Citation Nr: 21070169 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-36 574 DATE: November 23, 2021 ORDER Entitlement to an initial compensable rating for right hand status post fracture fifth metacarpal with right hand status partial fusion is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Diagnostic Code 5230 does not offer a compensable rating; the Veteran does not have ankylosis of the fifth finger, and his fifth finger impairment does not result in effective amputation. 2. The preponderance of the evidence does not indicate that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for right hand status post fracture fifth metacarpal with right hand status partial fusion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5230. 2. The criteria for entitlement to a total disability rating based upon individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1996 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of a VA Regional Office (RO). These claims were most recently remand by the Board in an August 2019 decision. The Board finds that the RO substantially complied with its remand directives, and the Board may proceed with adjudication. Finally, the Board observes that the Veteran's representative submitted correspondence to VA in May 2021 attempting to unilaterally revoke power of attorney for the Veteran in this appeal. The Board finds that this attempt to withdraw is inadequate under 38 C.F.R. § 20.6, as it does not show good cause for the withdrawal or include a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the Veteran, setting forth the address to which the copy was mailed. There is no indication in the evidence of record of the Veteran seeking to discontinue his current representation. Additionally, the appeal had already been returned to the Board for adjudication prior to receipt of the motion to withdraw as representative. See October 2020 Board letter. The representative did not respond to a September 2021 Board letter addressing this matter. Accordingly, the motion to withdraw is rejected. 1. Entitlement to an initial compensable rating for right hand status post fracture fifth metacarpal with right hand status partial fusion The Veteran seeks a compensable rating for his right fifth finger disability. VA regulations provide a maximum noncompensable rating for limitation of motion of the ring or little finger. See 38 C.F.R. § 4.71a, DC 5230. The Board acknowledges that the Veteran has reported functional impairment due to symptoms such as pain and interferences with gripping. See February 2020 VA examination. The Veteran is already in receipt of the highest schedular rating for limitation of motion of this finger; therefore, the regulatory provisions (38 C.F.R. §§ 4. 40, 4.45, 4.59) pertaining to functional loss are not for application. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). VA regulations provide higher ratings for amputation and ankylosis. The record does not reveal any findings of ankylosis, and the March 2020 and March 2016 VA examiners determined that the Veteran's impairment is not analogous to amputation. The Board finds the record also does not suggest any impairment beyond that contemplated by the current ratings. Notably, the symptoms reported by the Veteran are associated with the limitation of motion considered in the current rating. Accordingly, the claim is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 2. Entitlement to TDIU The Veteran asserts that his service-connected disabilities prevent him from securing or following a substantially gainful occupation. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing and following substantially gainful employment consistent with her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment for purposes of 38 C.F.R. § 4.16(a). Generally, marginal employment shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16(a); see also Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). However, marginal employment may be held to exist on a "facts found basis" even when earned annual income exceeds the poverty threshold, including but not limited to "employment in a protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16(a). TDIU may be assigned when the schedular rating is less than total where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more, and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has met the threshold requirements of 38 C.F.R. § 4.16(a) for the entire period on appeal, as he has a combined disability rating of 70 percent from August 2, 2015 onward, and his depression disability is rated as 50 percent disabling from August 2, 2015 onward. Additionally, his left and right shoulder disabilities are each rated as 20 percent disabling, and he has a noncompensable rating for his right fifth finger disability. The remaining question is whether the evidence of record indicates that these disabilities prevent him from securing or following a substantially gainful occupation. In this case, the Veteran submitted a resume that reflects that he worked fulltime from February 2008 to May 2016, was unemployed from May 2016 to January 2017, interned from January 2017 to May 2017, worked at two different jobs from May 2017 to December 2017, and was unemployed from December 2017 onward. During the Veteran's February 2016 VA examination for mental disorders, the VA examiner indicated that his psychiatric disability resulted in anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining relationships, and difficulty in adapting to stressful circumstances. These symptoms resulted in occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent rating. During the Veteran's February 2016 VA examination for hand and finger disabilities, the VA examiner indicated that the Veteran's finger disability did not affect his ability to work. In his October 2016 financial status report and TDIU application, the Veteran indicated he worked full-time until May 2016. He indicated he become too disabled to work in June 2015. In an October 2016 statement in support of his claim, the Veteran reported that he experienced pain in his right hand when writing and could not do so for more than 10 to 15 minutes at a time. In an April 2017 VA treatment record, the Veteran reported that he had been seeking employment for 3 years and not found any, but attributed this to being court-martialed during service. During the Veteran's June 2017 VA examination for shoulder conditions, the examiner indicated that his shoulder disabilities would not affect him in his then-current job as an administrative assistant. However, physical work could cause increased shoulder pain. In an October 2018 VA treatment record, the Veteran reported that he was not currently employed. In a November 2018 VA treatment record, the Veteran reported serious doubts about his ability to maintain substantive employment. The Veteran applied for vocational rehabilitation in July 2019. In November 2019, VA sent the Veteran a letter requesting that he complete a VA Form 21-2192, Request for Employment Information. However, the Veteran never returned a completed form. Accordingly, the Board must consider the Veteran's claim with the employment history that is currently of record. In a November 2019 Vocational Rehabilitation Employment Planning Questionnaire, the Veteran indicated that he received compensation from VA and the Social Security Administration (SSA), but he had no income from employment. The Veteran was accepted into the VA Vocational Rehabilitation and Employment (VR&E) program in November 2019. In a November 2019 Rehabilitation Needs Inventory, the Veteran indicated he worked full-time from February 2008 to May 2016 and part-time from January 2017 to May 2017. He indicated that he worked full-time as a sales and accounts auditor from May 2016 to July 2017, when he changed jobs after being accepted for a new position. He worked full-time from July to December 2017. He was fired because he was "not a good fit" with people and management. During the Veteran's February 2020 VA examination for hand and finger conditions, the VA examiner opined that his disability would interfere with repetitive heavy use of the right hand for gripping, and he would experience pain when gripping objects with his right hand. The Veteran reported pain when typing, but he could continue working despite the pain. During the Veteran's February 2020 VA examination for mental disorders, the VA examiner found that his psychiatric symptoms resulted in depression and suspiciousness and occupational and social impairment due to mild or transient symptoms. The examiner listed a history involving serious behavioral and psychiatric problems. In a February 2020 VA treatment record, the Veteran reported that he had started a new job and was functioning well at work, but he had experienced difficulty keeping a job previously. The Veteran has not provided an up-to-date employment history, and it is unclear whether his service-connected disabilities have interfered significantly in securing or following the full-time positions he has held during the period on appeal. While the Veteran's bilateral shoulder and right fifth finger disabilities negatively affect his ability to perform physically strenuous work, no examiner has indicated he could not perform physical work at all, and these disabilities would have only a limited effect on his ability to perform sedentary work. The Veteran indicated he was fired from his last full-time position due to not being a good fit with people and management, and the Board is cognizant of the potential effect of his psychiatric disability on his ability to function in professional and interpersonal settings. The Veteran has reported a history of serious behavioral problems at the workplace, but it is unclear whether these behavioral problems are attributable to his service-connected depressive disorder. No examiner has indicated that the Veteran's psychiatric disability would prevent him from performing sedentary work. Furthermore, in his most recent VA examination for mental health disorders, the examiner indicated that the Veteran's psychiatric disability's functional impairment was less severe than it had been previously. Additionally, the Veteran qualified for the VR&E program and appeared interested in returning to work. Finally, in February 2020, the Veteran reported that he was working and functioning well at work. It is unclear whether this job constituted substantially gainful employment. Given these facts, while there is significant evidence for and against the Veteran's claim, the Board finds the preponderance of the evidence is against his claim for TDIU. Accordingly, the claim for TDIU is denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.