Citation Nr: 21068439 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-49 867 DATE: November 10, 2021 ORDER Service connection for left elbow cubital tunnel syndrome (CTS) is granted. Service connection for right elbow CTS is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on a schedular basis from July 1, 2011, to August 1, 2018, and as of April 1, 2020 and on an extraschedular basis from August 1, 2018, to February 28, 2019, is granted. FINDINGS OF FACT 1. The Veteran's bilateral CTS is related to his service connected bilateral elbow disabilities. 2. The Veteran's service connected disabilities render him unable to secure or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral elbow CTS are met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.09, 3.310. 2. The criteria for a schedular TDIU from July 1, 2011, to August 1, 2018, and as of April 1, 2020, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.16. 3. The criteria for a TDIU from August 1, 2018, to February 28, 2019, on an extraschedular basis are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1978 to February 1983. The Veteran testified before the undersigned Veterans Law Judge at a hearing in May 2021; a copy of the transcript is of record. The Board notes that in March 2020 the Veteran filed for service connection for acquired psychiatric disorders. Concurrent with his claim, the Veteran submitted a detailed examination report and statements from his health care providers which addressed the relationship between his acquired psychiatric disabilities and his service connected conditions. However, this claim is not pending before the Board at this time and, as such, the Board does not have jurisdiction over this issue. Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Bilateral Elbow CTS Secondary service connection requires a finding that that the current disability was either caused by or aggravated by a service-connected disability. In the current matter, such a connection regarding the Veteran's bilateral elbow CTS is supported by the evidence of record. The Veteran is service connected for bilateral elbow degenerative joint disease and has undergone multiple surgeries on his right elbow. Medical records establish that the Veteran has been diagnosed with bilateral elbow CTS and a December 2019 examination report related the Veteran's elbow CTS to his service connected elbow degenerative joint disease. As such, the Board affords the Veteran the benefit of reasonable doubt and finds that service connection for left and right elbow CTS is warranted. The Board does note that VA examinations have stated that it was not likely that the Veteran's bilateral elbow CTS was caused by his bilateral elbow arthritis. These opinions, however, did not consider whether the Veteran's elbow conditions were exacerbated by his arthritis and also did not adequately present the medical chronicity of the Veteran's bilateral elbow CTS. As such, the Board does not afford these examination opinions any probative weight. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that a grant of service connection for left and right elbow CTS is warranted. TDIU At the outset, the Board notes that the Veteran's claim for a TDIU is intertwined with the grants of service connection for his bilateral elbow CTS, detailed above. A normal course of action would be to remand the issue of a TDIU pending outcome of the assigned percentages for the Veteran's bilateral elbow service connection grants. However, based on the Veteran's May 2021 hearing testimony, the Board is concerned that should the Veteran's bilateral elbow disability be rated at a percentage less than that which would grant the Veteran a 100 percent rating, further delay would result in the return of the remanded TDIU issue. As such, in an abundance of caution, the Board finds that a determination of the Veteran's TDIU eligibility is warranted. The Veteran is cautioned, however, that if his bilateral elbow CTS get assigned percentages that result in his overall disability rating combining to a 100 percent disability, all grants of a TDIU are moot. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has multiple periods when he was assigned a 100 percent rating. A TDIU is inapplicable to those periods. However, outside of those periods the Veteran was assigned a 50 percent rating for his right elbow replacement from July 1, 2011, to August 1, 2018, along with and multiple other service connected disabilities; the Veteran also meets the schedular criteria as of December 12, 2019, as his left elbow is rated at 50 percent (however, the Veteran has a 100 percent rating until April 1, 2020). Hence, the Veteran meets the criteria for a schedular TDIU rating for the period from July 1, 2011, to August 1, 2018, and as of April 1, 2020, per 38 C.F.R. § 4.16 (a). The Board notes that though the Veteran did not formally file his application for a TDIU until November 2011, the issue of entitlement was raised via the record in a June 2011 functional assessment form, when the examiner noted the Veteran was unable to lift anything due to his service connected bilateral elbow disabilities. As such, the Board finds that entitlement to a TDIU has been raised by the record, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), as of June 2011. The evidence contains numerous letters from the Veteran's treating providers as well as VA examiners which clearly state that the Veteran's bilateral elbow disabilities, in and of themselves, render him unemployable. See September 2011 VA examination, October 2015 private record, November 2016 VA examination, May 2017 VA examination, December 2019 private examination, and January 2020 private report. The Board finds that the evidence of record establishes that the Veteran is entitled to a TDIU. As the Veteran indicated on his November 2011 form that he last worked in June 2011 and as the Veteran does not meet the schedular criteria for a TDIU until July 1, 2011, the Board finds that the appropriate date for a schedular TDIU is from July 1, 2011, to August 1, 2018, and as of April 1, 2020. Additionally, the Board notes that in exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). In this matter, the Veteran does not meet the schedular criteria for a TDIU for the period from August 1, 2018, to February 28, 2019. The Board notes that any prior prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court's decisions in Thun and Anderson, as well as the Federal Circuit's affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Director of Compensation yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. In a precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance. See Wages v. McDonald, 27 Vet. App. 233 (2015) (Kasold, J., concurring). The Wages majority separately noted that, "[i]n sum, the Secretary's contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected." Id. at 5. (emphasis added). The majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that "Although it is not clear how the Secretary's approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process.") Id. at 5 fn 4. Therefore, given the Board's reasoning as outlined above, it will not make the Veteran wait for any further processing by VA. The Board also finds that a TDIU on an extraschedular basis is warranted for the period from August 1, 2018, to February 28, 2019. Again, the evidence of record speaks volumes and establishes that the Veteran's bilateral elbow disabilities clearly prohibited him from working. Indeed, the Board notes that the May 2017 VA examiner stated that the Veteran's elbows caused such functional disability that "functioning in most occupational environments would be extremely difficult if not impossible." Thus, the Board finds that a TDIU from the period from August 1, 2018, to February 28, 2019, on an extraschedular basis is warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.