Citation Nr: 21002490 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-20 678 DATE: January 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT For the period on appeal, the Veteran’s service-connected disabilities have precluded him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1999 to March 2002 and June 2004 to June 2006. During his periods of service, the Veteran earned the Army Achievement Medal, National Defense Service Medal, Army Lapel Button, Army Commendation Medal, Noncommissioned Officer’s Professional Development Ribbon, Army Service Ribbon, Army Reserve Components Overseas Training Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar. Entitlement to a TDIU When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 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. § 3.34. In other words, VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, even where the veteran does not meet the schedular rating requirements, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, for veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), VA is to refer the claim to the to the Director of Compensation Service, for extraschedular consideration. The Veteran contends that his service-connected right shoulder impingement, status-post superior labrum anterior-posterior repair; cervical radiculopathy of the right arm; tinnitus; right shoulder surgical scars, associated with right shoulder impingement, status-post superior labrum anterior-posterior repair; and hearing loss prevented him from securing or following substantially gainful employment. As the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). Accordingly, pursuant to the January 2018 Board remand, the Veteran’s claim of entitlement to a TDIU was referred to the VA Director for Compensation Service for extraschedular consideration as required by the provisions of 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In July 2020, the Director determined the preponderance of the evidence did not support the contention that the Veteran’s service-connected disabilities resulted in occupational and social impairment with reduced reliability and productivity or worse. The Director also determined that the available evidence did not show marked interference with employment or frequent periods of hospitalization due to the Veteran’s service-connected disabilities. As the effects of the Veteran’s service-connected disabilities did not preclude gainful employment, including sedentary work activities, entitlement to TDIU on an extraschedular basis could not be established. See July 2020 VA Memo. However, the Board is not bound by this determination and shall conduct a de novo review of the claim. Wages, 27 Vet. App. at 238. The Board notes that the Veteran has not submitted a completed VA Form 21-8940 as of the date of this decision. However, the Board will gather educational and vocational history from the evidence of record, to include his Social Security Administration (SSA) and Vocational Rehabilitation and Employment (VR&E) records. A review of the record shows that the Veteran completed high school and attended college for nursing, though there is no evidence of completion of a degree. As of September 2013, the last period of employment noted in the record, the Veteran’s employment history consisted of work as a maintenance director. There is no evidence of any type of specialized training. The Veteran reported for VA examinations in October 2013. The examiner determined that the Veteran’s right shoulder impingement and right arm cervical radiculopathy impacted his ability to work. The examiner explained that the Veteran would not be able to tolerate physical labor because he was right-handed, and his shoulder would not allow it. The examiner noted that although the Veteran reported a feeling described as that of a spider crawling in the right arm forearm and hand, there was no evidence of atrophy and he had full strength with negative Tinel’s sign test at wrist and elbow. While he had decreased sensation in ulnar nerve distribution, the median nerve was normal. However, the examiner further noted that sedentary employment could be tolerated, as the Veteran was attending school and had not missed time. The Veteran again reported for VA examinations in June 2016. The Veteran reported that he last worked as the maintenance director at a residential facility for Alzheimer’s patients in 2010. He reported that he had to stop working due to his shoulder. The examiner opined that the Veteran’s right arm condition would significantly impact his ability to perform any type of occupational task that involved working overhead, lifting his right arm beyond 90 degrees, and repetitive lifting. The examiner further opined that the Veteran would not likely find gainful employment beyond sedentary desk type work because of his right arm condition. The Veteran testified at a Board hearing in June 2017. He indicated that it became difficult to work, as he had to begin using his left hand as his dominant hand. The Veteran also reported that his medications caused him to oversleep, with created problems with his employment. The Veteran further stated that he had been attending school in an attempt to earn a nursing degree; however, the pain in his shoulder affected his sleep patterns. As he was not resting properly and could not concentrate, he had to withdraw from his courses. Here, the Board finds that the evidence for and against the Veteran’s claim is at least in equipoise. The Veteran’s service-connected disabilities, to include right shoulder impingement and right arm cervical radiculopathy, interfere with his ability to perform physical employment tasks. Although the medical evidence of record notes that the Veteran is able to perform sedentary desk type work, his employment history consists exclusively of work that requires the ability to perform physical tasks and his disabilities have been shown to impact these abilities. The Veteran does not have any other specialized education, training or other experience that suggests he may be able to secure gainful employment that does not require these abilities. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Given the Veteran’s education, training, and work history, as well as the medical evidence of record, and after affording him the benefit of the doubt, the Board finds that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation and an award of TDIU on an extraschedular basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, 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.