Citation Nr: 21074828 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 08-31 728 DATE: December 16, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities ("TDIU") is denied. FINDING OF FACT The Board finds that the evidence of record indicates that the Veteran's service-connected disabilities did not prevent him from being able to obtain or sustain employment. Rather, the evidence indicates that the Veteran retired due to a post-service injury to his right arm. CONCLUSION OF LAW The criteria have not been met for a TDIU rating on either a schedular or extraschedular basis. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from August 1983 to December 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in May 2016, January 2019, December 2020, and April 2021, at which times the issue currently on appeal was remanded for additional development. The criteria have not been met for a TDIU rating. Legal Criteria It is the established policy of VA that all Veterans who are unable to obtain and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to obtain and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added.) Eligibility The Veteran has not met the schedular criteria for a TDIU rating during this appeal except for the period from January 26, 2007 to March 7, 2011. The Board remanded this matter in April 2021 to refer this matter to the Director of Compensation Service (Director) to determine eligibility on an extraschedular basis. In September 2021, the Director issued an advisory opinion finding that an extraschedular rating was not warranted. The Board is not bound by this decision and will conduct its own de novo analysis. Ray v. Wilkie, 31 Vet. App. 58, 63 (2019) (citing Wages v. McDonald, 27 Vet. App. 233, 238 (2015)). Factual Background The Veteran indicated that he is unable to obtain and maintain employment as a result of his service-connected right wrist fracture on his Application for Increased Compensation Based on Unemployability ( VA Form 21-8940 ). Specifically, the Veteran stated that he is no longer able to be employed as a biomedical technician as a result of limitations associated with his service-connected right wrist fracture. The Veteran worked as a biomedical technician from January 1989 to January 2011. The Veteran indicated that he was given 6-8 months off from work after an operation on his right wrist. The Veteran was afforded a March 2007 VA foot examination during which he reported the pain level of his feet being a 6/10 accompanied by stiffness and fatigability. The Veteran reported weekly flareups of an intensity of 9/10 lasting around 3-5 hours. The Veteran was also afforded a March 2007 VA wrist examination during which he reported pain on his right hand with a usual intensity of 6/10. The Veteran reported that he has flare-ups of the wrist whenever there are cloudy or rainy days which usually last 2-4 hours. Upon range of motion testing, the Veteran's right hand showed full dorsiflexion, palmar flexion, radial deviation, and ulnar deviation without any functional loss. The Veteran reported in an August 2007 statement that his right wrist will swell to the point that he cannot apply any type of force with it. At an April 2011 VA examination, the conducting physician indicated that the Veteran suffered a post-service accident months earlier which overshadowed his original symptoms. The physician indicated that the Veteran's right wrist disability would decrease his manual dexterity and cause problems with lifting and carrying. Upon range of motion testing, the Veteran's right wrist dorsiflexion was 0 to 20 degrees, palmar flexion was 0 to 10 degrees, radial deviation was 0 to 10 degrees, and ulnar deviation was 0 to 10 degrees. In June 2011, a VA physician reviewed the Veteran's file and indicated that the Veteran sustained an injury to the right upper extremity in January 2011. The physician indicated that the Veteran had a triple phase bone scan at the hospital suggestive of reflex sympathetic dystrophy of the right upper extremity. The physician explained that these post-service fractures are unrelated to the Veteran's previous service-connected right wrist injury, because a March 2007 VA examinationprior to the post-service injuryhad indicated no functional disabilities of the Veteran's right wrist joint. The physician explained that the Veteran's migraine headaches are the only service-connected condition which would have a significant impact on his ability to work. The physician opined that the Veteran may miss work or have to leave early an average of once or twice a month. The physician opined that the Veteran's major cause of disability was his non-service connected right upper extremity fracture. The Veteran submitted a January 2012 private medical report from his physician who indicated that the Veteran fractured his right elbow in January 2011 which resulted in permanent incapacitation from work due to pain and decreased range of motion in the forearm. The Veteran was afforded a March 2013 VA examination during which the conducting physician opined that the Veteran's service-connected foot, scar, and wrist conditions would not prevent him from being employed in a semi-sedentary type job with hand tools and grip tasks restrictions. The Board views sedentary work as work in an office-like setting, that is primarily performed in the sitting posture, working on the computer, using analytical skills, and completing administrative tasks. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). The Veteran's social security administration (SSA) records indicate that he has limitations in personal care due to pain, is unable to do house chores, is able to walk for 15 minutes and has limitations lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, and using hands. The Veteran was afforded a June 2018 VA wrist examination during which the conducting physician indicated that the Veteran cannot perform any forceful, repetitive motion or torquing with his right wrist. The physician further indicated that this would prevent the Veteran from using his right wrist to use a computer or work on electronics. The physician opined that the Veteran's right wrist condition would not preclude limited duty or sedentary employment. The physician explained that they would resort to mere speculation to opine the precise degree of contributions from the Veteran's service-connected right wrist condition and his post-service right wrist fracture to his current limited range of motion and resulting physical limitations at the right wrist. As a rationale, the physician explained that the Veteran has a more severe limitation of range of motion of the right wrist currently than he did in 2011 which is due to natural progression of both his service-connected and post-service right wrist conditions. The physician also explained that the Veteran's service-connected right wrist condition is expected to proceed with increasing effects on range of motion and resulting limitations over time. The Veteran was also afforded a June 2018 VA foot examination during which the conducting physician indicated that the Veteran cannot stand for more than 10-15 minutes, or walk more than 10-15 minutes because both of his feet hurt all the time as a general distraction. The physician opined that the Veteran's service-connected foot symptoms would not preclude limited duty or sedentary employment. In September 2021, the Director indicated that the medical evidence shows that the Veteran would have difficulties with repetitive motions of his wrist as well as prolonged standing or walking, however, the Veteran's disabilities would not impair his ability to obtain sedentary employment. The Director observed that the Veteran's service-connected condition cause functional limitations, but the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities would prevent him from securing or following a substantially gainful occupation. Although the Veteran reported that he was unable to apply force with his right wrist in his August 2007 statement, he displayed full range of motion of the wrist at the April 2007 VA examination and was able to sustain his employment as a biomedical technician until his post-service accident in January 2011. Indeed, the Veteran did not display loss of range of motion of the right wrist until after his post-service accident as evidenced by the April 2011 VA examination. Accordingly, the Board assigns probative value to the June 2011 VA examiner's opinion which indicated that after his post-service accident, the Veteran had reflex sympathetic dystrophy of the right upper extremity which is unrelated to the Veteran's previous service-connected right wrist injury. While the Board acknowledges that the June 2018 VA examiner opined that the Veteran's service-connected right wrist condition is expected to proceed with increasing effects on range of motion and resulting limitations over time, the examiner was unable to opine as to the precise degree of contributions from the Veteran's service-connected right wrist condition and his post-service right wrist fracture to his current limited range of motion and resulting physical limitations at the right wrist without resorting to mere speculation. Because the June 2018 VA examiner was unable to provide an opinion without resorting to speculation, and because nothing in the June 2018 VA examination report refutes the June 2011 VA physician's opinion, the June 2011 opinion warrants greater probative weight. Regarding the Veteran's service-connected feet conditions, the Board notes that the June 2018 physician opined that the Veteran's service-connected foot condition would not preclude limited duty or sedentary employment. Indeed, the Veteran's service-connected foot condition did not prevent him from maintaining employment as a biomedical technician as the Veteran reported that he left this position due to his wrist injury. Finally, regarding the Veteran's service-connected migraines, the Board notes that the June 2011 VA examiner indicated that the Veteran's migraines would only cause him to miss work or have to leave early an average of once or twice a month. Given that the Veteran was able to maintain employment up until the point he injured his right arm in a post-service accident, an in light of the evidence showing that he is not unable to secure or follow a substantially gainful occupation as a result of his service-connected conditions, the Board finds that a TDIU is not warranted. (Continued on the next page) As such, a TDIU rating on either a schedular or extraschedular basis is denied. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.