SHOULDER IMPAIRMENT OF

SAUDIEE BROWN · 2022 · Case ID: 22015695

DENIED

Summary

The veteran, who served from March 1979 to March 1983, appeals the denial of service connection for a left shoulder disability and Total Disability based on Individual Unemployability (TDIU). The Board found that while the veteran had an in-service complaint and a current diagnosis of left shoulder disability, the evidence persuasively weighed against a service connection. A VA examination in October 2021 concluded that the veteran's current degenerative joint disease of the left acromioclavicular joint was less likely than not related to the in-service strain, noting the injury did not involve the AC joint and that degenerative changes are typically age-related. The Board found the VA opinion probative and gave it more weight than the veteran's and spouse's lay statements, denying service connection for the left shoulder. Regarding TDIU, the Board noted the veteran's combined rating was 40% prior to April 27, 2021, not meeting schedular requirements, and would require extraschedular consideration. From April 27, 2021, the veteran's combined rating increased to 80% due to new grants, meeting schedular requirements. However, the Board found TDIU not warranted, citing the veteran's voluntary early retirement from the Postal Service due to right foot pain and the lack of evidence demonstrating unemployability. The veteran also failed to provide updated employment and income information despite multiple requests, which the Board noted was essential for a TDIU claim. Ultimately, the Board found the weight of the evidence against unemployability, denying TDIU.

Rationale

VA examiner opinion found less likely than not related to service; Injury in service did not involve AC joint; Degenerative joint disease is age-related process; No evidence of nexus in service or at separation; Veteran's lay statements not given more weight than VA opinion

Special Benefit

TDIU

Docket No.

17-29 994

Full Decision Text

Citation Nr: 22015695
Decision Date: 03/18/22 Archive Date: 03/18/22

DOCKET NO. 17-29 994
DATE: March 18, 2022

ORDER

Entitlement to service connection for a left shoulder disability is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), on a schedular and extraschedular basis, is denied.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that a left shoulder disability began during active service, or is otherwise related to an in-service injury or disease.

2. Prior to April 27, 2021, the schedular requirements for TDIU were not met, and the Veteran's service-connected disabilities did not preclude him from securing and following a substantially gainful occupation.

3. From April 27, 2021, the preliminary schedular requirements for TDIU were met, but the Veteran's service-connected disabilities did not preclude the Veteran from securing and following a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for a TDIU, on a schedular and extraschedular basis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1979 to March 1983.

The claims were most recently before the Board of Veterans' Appeals (Board) in September 2021 when they were remanded for additional development. The Board finds there has been substantial compliance with the remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998).

1. Entitlement to service connection for a left shoulder disability.

The Veteran contends that he has a left shoulder disability was related to an injury in service.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that, while the Veteran has a diagnosis of left shoulder disability, and evidence shows an in-service left shoulder complaint, the evidence persuasively weighs against finding that the Veteran's left shoulder disability began during service or is otherwise related to an in-service injury, event, or disease.

In May 1979 the Veteran was treated for a left shoulder injury and was diagnosed with a probable coracobrachialis insertion strain. X-ray of the shoulder did not show significant abnormalities. Upon examination at separation from service in January 1983, the Veteran's upper extremities were noted to be normal. In the Report of Medical History at separation from service the Veteran denied swollen or painful joints, painful or "trick" shoulder, and arthritis.

The Veteran has reported that his left shoulder has been a chronic problem since he fell in service. He has also reported that he lived with physical pain for years and that it has increasingly and severely affected his quality of life. In April 2020 the Veteran's spouse reported that the Veteran had minor problems when they met 32 years prior. The spouse stated that the Veteran's physical problems gradually increased.

VA examinations and opinions were obtained in November 2016 and December 2019; however, the Board previously found these opinions to be inadequate.

A subsequent VA opinion in October 2021 found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In rendering the opinion, the examiner reported that records were reviewed including the remand documents and the May 2014 statements. The examiner reasoned that the Veteran's currently diagnosed degenerative joint disease of the left acromioclavicular (AC) joint is less likely than not related to events in service, including the events occurring in May 1979, at which time the Veteran was diagnosed with a strain and contusion, with a negative x-ray. The Veteran served an additional four years without evidence of a shoulder condition. The examiner found that this was highly unlikely given the rigors of service had the condition been chronic. The separation examination was negative for shoulder conditions. These examinations were notably thorough and include a history, physical and Veteran-answered Report of Medical History, which was specifically negative for painful or trick shoulder. The Veteran unequivocally did not have a chronic shoulder condition at the time of separation. There was no evidence of a shoulder condition until in or around 2016 and records from February 2019 note a one-month history. Regardless, there is no evidence of a nexus in service, at separation or for a span of 33 years. The examiner found that it was medically implausible that an individual could have endured four years of service and the ensuing time since service with a significant condition had its nexus been in service. The Veteran unequivocally did not have degenerative joint disease of the AC joint at the time of the x-ray in 1979. Degenerative joint disease (DJD) of the AC joint is an age-related process due to normal wear and tear over a lifetime. The injury in service did not involve the AC joint. It was noted by orthopedics as a coracobrachialis insertion strain. The examiner found that this is anatomically inconsistent with an AC joint injury. Though a joint separation could predispose the Veteran to develop DJD, the x-ray and physical examination eliminated the possibility of this occurrence in service. Therefore, it is less likely than not that the Veteran's currently diagnosed AC DJD is due to or incurred in service, including the acute, self-limited events in 1979. The bump described by the Veteran and noted on the Disability Benefits Questionnaire (DBQ) is not consistent with the Veteran's history and does not represent a link to service connection. The examiner found that it is more likely than not that the Veteran developed DJD naturally and or had a post-service shoulder injury predisposing to DJD. There was no such bump described at the time of the initial injury or at separation and it was not present on the x-ray in 1979. The medical evidence does not support the Veteran's claim of onset in service with continuity since service. The examiner found that the medical evidence unequivocally belies the Veteran's claims.

Entitlement to service connection for a left shoulder disability is not warranted. It is acknowledged that the Veteran was treated in service for a left shoulder complaint and the Veteran has a current diagnoses of left shoulder disabilities. However, a VA examiner has rendered the opinion that the Veteran's disabilities were are not related to his in-service injury and there was not continuity since service. The examiner provided rationale including discussion of the bump described by the Veteran, review of the file and records, and that the disability was age related. The VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It is further acknowledged that the Veteran and his spouse believe the Veteran's left shoulder disability is related to service. The Veteran and his spouse in this case are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the body, anatomical relationships, pathology, and interpretation of diagnostic medical testing. Therefore, it is outside the competence of the Veteran and his spouse in this case because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative
related to service. The Veteran and his spouse in this case are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the body, anatomical relationships, pathology, and interpretation of diagnostic medical testing. Therefore, it is outside the competence of the Veteran and his spouse in this case because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examination and service connection for a left shoulder disability is denied.

2. Entitlement to a TDIU.

The Veteran seeks a TDIU indicating in February 2018 correspondence that he retired early from the Postal Service due to his right foot condition.

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).

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 the Veteran is 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).

Prior to April 27, 2021, the Veteran was in receipt of service connection for fracture, great right toe, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and right achilles tendonitis, rated as 10 percent disabling. The Veteran's combined disability rating was 40 percent. Thus, the preliminary schedular rating requirements for a TDIU prior to April 27, 2021, are not met. Therefore, any award of TDIU would have to be on an extraschedular basis. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b
, the Veteran was in receipt of service connection for fracture, great right toe, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and right achilles tendonitis, rated as 10 percent disabling. The Veteran's combined disability rating was 40 percent. Thus, the preliminary schedular rating requirements for a TDIU prior to April 27, 2021, are not met. Therefore, any award of TDIU would have to be on an extraschedular basis. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b).

From April 27, 2021, the Veteran is in receipt of service connected benefits for fracture, great right toe, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; right achilles tendonitis, rated as 10 percent disabling; bilateral hearing loss, rated as 70 percent disabling; and insomnia disorder and unspecified depressive disorder with anxious distress associated with tinnitus, rated as 50 percent disabling. The Veteran's combined disability rating is 80 percent. Thus, the preliminary schedular rating requirements for a TDIU are met from April 27, 2021. 38 C.F.R. § 4.16 (a).

The process for establishing entitlement to an extraschedular TDIU rating is described in 38 C.F.R. § 4.16 (b). That process requires first an adjudicative determination that the Veteran is rendered unemployable by virtue of service-connected disabilities, and if that determination is affirmative, followed by referral to the Director, Compensation System.

Therefore, the Board will address whether the issue of TDIU should be referred to the Director, Compensation System, prior to April 27, 2021, and whether the Veteran warranted TDIU based on meeting the schedular requirements from April 27, 2021.

For the reasons that follow, the Board finds that a TDIU is not warranted.

In March 2010 the Veteran was noted to be intermittently incapacitated to work due to chronic right foot pain. In November 2013 the Veteran was noted to be injured while delivering mail. Thereafter, the Veteran was reported to be employed by Postal Service. See VA Treatment,November 2017. In February 2018 the Veteran reported that he voluntarily retired early because of the constant, extreme right foot pain and swelling while delivering mail for the Postal Service.

VA examinations have identified that the Veteran's disability impact his ability to work.

In December 2013 the Veteran's foot disability impacted his ability to work due to pain and difficulty standing and walking for extended periods of time during flare-ups. In November 2016 the Veteran's foot disability was noted to impact his ability to work by causing inability to stand/ambulate for extended periods. He was a postal worker and lost 1 to 2 weeks time in the prior 12 months. In March 2018 the Veteran's foot was noted to impact his ability to work. The Veteran was reported to be retired. However, he was noted to lose 0 to 1 week of work time in the prior 12 months. He stated that he cannot walk long distances or carry heavy objects because of foot pain. See VA Examination, March 2018. In a December 2019 VA foot examination the Veteran's prior employment was noted to be for the Postal Service. He lost 0 to 1 week work time in the prior 12 months. The disabilities caused difficulty standing, walking or sleeping. He was limited in running, jumping, and high impact activities. The Veteran was unable to lift or carry heavy weights. The examiner further noted that pain from the condition makes him irritable and had difficulty interacting with others.

In March 2018 the Veteran's ankle disability was noted to impact his ability to work. The Veteran was noted to be retired. However, he was found to have lost 0 to 1 week of work time in prior 12 months. The Veteran reported that when he is standing up on his feet, the pain is unbearable even with using the cane. His ankle will hurt even if he is sitting down or laying down in bed. In September 2018 it was noted that the Veteran's ankle disability caused limitation when working jobs that required strenuous physical activity such as prolonged walking, jumping, running, and climbing. See VA Examination, September 2018. Subsequently, in October 2020, the disability was noted to impact the ability to work by limiting prolonged ambulation, prolonged standing, running, jumping, and high impact activities. See VA Examination, October 2020.

The hearing loss disability impacts his ability to work indicating that it causes frustration, people have to tap him
reported that when he is standing up on his feet, the pain is unbearable even with using the cane. His ankle will hurt even if he is sitting down or laying down in bed. In September 2018 it was noted that the Veteran's ankle disability caused limitation when working jobs that required strenuous physical activity such as prolonged walking, jumping, running, and climbing. See VA Examination, September 2018. Subsequently, in October 2020, the disability was noted to impact the ability to work by limiting prolonged ambulation, prolonged standing, running, jumping, and high impact activities. See VA Examination, October 2020.

The hearing loss disability impacts his ability to work indicating that it causes frustration, people have to tap him on the shoulder to get his attention, the television has to be loud, cannot hear the doorbell, talking loud on the telephone . See VA Examinations, November 2016, June 2019, and May 2021 .

Attempts have been made to obtain additional information from the Veteran regarding his employment history, educational history, and income information. In the most recent Board remand dated in September 2021, the Veteran was advised that, while failure to complete the forms, including VA Form 21-8940, is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history, and income information necessary to properly address a claim for TDIU. The Veteran was further informed that he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thereafter, in October 2021 the Veteran was again asked to complete a VA Form 21-8940. To date the Veteran has not responded.

Overall, the Board finds that TDIU should not be referred for extraschedular evaluation prior to April 27, 2021, and is also not warranted on a schedular basis from April 27, 2021.

Although the Veteran's service-connected disabilities impact his ability to work, the weight of the evidence is against a finding that they render the Veteran unemployable. The Veteran has not responded to requests for information regarding his employment, educational, or income history. However, review of the claims file indicates that the Veteran retired early from work at the Postal Service due to service-connected disability. The Veteran indicates that this retirement was voluntary and there is no indication that the Veteran is otherwise unemployable due to his service-connected disabilities. Therefore, the Board finds that the Veteran's service-connected disabilities do not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history.

In summary, the record simply does not show or suggest that the Veteran was by virtue of his service-connected disabilities, rendered incapable of participating in any substantially gainful employment. Accordingly, prior to April 27, 2021, referral of his claim to the Director, Compensation Service for consideration of such rating is not warranted. Additionally, from April 27, 2021, the Board finds based on the evidence that the Veteran was not precluded from obtaining or maintaining substantially gainful employment. Therefore, TDIU is not warranted.

Saudiee Brown

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Robert J. Burriesci, 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.

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