Citation Nr: 18143275 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 09-30 489 DATE: October 18, 2018 ORDER A total disability rating based on individual unemployability is granted, effective March 9, 2016. A total disability rating based on individual unemployability is granted on an extraschedular basis, effective March 17, 2006. VETERAN’S CONTENTIONS The Veteran contends that his service-connected disabilities of the right elbow prevent him from securing or following a substantially gainful occupation. Specifically, he asserts that his disabilities prevent him from performing almost any lifting or carrying, as well as typical tasks of sedentary employment such as typing or writing. FINDING OF FACT Since March 17, 2006, the Veteran has been unable to secure or follow a substantially gainful occupation as the result of his service-connected disabilities. See May 2006 Social Security Administration Disability Report; October 2007 Private Physician Letter; VA Examinations dated April 2011, July 2017; May 2018 Vocational Opinion; but see March 2006 VA Treatment Record. CONCLUSIONS OF LAW 1. The schedular criteria for a total disability rating based on individual unemployability are met from March 9, 2016. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16. 2. The criteria for a total disability rating based on individual unemployability on an extraschedular basis are met from March 17, 2006. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the Navy from November 1986 to September 1994. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In August 2015, the Board remanded the claim for a total disability rating based on individual unemployability (TDIU) to obtain VA and private treatment records, a new VA examination, and a vocational opinion or VA social and industrial survey. VA treatment records were obtained by the Agency of Original Jurisdiction (AOJ) in November 2015 and updated private treatment records in December 2015. A VA examination and opinion was obtained in July 2017 and a vocational opinion in June 2018. There is no evidence that additional examinations are in order or that any relevant records have yet to be requested. Thus, there has been substantial compliance with the Board’s prior remand instructions, and an additional remand is not necessary. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Entitlement to a TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Here, the Veteran has had a combined disability rating of 70 percent since March 9, 2016, with two disabilities rated at least 40 percent disabling, namely right elbow arthritis with impairment of supination and right ulnar neuralgia. Therefore, the percentage requirement is met in this case. The remaining issue is whether the Veteran’s service-connected disabilities have precluded him from securing and following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran’s service-connected disabilities alone were of sufficient severity to produce unemployability, taking into consideration the Veteran’s education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Before he ceased working in March 2006, the Veteran was employed for three months as a grocery stocker, and before that as a hardware clerk and security officer throughout most of 2005. He has also worked as a certified nurse assistant, an insulation installer, and an airplane refueling crewman. All of these jobs involved repetitive motions of lifting with his hands. In a May 2006 Social Security Administration disability report, the Veteran stated that he had been unable to work since March 17, 2006, partly due to his elbow disabilities and to impairment he experienced from medication he was prescribed for them. A March 2006 VA treatment record indicates that the Veteran sought treatment at that time for right ulnar neuropathy. However, the record indicates that the Veteran was cleared to return to work after five days of treatment. Nevertheless, medical evidence throughout the rest of the claim period supports the Veteran’s contention that he has been unable to work due to his service-connected disabilities. In October 2007, a private physician opined that the Veteran was incapable of heavy, medium, or light work, and capable only of part time (four hours per day) sedentary work: “waiting, typing, computer use—only 15 min. 2x/day.” In April 2011 a VA examiner opined that the Veteran’s right elbow arthritis had significant effects on his usual occupation, namely: “decreased manual dexterity, problems with lifting and carrying, decreased upper extremity strength, [and] pain.” In July 2017, a VA examiner opined that the Veteran was unable to work with his right upper extremity—his dominant arm and hand. The examiner stated that the Veteran “has major disability with respect to his right forearm and right hand due to the above. This, combined with the right ulnar nerve dysfunction and neuralgia, has caused a major limitation to this patient, especially in light of the fact that this is his dominant arm and hand.” Finally, in May 2018, the RO obtained a vocational opinion, in compliance with the August 2015 Board remand. The author of the opinion stated: “[the Veteran] should avoid activities that require any repetitive use of the right upper extremity. He can, with a single lift, handle 5 pounds but not repetitively. He should also avoid any heavy pushing or pulling activities. He also needs to avoid any torqueing activities across the elbow such as using hand tools, screwdrivers, wrenches, etc. “The ulnar neuropathy has resulted in weakness in the right upper extremity and is the reason for the limitation on lifting[. . .]. The weakness makes it difficult for him to lift any significant weight as the ulnar nerve is involved with use of the hand as well as wrist. The ulnar neuropathy will also make it difficult for him to do repetitive activities that require fine motor skills like typing and data entry.” In sum, the Veteran has consistently averred since March 2006 that his elbow disabilities have prevented him from securing or following a substantially gainful occupation. Although medical evidence from March 2006 appears to contradict the Veteran’s statement, subsequent medical evidence from throughout the claim period consistently indicates that the Veteran has experienced significant disability of the right (dominant) elbow, rendering his right upper extremity nearly useless for occupational tasks. The Board has the responsibility to interpret medical examinations in light of the entirety of the record, and to reconcile various examinations into a consistent disability picture. 38 C.F.R. § 4.2. In order to reconcile the March 2006 VA treatment record with the entirety of the record, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities since he ceased working on March 17, 2006. See 38 C.F.R. § 4.3. Further, as noted above, the Veteran is statutorily eligible for a TDIU from March 9, 2016. Therefore, a TDIU is warranted on a schedular basis from that date. Entitlement to a TDIU on an Extraschedular Basis Although the Veteran’s disabilities do not meet the required minimum ratings before March 9, 2016, “[i]t is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” 38 C.F.R. § 4.16(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. (Continued on the next page)   As discussed more fully in the previous section, the Veteran has consistently averred since March 2006 that his elbow disabilities have prevented him from working. Although his statements are in tension with the March 2006 contemporaneous medical record, the clinical evidence on the whole supports the Board’s finding that he was unable to obtain and maintain substantially gainful employment as a result of his right elbow disabilities beginning in March 2006. The Veteran is competent to report his employment situation and the reasons for his inability to work, and the Board finds him credible. Therefore, reconciling the entirety of the medical evidence of record and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities since he ceased working on March 17, 2006. See 38 C.F.R. § 4.2, 4.3. Accordingly, a TDIU is warranted from that date on an extraschedular basis. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel