Citation Nr: 21003086 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-63 536 DATE: January 19, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to the Veteran’s service-connected disabilities have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to November 1976. This matter comes before the Board of Veterans’ Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). It was originally before the Board on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA). The issue of entitlement to a TDIU was denied by the Board in a January 2019 decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision pursuant to a January 2020 Joint Motion for Partial Remand (JMPR). In the JMPR, the Court stated that the part of the Board’s January 2019 decision restoring a 10 percent evaluation for the Veteran’s left finger disability was favorable to the Veteran and cannot be disturbed by the Court. The Court found that regarding the issue of TDIU, the Board did not provide an adequate statement of reasons or bases for its determination. Lastly, the Board recognizes the contentions set forth in the in November 2020 appellate brief, which contends that the Veteran is entitled to extraschedular TDIU prior to January 2015. The effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date, otherwise, the effective date shall be the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). The period on appeal before the Board for the issue of TDIU begins in May 2015, the date of the Veteran’s VA Form 21-8940. The Board notes that the Veteran also filed applications for TDIU in March 2010, August 2013, and November 2013. Rating Decisions in April 2010 and April 2014 denied entitlement to a TDIU. The Veteran did not file a Notice of Disagreement within one year to either of these denials. Therefore, the April 2010 and April 2014 denials of the Veteran’s applications for TDIU are final and not for appellate consideration at this time. And as discussed in detail below, the provisions of 38 C.F.R. § 3.400(o)(2) do not apply as the evidence demonstrates that the Veteran has been precluded from securing and following substantially gainful employment by his service-connected disabilities more than a year before the claim was filed. A Veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). VA may consider the level of education, special training, and previous work experience in making this determination, but may not consider the Veteran’s age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). Medical evidence describing the effect of each disorder on the Veteran’s occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1. However, the question of whether the Veteran’s service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board’s determination to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 C.F.R. § 4.16 (a) as support for the conclusion that the applicable statutory and regulatory provisions “place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching an ultimate conclusion regarding his employability. The Court of Appeals for Veterans Claims recently defined the term unable to secure and follow a substantially gainful occupation in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran is service connected for cold injury residuals of the bilateral feet rated at 30 percent each, for a total of 60 percent using the bilateral factor; neuropathy of the bilateral lower extremities at 10 percent rating each, for a total of 20 percent using the bilateral factor; a left ankle disability rated at 10 percent; tinnitus rated at 10 percent; and left ring finger fracture residuals rated at 10 percent. He has been in receipt of at least a 70 percent combined disability rating since filing his VA Form 21-8940 claim on May 22, 2015. As such, he meets the schedular criteria for a TDIU. The Veteran has a high school education and a Commercial Driver’s License (CDL). The Veteran submitted a May 2020 statement regarding his disability and employment history. He stated that he last worked in December 2004 as a flatbed truck van driver. He quit his job due to trouble with his service-connected disabilities. He was unable to use his hands to steer, as steering aggravated his left finger condition and it became too painful to drive. Since he stopped working, he has problems grasping things such as knives and hammers, as well as writing. He used to be a meat cutter prior to being a truck driver, but could not get a job doing so due to his left hand disability. Further, his cold injury residuals, tinnitus, and left ankle condition impact his ability to work. The Veteran uses a cane to walk and must sit down after about three blocks. The Veteran is unable to stand for more than 15 minutes before needing to sit down. The Veteran also has trouble climbing stairs. The Veteran has issues with loud noises and speaking on the phone due to his tinnitus. His neuropathy and left ankle condition also limit him and affect his sleep. Various medical examinations have touched on the Veteran’s employability and work background. VA peripheral nerve, cold injury, foot and skin diseases examinations from February 2015 included findings that the respective conditions did not impact the ability to perform any type of occupational task. VA examinations conducted in July 2015 also included findings that the Veteran’s respective disabilities did not impact his ability to work. However, a July 2015 tinnitus VA examination noted that the Veteran’s tinnitus impacted ordinary conditions of daily life, including the ability to work, and further noted the Veteran’s reports that he felt that tinnitus interfered with his hearing. The Veteran underwent a February 2016 VA hand and finger conditions examination. The examiner noted that the Veteran’s disability impacts his ability to perform some occupational tasks. Specifically, the Veteran has lost some grip strength in his hands, hampering his ability to drive a truck, which was his occupation. An additional June 2019 VA hand and finger conditions examination noted that the Veteran’s disability affects gripping and holding onto objects. A June 2019 VA foot conditions, ankle conditions, and cold injury residuals examinations noted that the Veteran is unable to walk more than a fourth of a mile, in addition to an inability to stand for more than 15 to 20 minutes. The Veteran underwent a vocational assessment in October 2020. The vocational consultant opined that it is more likely than not that the Veteran has been precluded from securing and following substantially gainful employment by his service-connected disabilities from at least April 2011 to the present. The Board accords this opinion probative weight, as it is thoroughly supported by the Veteran’s medical and employment history. (Continued on the next page)   When considering the Veteran’s employment and educational background, as well as the medical evidence of record, in addition to affording the Veteran the benefit of the doubt, the Board finds that the evidence supports a grant of a TDIU. When looking at the effects of the Veteran’s service-connected disabilities in the aggregate, and considering the Veteran’s past education and work experience, the Board finds the Veteran is not capable of obtaining and maintaining substantially gainful employment consistent with his education and experience. The Board is the ultimate arbitrator on whether the Veteran is entitled to TDIU, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As such, the Board concludes that TDIU is warranted under 38 C.F.R. § 4.16(a). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.