Citation Nr: 20051069 Decision Date: 10/15/20 Archive Date: 10/15/20 DOCKET NO. 19-29 487 DATE: October 15, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 10 percent for carpal tunnel syndrome of the left hand and arm is remanded. Entitlement to a rating in excess of 30 percent for carpel tunnel syndrome of the right hand and arm is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the evidence demonstrates that the Veteran’s service-connected disabilities preclude her from securing and following any substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1990 to March 1995. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. This decision has been prepared under the Board’s “one-touch” program. A transcript of the hearing has not yet been associated with the claims file, but will be in the future during the normal course of business. Entitlement to a TDIU The Veteran asserts that her service-connected disabilities prevent her from securing and following any substantially gainful employment. As discussed below, the Board finds that resolving all reasonable doubt in favor of the Veteran, a TDIU is warranted. It is the established policy of VA 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. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him or her incapable of substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A substantially gainful occupation has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a “living wage.” Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the Census Bureau. 38 C.F.R. § 4.16(a). When jobs are not realistically within his or her physical and mental capabilities, a Veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to age or any 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). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the conclusions of VA examiners are not dispositive. However, the observations of the examiners regarding functional impairment due to service-connected disability go to the question of physical or mental limitations that may impact the Veteran’s ability to obtain and maintain employment. The Veteran is currently service-connected for bilateral pes planus with plantar fasciitis and chronic plantar strain (rated 50 percent disabling); migraine headaches (rated 30 percent disabling); depressive disorder (rated 30 percent disabling); carpel tunnel syndrome of the right hand and arm (rated 30 percent disabling); and carpel tunnel syndrome of the left hand and arm (rated 10 percent disabling). The Veteran’s combined disability rating is 90 percent. See 38 C.F.R. § 4.25, Combined Ratings Table. From November 27, 2017, the Veteran has two or more service-connected disabilities, with one disability rated at 40 percent or higher, and a combined rating of at least 70 percent. As such, the Board finds that the Veteran meets the percentage requirements under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU. The question remaining before the Board is whether the Veteran is precluded from obtaining or maintaining a substantially gainful occupation as a result of her service-connected disabilities. At the May 2020 Board hearing, the Veteran testified that she last worked in a factory as a quality inspector. She stated that it became increasingly difficult for her to do her job because the pain in her feet and hands prevented her from any prolonged walking on the factory floor or completing sewing tasks. The Veteran reported that she frequently had to cut her shifts short because she was unable to tolerate the pain for an entire eight-hour shift and that this caused problems with her supervisor. As a result, the Veteran quit her job in September 2017. The Veteran testified that she experiences pain, cramping, and tingling in her hands from carpel tunnel syndrome that impacts her ability to perform tasks that require fine motor skills, such as writing a note, fastening buttons, brushing her hair, tying her shoelaces, and sewing. She also reported that she is no longer able to drive a car because of the pain in her hands and feet. The Veteran further testified that she experiences migraine headaches two to three times per week with blurred vision and nausea that last between 24 and 48 hours. She is unable to take medication for these headaches because of high blood pressure, so she treats them by resting in a dark room. Finally, the Veteran endorsed feelings of depression, isolation, and occasional suicidal ideation due to the effects of her service-connected disabilities. In February 2018, the Veteran underwent a VA peripheral nerves examination for her carpel tunnel syndrome and a VA foot conditions examination for her pes planus and plantar fasciitis. The VA examiner determined that the Veteran’s hand and foot disabilities impact her ability to work by preventing her from performing extensive repetitive motion or gripping with her hands or prolonged walking or standing. The same VA examiner also provided a medical opinion with regard to unemployability, noting that the Veteran’s hand and foot disabilities would not limit sedentary employment. However, the Board notes that the examiner’s opinion did not consider the functional impacts of the Veteran’s other service-connected disabilities of migraine headaches and depressive disorder on her employability. At a December 2019 VA foot conditions examination, a VA examiner noted that, due to her bilateral foot disability, the Veteran “cannot drive or stand for more than very short periods which severely affects physical and sedentary occupational functionality.” In light of the above, the Board finds that there is ample competent medical and lay evidence of record indicating that the Veteran’s service-connected disabilities prevent her from performing even sedentary work for the length of time required to earn a living wage. In this regard, the Veteran’s bilateral carpel tunnel syndrome and bilateral pes planus and plantar fasciitis cause significant functional and physical impairments, which limit her ability to perform tasks requiring fine motor skills or repetitive motion of the hands or even minimal walking, standing, or driving. Moreover, her frequent headaches and depressive symptoms further impede her ability to maintain gainful employment by causing frequent absences. Therefore, the Board finds that the evidence is at least in equipoise that the Veteran’s service-connected disabilities preclude her from securing or following any substantially gainful employment. Accordingly, the Board finds that resolving all reasonable doubt in favor of the Veteran, entitlement to a TDIU is warranted. The Veteran’s appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development of the Veteran’s remaining claims is necessary prior to appellate review. 1. Entitlement to a rating in excess of 10 percent for carpal tunnel syndrome of the left hand and arm is remanded. 2. Entitlement to a rating in excess of 30 percent for carpel tunnel syndrome of the right hand and arm is remanded. The Veteran was last afforded a VA examination for her service-connected bilateral carpel tunnel syndrome in February 2018. At the May 2020 Board hearing, the Veteran testified as to experiencing symptoms more severe than those endorsed on examination in February 2018. The Board notes that a new examination is appropriate when there is an assertion of an increase in severity of symptoms since the last examination. Therefore, remand is warranted to afford the Veteran a new VA examination to assess the current severity of her carpel tunnel syndrome. See 38 C.F.R. § 3.159; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) The matters are REMANDED for the following actions: 1. Update VA treatment records. 2. Then, schedule the Veteran for a VA examination to fully assess the current severity of her service-connected bilateral carpel tunnel syndrome. The claims file must be made available to the examiner and reviewed in full. After examining the Veteran and conducting any studies and/or tests deemed necessary, the examiner should fully describe all symptomatology and functional deficits associated with the Veteran’s carpel tunnel syndrome. In this regard, the appropriate disability benefits questionnaire (DBQ) for peripheral nerves conditions should be completed. The Veteran’s lay statements regarding symptomology must be recorded and taken into consideration. Any opinion offered must be accompanied by a complete medical rationale. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, Associate 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.