Citation Nr: 1625414	
Decision Date: 06/23/16    Archive Date: 07/11/16

DOCKET NO.  97-27 712	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to a service-connected disability.


REPRESENTATION

Appellant represented by:	Sean Kendall, Esq.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W. Ripplinger, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1977 to March 1977 and from August 1980 to August 1982.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  Jurisdiction over the case is currently held by the RO in Winston-Salem, North Carolina.


FINDING OF FACT

The Veteran's service connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him.


CONCLUSION OF LAW

The criteria for an award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that TDIU is warranted in this case as he is unemployable due to his service-connected laceration of the right little finger with ankylosis and digital ulnar nerve involvement; residual painful scar of right little finger laceration surgeries; and donor site scars of the mid and proximal forearm associated with the laceration of his right little finger.  TDIU may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16.

If there is only one such disability, it must be rated at 60 percent or more; if there are two or more 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).  For the purposes of determining whether one 60 percent disability or one 40 percent disability exists, the following are considered one disability: 1) disabilities of both upper or lower extremities, including the application of the bilateral factor; 2) disabilities from a common etiology or a single accident; 3) disabilities affecting a single body system; 4) multiple injuries incurred in action; or 5) multiple injuries incurred as a prisoner of war.  38 C.F.R. § 4.16(a).

If these percentage requirements are not met but the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred to the Director of VA Compensation Service (Director) for extra-schedular consideration.  38 C.F.R. § 4.16(b).

Service connection is in effect for laceration of the right little finger with ankylosis and digital ulnar nerve involvement, rated as 40 percent disabling; residual painful scar of right little finger laceration surgeries, rated as 10 percent disabling; and donor site scars of the mid and proximal forearm associated with the laceration of his right little finger, with a noncompensable rating.  Even considering the disabilities as one, this rating does not meet the schedular requirements for TDIU.  A determination of entitlement to TDIU is therefore predicated on whether the evidence establishes that TDIU is warranted on an extraschedular basis, which requires consideration by the Director.  38 C.F.R. § 4.16.  The Director considered and denied an award of TDIU on an extraschedular basis in December 2015; consequently, the Board may now review the denial of an extraschedular TDIU.  Bowling v. Principi, 15 Vet. App. 1 (2001). 

The central inquiry in a claim for TDIU 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).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

The record establishes that the Veteran last worked full-time in August 2010, when he was employed as a maintenance laborer.  On an April 2012 VA Form 21-8940 he reported working in this occupation for 24 years and completing three years of high school, with no other training or technical expertise. 

After review of the evidence of record, the Board finds that the Veteran is unemployable due to his service-connected laceration of the right little finger with ankylosis and digital ulnar nerve involvement; residual painful scar of right little finger laceration surgeries; and donor site scars of the mid and proximal forearm because he is precluded from performing gainful employment for which his education and occupational experience would otherwise qualify him. 

The record contains evidence weighing against the Veteran's unemployability.  During the claims period, records from the Social Security Administration (SSA) and VA have found the Veteran capable of working.  In a May 2003 reconsideration decision, the SSA found the Veteran capable of returning to his job as a maintenance worker, relying in part on a February 2003 medical consult in which an orthopedic surgeon outlined different procedures which could allow the Veteran to continue working.  A May 2003 SSA physician also reported seeing no physical limitations in the Veteran's use of his hands when writing or looking for papers in his briefcase.  Similarly, a December 2006 VA medical examination, February 2007 clarifying opinion, and August 2008 VA medical examination found the Veteran could return to work on light duty with limited use of his right hand for weight-bearing or grip; they also found he could work at a desk job with similar limitations.  

On the other hand, other records demonstrate an inability to work.  In June 2011, the Veteran's employer deemed him disabled for his position as a custodial laborer because of "contracture of joint of the right hand" and offered him disability retirement.  May 2010 VA Medical Center records state that the Veteran has diminished sensation and 4/5 median/ulnar and wrist radial strength, but the Veteran does not use his right hand because of pain.  The July 2014 VA medical examiner found that the Veteran's disabilities "as likely as not" precluded him from securing and following substantially gainful employment, citing to the Veteran's inability to grip, lift, push, or pull more than 5 pounds with his right dominant hand.  This examination noted numbness in the Veteran's right 4th and 5th fingers, no muscle atrophy, and a grip of 3/5, corresponding to active movement against gravity.        

In a December 2015 administrative review for extra-schedular consideration, the Director considered this evidence and found that the Veteran's service-connected disabilities did not prevent employment.  The Director noted that the Veteran's disabilities did not equate to the loss of use of his hand, that the Veteran's numbness was moderate, and that he had grip strength in his right hand.

In contrast to the Director's decision, the Board finds that, in light of the Veteran's industrial and educational background and granting him the benefit of the doubt, the evidence of record establishes that his service-connected disabilities have rendered him unemployable.  The restrictions placed on the Veteran by his disabilities severely limit his employment options, especially when considering his background, which is limited to an eleventh grade education and prior work experience exclusively in maintenance.  In addition, the Veteran has reported difficulty writing with his right hand and typing on a computer, which would limit his ability to work at a sedentary position as suggested by VA examinations.  Thus, in consideration of all the evidence of record, the Board finds that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience.  Accordingly, TDIU is warranted.


ORDER

TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. .



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs