-connected disabilities prevented him from securing and following a substantially gainful occupation consistent with his education, skills, training, and work history. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to a temporary total disability rating based on convalescence following an August 23, 2012 left shoulder surgery beyond December 31, 2012 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. From November 5, 2015 to January 4, 2024, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.16, 4.18, 4.19. 3. The criteria for basic eligibility for DEA are met effective November 5, 2015. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to November 1977, from January 2003 to October 2004, and from February 2005 to January 2006. These claims have a lengthy procedural history. Most recently, an October 2023 Board decision remanded the claims for additional development. A September 2024 supplemental statement of the case (SSOC) denied the claims, and the claims were returned to the Board for additional review. Regarding the claims being decided herein, the Board finds that the AOJ substantially complied with the remand directives and the issues are ready for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). However, as explained below, a remand is required for the claim for a TDIU prior to November 5, 2015. 1. Entitlement to a temporary total disability rating based on convalescence following an August 23, 2012 left shoulder surgery beyond December 31, 2012 is dismissed. An appeal may be withdrawn by an appellant or his or her authorized representative 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. In Hembree v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that written withdrawals of an appeal are governed by the application of regulations instead of DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (requiring a withdrawal to be explicit, unambiguous, and done with a full understanding of the consequences) See 33 Vet. App. 1,7 (2020). As this case is a legacy system appeal, the applicable regulation is 38 C.F.R. § 19.55, which requires that the withdrawal include the name of the Veteran or appellant, the VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issues that are withdrawn. 38 C.F.R. § 19.55. In response to the September 25, 2024 SSOC, which adjudicated the issue of entitlement to a temporary total disability rating based on convalescence following an August 23, 2012 left shoulder surgery beyond December 31, 2012, the Veteran, through his attorney, submitted a February 13, 2025 written notice stating he was withdrawing this specific issue. The written notice further stated that following this withdrawal, the remaining claim before the Board for adjudication is entitlement to a TDIU prior to January 5, 2024. The written notice included the VA claim number and the Veteran's name. The Board therefore finds that the Veteran's withdrawal is valid and effective upon its receipt by the Board. Accordingly, the Board does not have jurisdiction to review this issue on appeal, and the appeal as to the issue of entitlement to a temporary total disability rating based on convalescence following an August 23, 2012 left shoulder surgery beyond December 31, 2012 is dismissed. 38 C.F.R. § 19.55. 2. From November 5, 2015 to January 4, 2024, a TDIU is granted. Following review of the record, the Board finds a TDIU is warranted from November 5, 2015 to January 4, 2024. Entitlement to an even earlier effective date for the award of a TDIU is addressed in the remand portion of this decision, below. 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). TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such 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. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, and as relevant here, disabilities resulting from a common etiology or a single accident will be considered as one disability. Id. Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). 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. The Court defined "employment in a protected environment" within 38 C.F.R. § 4.16(a) to unambiguously mean "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary is required to give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. The issue of entitlement to a TDIU was raised by the record in the context of the January 2014 increased rating claim for a left shoulder disability. A claim for a TDIU is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a request for a TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate disability rating, either as part of the initial adjudication of a claim or as part of a claim for increased compensation). From November 5, 2015, the Veteran had a combined rating of at least 70 percent, with at least one disability rated at least 40 percent disabling (his posttraumatic stress disorder (PTSD)), meaning he meets the threshold schedular eligibility requirements for a TDIU effective that date. Moreover, since November 5, 2015, the evidence is approximately balanced as to whether his service-connected disabilities preclude him from accomplishing the physical and mental tasks required by substantially gainful employment consistent with his education, training, and vocational history. The evidence reflects that the Veteran asserted he has not worked since December 2014 due to his service-connected disabilities. He last worked in 2014 as a home inspector and has years of previous work experience as a pressure washer. The Veteran asserted he completed an associate degree in criminal justice and has an EMT certification. The Veteran asserted that his PTSD and bilateral shoulder tendonitis with impingement (shoulder disabilities) prevent him from securing or following any substantially gainful occupation. See February 13, 2025 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability; March 2016 Vocational Rehabilitation and Employment (VR&E) records. The Veteran asserted that he had unpaid part-time volunteer work from 2014 to 2024 at a bar. He explained that he lived behind the bar, did not lift items, and left if many people were there. See February 2025 private vocational assessment report. The Board does not consider this volunteer work to be substantially gainful activity or evidence that the Veteran can engage in substantially gainful activity, due to the part-time nature of the work and the fact that the functional limitations of the Veteran's service-connected disabilities were accommodated. Turning to the medical evidence, a March 2013 VA treatment note states the Veteran was scheduled for a second left shoulder surgery due to partial thickness tearing of his cuff and possible labral tearing. At that time, the Veteran reported he was unable to work at his self-owned business as a power sprayer for well over a year, since December 2011. A July 2013 private treatment note states that the Veteran owns a pressure washing business but has not been able to fulfill the duties of his business because of pain in his left shoulder. The note indicates an MRI showed a recurrent tear in the shoulder and the plan to proceed with surgery was reviewed. A May 2014 VA shoulder examination notes that the Veteran cannot lift heavy objects and can barely lift his arms against gravity. The examiner noted that this causes difficulty performing most work other than sedentary work. The examiner noted functional loss in both shoulders after repetitive use; specifically, less movement than normal, weakened movement, and pain on movement. A November 2014 treatment note indicates the Veteran was not working due to his shoulder. March 2016 VR&E records indicate the Veteran cannot push, pull or reach overhead. An October 2016 VA shoulder examination notes the Veteran has functional impairment of the inability to use his arms overhead, difficulty carrying bags, the inability to sleep or lie on his sides, and difficulty lifting. An August 2018 VA treatment note states the Veteran asserted he cannot perform any activities overhead, and that he is not working. A December 2018 VA treatment note states the Veteran reported that after service he tried to go back to work but had problems keeping a job. He asserted that he started a power washing company, but his shoulders started bothering him to the point that he could no longer work. He further asserted he has not been able to work since, except for one year as a home inspector, but he became angry too easily and was forced to resign. He further stated that he has trouble carrying more than 10 pounds of groceries and cannot do any overhead work. A November 2019 VA pain management treatment note indicates the Veteran has a significant decrease in active range of motion and upper body strength because of his shoulder pain. A January 2020 VA shoulder examination notes pain upon examination causing functional loss, and that the Veteran had pain with removing his jacket and shirt. The Veteran reported pain with reaching, pulling, overhead activity, and lifting more than 10 pounds. A June 2021 VA treatment note characterizes his left shoulder condition as that of failed rotator cuff repair. At a January 2022 VA shoulder examination, the examiner noted that pain limits the Veteran's ability to lift heavy objects, thereby compromising the job function. A December 2023 VA shoulder examination notes the Veteran was forced to retire due to his inability to perform pressure washing duties. The Veteran asserted that he cannot lift anything above his head, perform yardwork, or exercise his shoulders, and that he experiences chronic sleep impairment and disturbances of motivation and mood. Regarding functional impairment, the examiner noted that the Veteran is unable to participate in activities that require prolonged walking, standing, or exercise; unable to help with chores around the house or yard work; and unable to lift or carry things above his head. The examiner opined that the Veteran is unable to stock shelves, and reports pain with driving, such that typing for long periods would cause pain in his shoulders as well. An August 2024 VA shoulder examination noted current symptoms of pain with lifting, pulling, overhead labor, and pain with sleeping wrong. The examiner noted functional impairment such that the Veteran cannot do overhead work, lift groceries, or mow grass. The Veteran noted frequent flare-ups of both shoulders which last for two to five days and are precipitated by lifting overhead, elevating his arms, a weather change, cutting grass, or washing a car. The examiner opined that the veteran had significant limitation of occupational tasks requiring abduction or flexion of arms at shoulders, and is limited for overhead labor, cutting grass, lifting heavy items, and picking up items due to pain. A November 2015 VA PTSD examination notes the Veteran had two jobs in the last couple of years but had problems concentrating on the job due to his PTSD, in addition to problems with employment due to his left shoulder condition. The examiner found the Veteran to have symptoms of chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation, and intermittent inability to perform activities of daily living including the maintenance of minimal personal hygiene. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A January 2024 VA PTSD examination found the Veteran to have total occupational and social impairment. The examiner noted symptoms of difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; grossly inappropriate behavior; and persistent danger of hurting self or others. The examiner opined that the Veteran forgets tasks, is easily distracted, and is likely to struggle significantly in a workplace due to his poor interpersonal skills, poor anger management, irritability, and aggressive behaviors. The examiner further noted that the Veteran's behavior of destroying property when triggered is unlikely to be tolerated in a work setting. The Veteran submitted a February 2025 private Vocational Assessment Report. Regarding the functional limitations of his PTSD, the Veteran asserted that he does not like people very much; does not like being out in public; has had a few fights with other people; and that he seems to take things wrong with other people; and it does not take much to set him off. Regarding his shoulder disabilities, the Veteran stated that he cannot do anything with carrying or holding at all, and that it hurts to lift his hands over his shoulders. The Veteran's caregiver asserted that she takes care of the house entirely, and the Veteran cannot hold anything weight-wise due to his shoulders. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to prove that a claimant exhibited certain symptoms and the time period that those symptoms appeared); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board finds this lay evidence competent and credible and assigns it significant probative weight. The February 2025 private examiner opined that, after considering the medical records from multiple service providers as they relate to the limitations of the Veteran's PTSD and bilateral shoulder disabilities, the Veteran has been unable to secure and follow substantially gainful employment, to include both skilled and unskilled sedentary work, since at least January 2013 when he last worked at his pressure washing business. The examiner further opined that the Veteran's shoulder disabilities limit even sedentary work. The rationale was that as a result of the Veteran's service-connected bilateral shoulder tendonitis, he has a decreased ability to reach or repetitively utilize the upper extremities as a result of pain, numbness and tingling. The examiner opined that these limitations preclude his ability to perform sedentary office tasks requiring repetitive use of the bilateral upper extremities, such as typing, writing, operating a telephone, or sorting files. Finally, the examiner opined that the Veteran's associate degree in criminal justice would not readily transfer into other fields or types of employment. The Board finds this opinion to be of great probative weight. It considers the symptoms of the Veteran's PTSD and bilateral shoulder disabilities, the Veteran and caregiver lay statements, and the Veteran's medical and service history. The examiner noted she had conducted an interview of the Veteran and reviewed his file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (opinion is probative when it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data). Resolving all reasonable doubt in favor of the Veteran, the Board finds that from November 5, 2015 to January 4, 2024, the Veteran's service-connected disabilities of PTSD and his bilateral shoulder disabilities, combined, preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran has two years of college education; certification as an EMT; and previous work experience as a pressure washer. Because the Veteran's employment history consists of purely physical employment occupations, he is impeded in his ability to obtain employment consistent with his previous work history or in a similar work setting. The February 2025 private vocational opinion credibly describes how the functional limitations of his bilateral shoulder disabilities would render work in a sedentary position unfeasible. In addition, a December 2023 VA examiner opined that typing for long periods would cause pain in the Veteran's shoulders. Finally, the evidence shows that during the period on appeal, the Veteran's service-connected PTSD compromises his ability to be employed, causing difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, which would be required to obtain and maintain substantially gainful employment. Although he has EMT certification, the Veteran does not have work experience as an EMT, and an EMT position would require lifting and use of the bilateral upper extremities that the evidence shows the Veteran is unable to perform. In short, the Board finds that the above-discussed evidence brings the overall evidence addressing whether the Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation consistent with his education, skills, training, and work history at least into relative equipoise. Accordingly, entitlement to a TDIU is granted from November 5, 2015 to January 4, 2024. Basic eligibility for DEA is granted effective November 5, 2015. For the purposes of?DEA, basic eligibility exists if a veteran was discharged from service under conditions other than dishonorable and has a permanent and total service-connected disability.?38?U.S.C. §?3501;?38?C.F.R. §§?3.807, 21.3021. There are other avenues through which basic eligibility may be established; however, they involve factors not applicable here, e.g., the death of a veteran or if a veteran is currently on active duty.? Id.? The Veteran is currently in receipt of DEA benefits effective January 5, 2024. As a result of the award of an earlier effective date for a TDIU in this decision, the Veteran is now in receipt of a total schedular rating effective November 5, 2015. Therefore, the Veteran is also eligible for DEA effective November 5, 2015. Accordingly, entitlement to DEA is granted from November 5, 2015. REASONS FOR REMAND Entitlement to a TDIU prior to November 5, 2015 is remanded. The Veteran asserts that the date his service-connected disabilities affected his full-time employment and the date he became too disabled to work was January 1, 2013. See February 13, 2025 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). In Snider v. McDonough, 35 Vet. App. 1 (2021), the Court found that, pursuant to Ray, entitlement to an extraschedular TDIU must be referred to the Director of Compensation Services for an initial determination where there is sufficient evidence to substantiate a "reasonable possibility" that a veteran is unemployable due to service-connected disabilities. In addition, the Court found that when denying extraschedular TDIU referral to the Director under § 4.16(b), the Board must make two determinations in its decision: (1) that a referral for extraschedular TDIU is not warranted under the "reasonable possibility" standard set forth in Ray, and (2) that TDIU benefits are not warranted because the veteran is not unemployable due to service-connected disabilities. After a review of the record, the Board finds there is a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities prior to November 5, 2015. In that regard, at a May 2014 VA shoulder examination, the examiner noted that the Veteran could not lift heavy objects and could barely lift his arms against gravity, causing difficulty performing most work other than sedentary work. The Veteran asserted that he was employed from 2007 to 2013 as a pressure washer but stopped working due to shoulder pain. The Veteran asserted that his shoulders gave out and he could no longer hold the pressure washer and he had to leave that position after his surgery. See February 2025 private Vocational Assessment Report. The February 2025 private vocational examiner opined that that the Veteran has been unable to secure and follow substantially gainful employment, to include both skilled and unskilled sedentary work, since at least January 2013, when he last worked at his pressure washing business. The Veteran asserted that he was employed as a home inspector for eight or nine months in 2014 but left due to anger, traffic, and interpersonal issues. The February 2025 private vocational examiner opined that this employment was an unmaintained, failed work attempt and was therefore not substantially gainful. Accordingly, the Board finds that, pursuant to Ray, the evidence of record shows there is a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities prior to November 5, 2015. 31 Vet. App. at 66. As the claim for a TDIU prior to November 5, 2015 has not yet been referred to the Director of Compensation Services for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b), the matter must be remanded for such referral at this time. The matter is REMANDED for the following action: (Continued on the next page) ? Refer the matter of extraschedular TDIU consideration for the period prior to November 5, 2015 to the Director of Compensation Service. L. STEPANICK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sargent 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.