Citation Nr: 21000150 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 07-35 709 DATE: January 4, 2021 ORDER A total disability rating based on individual unemployability (TDIU) on an extraschedular basis from July 31, 2006 to September 4, 2017 is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected right wrist disability from July 31, 2006 to March 25, 2012 and the combined effects of all of his service-connected disabilities from March 26, 2012 to September 4, 2017. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis from July 31, 2006 to September 4, 2017 are met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16(a) and (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1967 to March 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2006 Regional Office (RO) rating decision. In that rating decision, the RO denied a disability rating in excess of 10 percent for status-post surgery due to previous fracture of the right wrist with traumatic arthritis (major). Thereafter, the RO granted a separate 10 percent disability rating for right carpal tunnel syndrome effective July 31, 2006 in a September 2007 rating decision. The issue of entitlement to a TDIU was raised as part of the Veteran’s increased rating claim for a right wrist disorder and then expanded to include all other service-connected disabilities when the Veteran submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in March 2012. The Veteran’s notice of disagreement (NOD) was received in March 2007. The RO issued a statement of the case (SOC) in September 2007. The Veteran’s VA Form 9, substantive appeal to the Board, was received in October 2007. In July 2011, April 2015, April 2016, February 2017, and December 2018, the Board remanded the case to the RO for further development and adjudicative action. Entitlement to a TDIU on an extraschedular basis prior to September 5, 2017. As noted above, the issue of entitlement to a TDIU was raised as part of the Veteran’s increased rating claim for service-connected right wrist disabilities that the RO received on July 31, 2006. Thereafter, the RO received the Veteran’s VA Form 21-8940 on March 26, 2012 claiming that his service-connected right wrist/hand and PTSD prevent him from securing or following any substantially gainful occupation. 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a), a veteran is not required to submit proof that he is 100 percent unemployable. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). Instead, the regulations contemplate more flexibility in the employability determination. Id. 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 he or she 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. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. The Veteran’s service-connected disabilities from July 31, 2006 to September 4, 2017 are as follows: posttraumatic stress disorder, evaluated as 30 percent disabling from October 15, 2007 and 50 percent from May 8, 2008; right carpal tunnel syndrome with ulnar nerve involvement, evaluated as 10 percent disabling from July 31, 2006; status post arthroscopy surgery due to previous fracture of right wrist with traumatic arthritis (major), evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling from October 15, 2007; bilateral inguinal hernia repair, evaluated as noncompensable; ventral hernia repair, evaluated as noncompensable; and bilateral hearing loss, evaluated as noncompensable from October 15, 2007. The combined evaluation for compensation was 20 percent from July 31, 2006 to October 14, 2007, 50 percent from October 15, 2007 to May 7, 2008, and 60 percent from May 8, 2008 to September 4, 2017. Thus, the Veteran did not meet the schedular criteria for an award of TDIU pursuant to the provisions of 38 C.F.R. § 4.16(a) prior to September 5, 2017. However, under 38 C.F.R. § 4.16(b), the Veteran may be awarded TDIU if it is established by the evidence of record that his service-connected disability has rendered him unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director, Compensation Service for extra-schedular consideration. 38 C.F.R. §§ 3.340(a), 3.341(a) and 4.16(b). In an August 2020 Advisory Opinion, Director, Compensation Service determined that the preponderance of the evidence of record does not indicate that the Veteran was unable to pursue or follow gainful employment, both physical and sedentary, due solely to the service-connected conditions prior to September 5, 2017. Therefore, the question of whether the Veteran is entitled to a TDIU on an extraschedular basis for his service-connected disabilities has first been adjudicated by the Director, Compensation Service, and the Board may now proceed to evaluate the merits of the appeal. See Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009) (the Board has jurisdiction to review determinations of the Director regarding a veteran’s entitlement to an extraschedular rating). The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. In this case, the collective evidence suggests that the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation throughout the appeal period. The evidence shows that the Veteran was unemployed throughout the relevant appeal period. In a July 2006 informal claim, the Veteran noted that his right wrist was having a detrimental effect on his job and his employed had sent him home with instructions to bring back a release to work from a doctor. The Veteran asserts that he was unable to use his hand to function in his job as a diesel mechanic. See October 2007 substantive appeal. He asserts that he had to retire in 2006 due to his service-connected right wrist disability. The Veteran further contends that his service-connected right wrist/hand disability and PTSD prevents him from securing or following any substantially gainful occupation. See March 2012 VA Form 21-8940. The Veteran reported that the last date he worked full time was June 21, 2006 and he left his last job in watercraft because of his disability. Id. He stated that he worked in watercraft from 1979 to 2006. The Veteran has a high school diploma and attended one year of college. He attended a tech school for auto body from 1969 to 1971. The Veteran’s employer submitted a written statement that the Veteran had an issue with the use of his right wrist. He saw the Veteran in a great deal of pain on many occasions and it caused him to miss work and affected his ability to do his job. The employer noted that the Veteran worked as a supervisor of maintenance for the company from December 1990 to November 2006. Turning to the medical evidence of record, an August 2006 VA examination of the right wrist shows that the Veteran reported constant right wrist pain at a level of five out of ten. The pain was worse in the morning at a level of an eight or nine out of ten. There was swelling and decreased range of motion of the right wrist. His usual occupation was boat mechanic. He had worked since April 2006 until one week ago. The effect of his right wrist disability on the Veteran’s usual occupation was that he could not pull hard enough to take a bolt out of a starter or alternator and he could not remove a transmission. He was unable to lift over three pounds. Physical examination of the right wrist showed significant reduction in range of motion. Right wrist dorsiflexion was from zero to 22 degrees (normal range for wrist dorsiflexion is zero to 70 degrees) and palmer flexion from zero to eight degrees (normal range of palmer flexion is from zero to 80 degrees). A March 2007 VA treatment record documents that the nerve conduction velocity tests in 2005 and 2006 showed mild carpal tunnel syndrome. Examination revealed no pinprick loss, but there was mild weakness and minimal atrophy in the distribution of the right median nerve. A November 2007 Vocational Rehabilitation Counseling Record reveals that the Veteran had a combined VA rating of 20 percent and is restricted in his ability to use the right hand. This included twisting, turning, gripping, lifting, carrying, writing, using a keyboard or virtually any movement. His right wrist disabilities also restrict his ability with driving. The Veteran reported that there was incomplete paralysis of the right hand and he took anti-inflammatories and a narcotic pain killer. Pain extended from his hand up into his forearm on an occasional basis. The Rehabilitation Counselor determined that the Veteran’s service-connected disabilities placed the Veteran at an employment disadvantage compared to similarly circumstanced veterans. The effects of the Veteran’s impairment caused by his service-connected disabilities contributed in an identifiable, measurable, or observable way to the Veteran’s ability to obtain, maintain, and retain work that is consistent with his abilities, attitude, and interests. the Veteran had not overcome his impairment and he was found to have a serious employment handicap. The Rehabilitation Counselor concluded that it was uncertain if it was feasible for the Veteran to pursue a vocational goal due to the Veteran’s service-connected right wrist disability. An August 2013 VA examination of the right wrist reveals that the Veteran reported increasing pain and stiffness in the wrist. He is right hand dominant. Flare-ups did not impact the function of the wrist. Right wrist plantar flexion was to 45 degrees and right wrist dorsiflexion was to 50 degrees. There was evidence of less movement than normal, excess fatigability, pain on movement, swelling, and atrophy of disuse. Muscle strength testing of the wrist was normal. The examiner determined that the Veteran’s wrist disability did not impact his ability to work. An August 2013 VA examination of carpal tunnel syndrome of the right wrist shows that muscle strength testing was normal. There was no evidence of muscle atrophy. Deep tendon reflexes were normal. Sensory examination was normal. The upper right extremity nerves and radicular groups were normal. The examiner determined that the Veteran’s peripheral nerve condition did not impact his ability to work. A September 2013 VA PTSD examination reveals that the Veteran was married, but he lived alone as his wife was in a nursing home. He has two children and they are close to him. The Veteran stays home most of the time. He has some friends and he would occasionally socialize with them. The Veteran reported that his wrist prevented him from restoring cars. He stated that he retired in November 2006 due to right wrist pain and hand weakness. He was a diesel mechanic, but his main job was supervising a boat maintenance facility in Tampa for about 30 years. He was forced to retire as his wrist got bad and he could not do the work anymore. The Veteran’s PTSD symptoms included the following: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), and impaired impulse control. The Veteran was capable of managing his or her financial affairs. After reviewing the Veteran’s history, as well as VA treatment records regarding his PTSD treatment, the examiner determined that the Veteran’s level of PTSD should not prevent the Veteran from working. An April 2016 VA examination of the right wrist shows that the Veteran experienced swelling, pain and reduced range of motion with using his right hand/wrist. Range of motion of the right wrist was normal. Pain was noted on examination, but the pain did not result in or cause functional loss. There was evidence of pain on weight-bearing. Right wrist muscle strength was four out of five on flexion and four out of five on extension. The Veteran did not have muscle atrophy. The examiner determined that the Veteran’s right wrist disability impacts his ability to perform any type of occupation task. The examiner explained that pain and range of motion became worse with using his hand. An April 2016 VA examination of right wrist carpal tunnel syndrome reveals that it resolved after surgery. Muscle strength testing was normal. There was no evidence of muscle atrophy. Deep tendon reflexes were normal. Sensory examination was normal. The upper right extremity nerves and radicular groups were normal. The examiner determined that the Veteran’s right carpal tunnel syndrome impacts his ability to perform any type of occupation task. The examiner explained that pain and range of motion became worse with using his hand. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014) and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). However, as a medical examiner is responsible for providing a full description of the functional effects of disability upon a person’s ordinary activity (see 38 C.F.R. § 4.10), and has done so here. The findings, comments and opinions of the VA examiners have appropriately been considered as pertinent evidence, along with the Veteran’s competent assertions, in determining whether he is able to perform the acts required for substantially gainful employment. Based on the foregoing, the Board finds that the overall evidence of record indicates that Veteran would be unable to maintain employment due to his service-connected right wrist disability from July 31, 2006 to March 25, 2012 and the combined effects of all of his service-connected disabilities from March 26, 2012 to September 4, 2017. Specifically, the medical and lay evidence prior to March 26, 2012 shows that the Veteran’s service-connected right wrist disability and carpal tunnel syndrome resulted in the Veteran being unable to work in physical and sedentary employment. In July 2006, the Veteran indicated that his right wrist symptoms resulted in almost a complete loss of function of his dominant hand. The August 2006 VA examination supported that assertion as it revealed significant reduced range of motion dorsiflexion and plantar flexion of the right wrist. The Veteran reported at the examination that he could not pull hard enough to take a bolt out of a starter or alternator. He also was unable to remove a transmission or lift over three pounds. In November 2007, a Vocational Rehabilitation Counselor determined that the Veteran’s service-connected right wrist disabilities imposed the following restrictions on the Veteran’s ability to use the right hand in terms of twisting, turning, gripping, lifting, carrying, writing, using a keyboard or virtually any movement. His right wrist disabilities also restricted his ability with driving. The July 2013 and April 2016 VA examinations of the right wrist indicate that there was some improvement in the range of motion of the right wrist since 2007 after an undated surgery for carpal tunnel syndrome. However, the medical evidence still reflects that the Veteran experienced reduced range of motion (particularly on use of the hand), excess fatigability, pain on movement, swelling, atrophy of disuse, and muscle weakness indicating that the Veteran would be unable to perform tasks that required hand/arm strength and dexterity. Therefore, the Veteran’s right wrist disability would significantly impact the Veteran’s ability to maintain substantially gainful employment that require physical or manual labor. In addition, with consideration of the Veteran’s PTSD symptoms as of March 26, 2012, the Veteran continued to be unable to sustain and maintain substantially gainful employment due to his service-connected disabilities based on his education, training, and work experience. The September 2013 VA examination and VA treatment records document that the Veteran’s symptoms of PTSD include anxiety, suspiciousness, difficulty sleeping, mild memory loss, and impaired impulse control. He prefers not to socialize much outside of his family and he avoids crowds. The Veteran’s anxiety, suspiciousness, mild memory loss, and impaired impulse control would make it difficult for the Veteran to work in an office like setting. Furthermore, the Veteran’s training and work history involved physical labor, specifically as a mechanic, indicating that he would not be considered suitable for a more sedentary position, such as working in an office. (Continued on the next page)   In light of the foregoing, the evidence is at least evenly balanced as to whether the Veteran is precluded by his service-connected right wrist disabilities from July 31, 2006 to March 25, 2012 and by the combined effects of all of his service-connected disabilities from March 26, 2012 to September 4, 2017 from obtaining and maintaining substantially gainful employment in occupations related to his education, training, and work experience. Resolving any reasonable doubt in favor of the Veteran, a TDIU on an extraschedular basis is warranted from July 31, 2006 to September 4, 2017. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.