Citation Nr: 18158563 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-41 680 DATE: December 17, 2018 ORDER The claim for entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) is granted, effective December 16, 2014. FINDINGS OF FACT 1.Prior to October 27, 2015, service connection was in effect for degenerative joint disease, right hand, with chronic strain/sprain of fingers and thumb, evaluated as 50 percent disabling; tinnitus, evaluated as 10 percent disabling; osteoarthritis, right hip with trochanteric pain syndrome based on limitation of flexion, evaluated as 10 percent disabling; bilateral hearing loss, evaluated as 10 percent disabling; osteoarthritis, right hip with trochanteric pain syndrome based on limitation of extension, evaluated as noncompensable; osteoarthritis, right hip with trochanteric pain syndrome based on impairment of the thigh, evaluated as noncompensable; and residual scar, status-post right hip arthroscopy with metal fragment excision, evaluated as noncompensable; the combined disability evaluation was 60 percent. 2.The Veteran has not worked full-time since November 2006; he has a GED and work experience as a heavy equipment operator. 3.Effective December 16, 2014, the Veteran’s service-connected disabilities were of such a nature or severity as to prevent him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDI, on an extraschedular basis, are met effective December 26, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1973 to December 1976. A February 2018 rating decision granted service connection for, among other disabilities, lumbar spine degenerative disc disease, effective October 27, 2015. The evaluation was 20 percent. The rating decision also granted TDIU, effective October 27, 2015. In the May 2018 remand, the Board observed that the Veteran had applied for an increased evaluation for hearing loss in December 2014, and therefore the issue of entitlement to TDIU, prior to October 27, 2015, remained on appeal. The issue is now before the Board for final appellate consideration. Prior to October 27, 2015, service connection was in effect for degenerative joint disease, right hand, with chronic strain/sprain of fingers and thumb, evaluated as 50 percent disabling; tinnitus, evaluated as 10 percent disabling; osteoarthritis, right hip with trochanteric pain syndrome based on limitation of flexion, evaluated as 10 percent disabling; bilateral hearing loss, evaluated as 10 percent disabling; osteoarthritis, right hip with trochanteric pain syndrome based on limitation of extension, evaluated as noncompensable; osteoarthritis, right hip with trochanteric pain syndrome based on impairment of the thigh, evaluated as noncompensable; and residual scar, status-post right hip arthroscopy with metal fragment excision, evaluated as noncompensable. The combined disability evaluation was 60 percent. The Veteran did not meet the schedular requirements for a TDIU. 38 C.F.R. § 4.16 (a). The question is whether the Veteran is entitled to an extraschedular TDIU, prior to October 27, 2015. The Board finds that he is so entitled, effective December 16, 2014, the date of his claim for an increased evaluation for hearing loss. Consideration has been given to the Veteran’s level of education, special training, and previous work experience in arriving at this conclusion. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). On a VA Form 21-8940, Application for TDIU, submitted in October 2015, the Veteran reported that he last worked in November 2006, as a heavy equipment operator, and stopped working because of his hip, back and right hand. He reported having a GED. He stated that he could not sit for more than 20 minutes without having to get up and walk for a few minutes. He could not grip equipment controls with his right hand. He could not stand for more than a few minutes. The Veteran contends that his right hip and hand disabilities prevented him from working even before service connection was granted for a back disability. During an August 2017 hearing before the undersigned, he stated that that his right hip and right hand disabilities prevented him from doing construction work, which he was limited to because of his education. The Veteran stated that his hand froze up after four or five minutes of work, so he could not run a machine. The Veteran explained that his job as a heavy equipment operator was very physical. He had to climb up into the machines, which were excavators, dozers and blades. He said that sitting in the machine all day “beats you up.” He could not sit in the machine anymore and had to quit his last job. As for sedentary employment, the Veteran’s hip prevented him from sitting for long periods. His right hand prevented him from typing. He said that he was right-handed and could hold a fork and write for a few minutes with that right hand. Otherwise had had to learn to use his left hand. Even taking a bath took a while. The Board finds the Veteran’s statements as to the effects of his reported symptoms competent and credible and they support his claim. See Falzone v. Brown, 8 Vet. App. 398 (1995); Layno v. Brown, 6 Vet. App. 465 (1994). Pursuant to the Board’s remand, the AMO submitted the case to the Director of Compensation Service for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16 (b). In September 2018, the Director of Compensation Service (Director) noted that the Veteran had claimed a TDIU citing right hip, hand and forearm, as well as breathing, lower back and hearing loss as the reason he stopped working in November 2006 as an operator of heavy equipment. The Director reviewed the Veteran’s medical records, as well as VA examinations in October 2006 and August 2015. The director concluded that based on the totality of the evidence, extraschedular entitlement to TDIU prior to October 27, 2015, was not shown exclusively to service-connected disabilities. The report of an October 2006 VA examination of the Veteran's right hand notes that the Veteran had pain with fine motor movement such as writing, and with grip and pinch. The Veteran's symptoms were pain, limited motion, swelling, locking, weakness and stiffness. The Veteran had right hand limitation of motion with pain on examination. The disability’s impact on occupational activities included decreased manual dexterity, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength of the upper extremity, and pain. The Veteran could not work a full day as a heavy equipment operator due to pain and swelling. The report of an August 2015 hearing loss and tinnitus examination relates that the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work. The Veteran explained that he could not hear rattle snakes, which was important where he lived. He felt he could not hear sirens while driving, he turned up the TV too loud and had to use TV ears to hear, and felt like he could not hear high frequency sounds. The report of an August 2015 hip and thigh examination relates that the Veteran's right hip disability impacted his ability to perform any type of occupational task, such as standing, walking, lifting, sitting, etc. Due to the hip condition, there would be limitation in standing and walking, probably to less than 30 minutes at a time, and activities involving more hip motion, such as squatting, kneeling, crawling and climbing would be limited to less than two hours a day. The foregoing evidence demonstrates that the impairment caused by the Veteran’s service-connected right-hand disability, right thigh disability and hearing loss precluded him from securing and following substantially gainful employment even prior to the grant of service connection for a back disability effective October 27, 2015. The evidence shows that the Veteran’s disabilities rendered him unable to work as a heavy equipment operator or in a sedentary job; employment consistent with his education and work history. As a result, an extraschedular TDIU is warranted from December 16, 2014, the date of the Veteran's claim for an increased evaluation for hearing loss. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Davitian, Counsel