Citation Nr: 21075825 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 20-01 219 DATE: December 21, 2021 ORDER Entitlement to an earlier effective date prior to August 8, 1980, for service connection of resection of bilateral first ribs, is denied. Entitlement to an earlier effective date prior to August 8, 1980, for service connection of surgical scars, bilateral rib resection, is denied. Entitlement to an increased evaluation of 40 percent for thoracic outlet syndrome, with left upper extremity nerve involvement for the entire period on appeal is granted. Entitlement to an increased evaluation greater than 20 percent for thoracic outlet syndrome, with right upper extremity nerve involvement is denied. Entitlement to an increased evaluation higher than 10 percent for resection of bilateral first ribs, is denied. Entitlement to an increased evaluation greater than 10 percent for postoperative residual, ganglion cyst removal, right wrist, is denied. Entitlement to a compensable evaluation for surgical scars bilateral rib resection, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Service connection for thoracic outlet syndrome was granted by the Regional Office (RO) in a December 1980 rating decision, effective August 8, 1980. 2. Service connection for resection of bilateral ribs is in effect as secondary to thoracic outlet syndrome, effective August 8, 1980. 3. Service connection for surgical scars, bilateral rib resection is in effect as secondary to thoracic outlet syndrome, effective August 8, 1980. 4. The Veteran's thoracic outlet syndrome, with left upper extremity nerve involvement has approximated severe incomplete paralysis throughout the entire appeal period. 5. The Veteran's thoracic outlet syndrome, with right upper extremity nerve involvement has manifested in mild incomplete paralysis throughout the entire appeal period. 6. The Veteran has a history of a bilateral 1st rib resection, but there is no regeneration or removal. 7. The Veteran is currently in receipt of the highest disability rating under Diagnostic Code 5215 for postoperative residual, ganglion cyst removal, right wrist, limitation of motion, and the evidence does not reflect that the Veteran has ankylosis of the wrist. 8. The Veteran's bilateral rib scars are not painful or unstable and do not exceed 39 square centimeters. 9. The probative evidence shows that the Veteran's service-connected disabilities preclude him from following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date prior to August 8, 1980, for service connection of resection of bilateral first ribs, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400. 2. The criteria for entitlement to an earlier effective date prior to August 8, 1980, for service connection of surgical scars, bilateral rib resection, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400. 3. The criteria for a rating of 40 percent, for thoracic outlet syndrome, with left upper extremity nerve involvement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.124a, DC 8512. 4. The criteria for an evaluation greater than 20 percent for thoracic outlet syndrome, with right upper extremity nerve involvement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.124a, DC 8512. 5. The criteria for an evaluation greater than 10 percent for bilateral first rib resection have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code (DC) 5297. 6. The criteria for an evaluation greater than 10 percent for postoperative residual, ganglion cyst removal, right wrist is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5215. 7. The criteria for a compensable evaluation for bilateral rib scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. 8. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from March 1967 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). EARLIER EFFECTIVE DATE Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). Appellate review of a rating decision is initiated by a NOD and completed substantive appeal after a SOC has been furnished. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3104(b), 3.105(a). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. Under VA regulations, a claim includes a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. 1. Entitlement to an earlier effective date prior to August 8, 1980 for service connection of resection of bilateral first ribs. 2. Entitlement to an earlier effective date prior to August 8, 1980, for service connection of surgical scars, bilateral rib resection. A rib resection was performed to treat his thoracic outlet syndrome in 1979. Thoracic outlet syndrome was granted service connection effective August 8, 1980, by a rating decision dated December 1980. A May 2018 rating decision granted service connection for resection of bilateral first ribs effective August 8, 1980. A November 2019 rating decision granted service connection for surgical scars, bilateral rib resection effective August 8, 1980. Surgical scars and bilateral rib resection have been granted secondary to the condition of thoracic outlet syndrome. Surgical scars, and bilateral rib resection cannot be granted prior to the date of the primary condition of thoracic outlet syndrome. (38 C.F.R. § 3.310, 3.400) The bilateral rib resection was done in an attempt to alleviate the bilateral symptoms of thoracic outlet syndrome. The medical records document surgical procedures in April and May of 1979, the RO determined since those records are before March 24, 2015, they can be considered an informal claim. However, a grant of service connection cannot be to the date of surgeries as the underlying condition that necessitated the surgeries was not service connected until August 8, 1980. The effective date for secondary service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Roper v. Nicholson, 20 Vet. App. 173 (2006). In this case, entitlement to service connection for the secondary disability of bilateral rib resection, and surgical scars, bilateral rib resection, could not arise prior to the award of service connection for the primary disability of thoracic outlet syndrome. Therefore, the Board finds that entitlement to secondary service connection for bilateral rib resection and scars arose on August 8, 1980, the date service connection was established for thoracic outlet syndrome. Therefore, the Board is precluded from assigning an effective date prior to August 8, 1980, for the award of service connection for surgical scars, and bilateral rib resection, associated with thoracic outlet syndrome. INCREASED RATING 1. Entitlement to an increased evaluation greater than 20 percent for thoracic outlet syndrome, with left upper extremity nerve involvement prior to December 11, 2019, and higher than 30 percent thereafter. 2. Entitlement to an increased evaluation greater than 20 percent for thoracic outlet syndrome, with right upper extremity nerve involvement. The Veteran's thoracic outlet syndrome with left and right upper extremity nerve involvement has been evaluated under Diagnostic Code 8512. DC 8512 pertains to the lower radicular group, which includes the radial, median, and ulnar nerves. Under DC 8512, contemplating paralysis of the lower radicular group nerves, a 20 percent rating is warranted for mild incomplete paralysis in the major or minor extremity. A 40 percent rating is warranted for moderate incomplete paralysis of the major extremity and a 30 percent rating is warranted for the same in the minor extremity. A 50 percent rating is warranted for severe incomplete paralysis of the major extremity and a 40 percent rating is warranted for the same in the minor extremity. Complete paralysis of the lower radicular group nerves is rated as 70 percent disabling for the major extremity and 60 percent disabling in the minor extremity and contemplates all intrinsic muscles of the hand and some or all of the flexors of the wrist and fingers paralyzed (substantial loss of use of the hand). DCs 8612 and 8712, contemplating neuritis and neuralgia of the lower radicular group nerves, respectively, are consistent with the criteria for evaluating degrees of paralysis as set forth above. 38 C.F.R. § 4.124a, DC 8512. The evidence of record establishes that the appellant is right-hand dominant. As such, his right upper extremity is the major extremity, and his left upper extremity is the minor extremity. On September 5, 2017, the Veteran filed a claim for increase for this disability. Turning to the evidence, in February 2018 the Veteran underwent an examination. He has bilateral thoracic outlet syndrome with bilateral rib resection. He reported his left is worse than the right. He reported all fingers are involved. He is right hand dominant. He has mild bilateral upper extremity intermittent pain, paresthesias and or dysesthesias. He had no numbness. Muscle strength testing was normal. Sensory examination findings were normal. The long thoracic nerve had mild incomplete paralysis bilaterally. The functional impact on his ability to work was described as pain with over-head lifting and repetitive use, that would impact his ability due to pain. He would have no issues with sedentary work. The Veteran had been rated under DC 8512 for the lower radicular group for several years. The February 2018 exam showed the long thoracic nerve group. In a May 2018 addendum, the examiner stated this is part of the thoracic outlet syndrome, and the brachial plexus is a combination of his nerves, it is all the same condition. April 2018, he had a shoulder and arm examination. He has bilateral thoracic outlet syndrome. He reported flare-ups during cold, rainy days. Functional impairment was an inability to do overhead work. His right and left shoulder flexion was to 160, abduction to 90, external and internal rotation to 90, with pain. He did not have pain with weight bearing, or tenderness, or crepitus. No additional loss following three repetitions. Functional impairment was he is unable to do overhead work. He has a left and right axillary area scar that each measure 17cm x 0.3cm. In a May 2018 addendum, the examiner explained thoracic outlet syndrome causes pain in the shoulder, arm and neck, as a result of nerves or blood vessels just below the neck are compressed. The compression can happen between the muscles of the neck and shoulder or between the first rib and collarbone. Symptoms include burning, tingling, numbness along the arm hand and fingers. The shoulder DBQ was selected as it provides more information about the affected area. The examiner explained the Veteran has arthritis in his shoulders, which causes limitation of movement of the shoulders, which is not related to thoracic outlet syndrome. There are left and right axillary scars that are from the surgery to remove the ribs. December 2019, he underwent a peripheral nerve examination. He reported his left hand and arm is worse than the right. He is unable to put on his socks and shoes with his left hand. He takes Neurontin 300 mg twice per day. As for constant pain, he has moderate left upper extremity pain. As for intermittent pain, usually dull, he has moderate right upper extremity pain, and severe left upper extremity pain. As for paresthesias and/or dysesthesias, symptoms are mild for the right upper extremity, and moderate for the left upper extremity. Muscle strength testing was decreased bilaterally to between 4 and 3 out 5. Sensory examination was normal. Long thoracic nerve was moderate incomplete paralysis bilaterally. He has bilateral axilla scars that measure 17cm by 0.3cm. At the February 2021 peripheral nerve examination, with respect to his right upper extremity he has mild intermittent pain, mild paresthesias, and mild numbness. As for his left upper extremity, he has mild intermittent pain, moderate paresthesias, and moderate numbness. He has full muscle strength, and no atrophy. He has normal reflexes. There was decreased sensation to the inner and outer arm, and decreased sensation to the bilateral hand/fingers. He has mild incomplete paralysis of the right long thoracic nerve, and mild incomplete paralysis of the left long thoracic nerve. Functional impact was described as an inability to work in an occupation that involves tasks at or above shoulder height. February 2021, he had a shoulder exam. He was noted as having thoracic outlet syndrome, and the condition had stayed the same since onset. He reported numbness and tingling in his left upper extremity and he often drops things out of his left hand. He reported flare-ups of the shoulder and/or arm, after an active day. Flare-up symptoms were pain, numbness and tingling in both arms, with left worse than right. He reported difficulty repetitively lifting items at or above shoulder height. Range of motion testing revealed right shoulder flexion and abduction to 160 with pain, internal rotation and external rotation to 90 degrees, with pain. Left shoulder motion was flexion to 160, abduction to 170 with pain, internal and external rotation to 90 degrees. There is no change bilaterally following three repetitions. Functional impact was he would be unable to work in occupations that require repetitive lifting at or above shoulder height. As for the left upper extremity in December 2019 the Veteran reported an inability to put on his socks and shoes with his left hand, and he has intermittent severe left upper extremity pain. The 2018 examiner found the Veteran to have mild incomplete paralysis, and the 2019 examiner noted moderate left upper extremity pain, in 2021 he had moderate paresthesias and numbness. While there is only one report of severe symptoms, given the Veteran's consistent reports of pain, and inability to put on his shoes, the left upper extremity symptoms are found to be severe in nature. Further, given that the Veteran filed for an increase on September 5, 2017, and reported in 2018 an inability to work in part due to his thoracic outlet syndrome, entitlement to a 40 percent is warranted since the date of claim of increase, September 5, 2017. Entitlement to a higher evaluation of 60 percent is not warranted as there is no indication he has complete paralysis of the lower radicular group nerves. As for the right upper extremity in 2018 he had mild bilateral upper extremity pain, paresthesias, and no numbness. In 2019 he had moderate right upper extremity pain, and in 2021 his symptoms were mild in nature. Given that the Veteran consistently reported his left as worse, and there is only one indication of moderate pain with the majority of the reported symptomatology being mild in nature, a 20 percent rating is warranted for mild incomplete paralysis in the major or minor extremity. The next higher evaluation of 40 percent is not warranted as there is no indication of moderate symptomatology. 3. Entitlement to an increased evaluation higher than 10 percent for resection of bilateral first ribs. The Veteran's bilateral first rib resection due to thoracic outlet syndrome is rated under 38 C.F.R. § 4.71a , Diagnostic Code 5297, which pertains to the removal of ribs. Under Diagnostic Code 5297, a 10 percent rating is warranted where there has been the removal of one rib or the resection of two or more ribs without regeneration. Higher ratings are warranted where multiple ribs are removed, up to a maximum rating of 50 percent where more than six ribs have been removed. Diagnostic Code 5297 does not provide a definition for "resection". By way of reference, Dorland's Illustrated Medical Dictionary defines "resection" as the removal of a portion or all of an organ or other structure. Dorland's Illustrated Medical Dictionary 1613 (30th ed. 2003). However, Diagnostic Code 5297 differentiates between resections and removal. Therefore, for purposes of rating the Veteran's disability under that Diagnostic Code, the Board will consider a "resection" to be the removal of a portion of an organ or other structure and "removal" to be a complete removal of an organ or other structure. Turning to the evidence of record, the Veteran's service treatment records reflect that he underwent surgical treatment for bilateral thoracic outlet syndrome in April and May of 1979. February 2018 x-rays confirm there had been no regeneration of the bilateral first resectioned ribs. As there is no indication the Veteran has undergone removal of his ribs, entitlement to an evaluation greater than 10 percent is not warranted. To warrant the next higher evaluation of 20 percent, there would have to be removal of two ribs. The Board acknowledges that Note (2) under Diagnostic Code 5297 provides that a rib resection may be considered a rib removal under certain circumstances. Specifically, resection will be considered a removal in thoracoplasty performed for collapse therapy or to accomplish obliteration of space. However, the resection in this case was not performed for such purposes. Therefore, the provisions set forth under Diagnostic Code 5297, Note (2), are not for application. The Veteran has not raised any other issues with regard to the rating for the status-postoperative right first rib resection due to thoracic outlet syndrome, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). In summary, the record reflects that the Veteran's status-postoperative right first rib resection due to thoracic outlet syndrome involved resection and not removal of bilateral first ribs. The Board therefore finds that the criteria for an evaluation greater than 10 percent have not been met under Diagnostic Code 5297 at any time during the rating period. As the preponderance of the evidence is against the assignment of a compensable initial rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an increased evaluation greater than 10 percent for postoperative residual, ganglion cyst removal, right wrist. The Veteran's right wrist is evaluated under DC 5215. He is seeking a higher rating for this disability. DC 5215, which provides ratings for limitation of motion of the wrist, provides that a 10 percent rating is warranted for dorsiflexion less than 15 degrees of either the major or minor joint or for palmar flexion limited in line with forearm of either the major or minor joint. DC 5214 provides for ratings for ankylosis of the wrist and for the major wrist provides a 30 percent rating where there is favorable ankylosis of the wrist in 20 to 30 degrees dorsiflexion. A 40 percent rating is warranted where there is ankylosis in any other position, except favorable. A 50 percent rating is warranted where there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation. In April 2018 he underwent an examination. He was noted to have a history of a right wrist ganglion cyst. He reported pain and limited movement in the wrist. He had surgery to remove the ganglion cyst in 1969 and 1970. He reported difficulty holding items for long periods of time. He reported picking things up but if he tries to move them, he will drop the item. He relayed his left wrist is worse. He reported flare-ups of the wrist, with increase pain in damp, cold weather. Functional impairment was described as difficulty with movement. Range of motion was palmar flexion to 50 degrees, dorsiflexion to 40, ulnar deviation to 10, and radial deviation to 15. Pain and limited movement contribute to functional loss. He had pain in all ranges of motion. There was no pain with weight bearing. His wrist was tender to palpation. There was no crepitus. There was no additional loss following three repetitions. The examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare-up. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination limit functional ability with repeated use over time. The rationale was it is not possible to predict with a reasonable degree of medical certainty a potential loss of range of motion manifested as a consequence of a flare or exacerbation outside the clinical setting. May 2018 addendum he was noted to have limitation of the function of the right wrist due to the ganglion cyst and surgeries during service. February 2021, he had a wrist examination. He reported pain and limited movement. He reported flare-ups or increase in pain, on an active day, mild in nature, that is alleviated by rest. Range of motion was dorsiflexion to 50, palmar flexion to 40, ulnar deviation to 10, and radial deviation to 15 degrees, with pain. He has pain in active and passive motion, that does not result in functional loss. There is crepitus. There is no evidence of localized tenderness or pain on palpation. There is not additional loss of motion following repetitive use testing. Estimated loss following repeated use over time and during a flare-up, was unchanged. Functional impact was he would be limited with repetitive tasks with hands, such as typing and writing. The Board finds a preponderance of the evidence is against finding a rating in excess of 10 percent for the Veteran's right wrist is warranted as the record reflects that the Veteran is currently in receipt of the highest rating provided under DC 5215. Additionally, as there is no evidence of ankylosis, the Veteran's right wrist fracture cannot be rated under DC 5214 for ankylosis of the wrist. 5. Entitlement to a compensable evaluation for surgical scars bilateral ribs. In September 2017 the Veteran filed a claim for increase. The Veteran's surgical scars bilateral ribs are rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. VA published a final rule amending its regulations on skin disabilities, effective August 13, 2018. There are no changes to Diagnostic Codes 7800, 7804, and 7805, under the August 13, 2018 amended version of the skin criteria. In other words, Diagnostic Codes 7800, 7804, and 7805 are exactly same both prior to and after August 13, 2018. Compare 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (August 13, 2018). The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's scar under Diagnostic Code 7805 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. The February 2018 and December 2019 examinations revealed bilateral axilla scars that measure 17 cm by 0.3 cm. In February 2021 the Veteran underwent a scar examination. He has bilateral rib scars. He has scars due to removal of the 1st rib bilaterally in 1979. None of the scars are painful, or unstable with frequent loss of covering of skin. The right axilla scar measures 10 x 0.3 cm. The left axilla scar measures 13 x 1 cm. There is no indication of tenderness, instability, or underlying soft tissue damage. Based on the foregoing, the preponderance of the evidence is against a finding that compensable rating is warranted for the bilateral rib scars. The record does not reflect that the Veteran has any other disabling effects associated with other scars, or that the scars interfere with use of the trunk to a compensable degree. As there is no evidence of any other disabling effects associated with either scar, a compensable rating is not warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.31, Diagnostic Code 4.118, Diagnostic Code 7805. No additional higher or alternative ratings under different Diagnostic Codes can be applied. There is no evidence that the noted scars have accompanying underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Likewise, the scars do not affect a total area in excess of 144 square inches (929 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Codes 7802. Finally, the scars are not painful or unstable or both. 38 C.F.R. § 4.118, Diagnostic Code 7804. The preponderance of the evidence is against a compensable rating for the bilateral rib scars. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. TDIU 1. Entitlement to a total individual employability. The Veteran asserts he is unable to work as a result of his service-connected disabilities. A total disability rating 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 as the result of service-connected disabilities. See 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. 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. Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a). In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. The Veteran is service connected for thoracic outlet syndrome with left upper extremity involvement with a 40 percent evaluation, thoracic outlet syndrome with right upper extremity involvement with a 20 percent evaluation, postoperative residual ganglion cyst removal right wrist with a 10 percent evaluation, resection bilateral ribs with a 10 percent evaluation, and surgical scars bilateral rib resection with a noncompensable evaluation. He has a combined evaluation of 70 percent. Therefore, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU. In a February 2018 statement, he reported working as a self-employed landscaper from 1972 to 2011. In a September 2018 statement, he reported since service working odd jobs here and there to make money. From 1970 to 1974 he worked as a painter, and then would do small tasks such as go to the store for someone. From 1981 to 1988 he worked to become a photographer, and photographed weddings. He returned to doing odd jobs from 1988 to 2008, doing things such as sweep snow off cars. In 2008 he began working in lawn work util about 2012. He reported when working in lawn care he never made more than a few hundred dollars a year doing landscaping work. In an October 2018 statement from his representative, he relayed the Veteran is unable to perform physical or sedentary employment. He reported the Veteran has no training in sedentary employment. The Veteran had never had a substantially gainful occupation. On the March 2020 VA Form 21-8940 he reported completing an Associate's degree in photography in 1983. He had worked as a landscaper from 1972 to approximately 2017, managing no more than 2 clients a year. In a March 2020 statement, the Veteran relayed that he had been unable to maintain substantially gainful employment since 1980. He reported being in pain as a result of his thoracic outlet syndrome since 1980. He has difficulty sleeping, as he wakes in pain, and must readjust himself. He cannot lift his arms overhead or bend over to tie shoes. As for his right wrist, he reported pain, and an inability to hold light objects in his hand without dropping them. He reported if he twists or moves his wrist there is immediate pain and dropping the item. He reported working in lawn care since 1972. And that he brings in no more than 200 a month on a seasonal basis. He reported an inability to work as a result of his service-connected conditions. In July 2020 an employability evaluation was conducted. P. T., a vocational consultant, conducted a review of the file and a phone interview with the Veteran. The Veteran reported finishing high school and received an Associate's degree from the Rhode Island school of photography in 1983. He has no computer skills. He worked as a commercial painter from 1970 to 1972. He explained leaving that work due to an inability to hold the pain brush. He worked as a photographer from 1981 to 1988, photographing weddings. He reported using heavy equipment and needing another person to assist him. He went through a divorce, lost his equipment, and was unable to purchase new equipment and hire an assistance. Since approximately 1972 to 2017 he did short term seasonal work, mowing lawns for two customers. His earnings were minimal. He did scuba diving from 1974 to 1999, as a hobby, however he earned minimal earnings occasionally from this hobby. He described himself as an amateur paleontologist, volunteering to give class to sixth graders, however this was only for a few hours a week, with no income. Based on a review of the medical information, file, and interview, P.T. concluded the thoracic outlet syndrome, wrist, and bilateral rib resection, have at least as likely as not rendered him unable to secure and follow employment, to include unskilled sedentary employment since 1980. P. T. cited to the 2018, and 2019 examinations that reveal his conditions result in his inability to lift his arm overhead. He would be unable to perform sedentary work. Sedentary work is described by the Department of Labor as work that involves exerting up to 10 pounds. Sedentary work typically requires at least occasional use of the upper extremities, however, as documented, he is unable to hold objects with his right hand, or use his hands for repetitious activities, further his work as a photographer, scuba diver, and lawn care worker, represent marginal work. Earnings since discharge have been consistently below the federal poverty threshold. Further, he has no computer skills, which are typically required of sedentary occupations. The Board acknowledges the VA examination findings that he would not be prohibited from sedentary work. However, the ultimate unemployability determination is a legal one. See Geib v. Shinseki, 733 F.3d at 1354. The Veteran has reported his service-connected conditions have an impact on his ability to secure employment. There is a statement from a vocational expert attesting to the Veteran's inability to work, and consistent statements by the Veteran as to his physical ailments as a result of his service-connected conditions. Based on his work history, the realistic chance of his obtaining and maintaining substantial gainful employment is low. The Board concludes the criteria for an award of TDIU benefits are met. The Board will not assign an effective date for the award of TDIU and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating"). (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.