Citation Nr: 21006970 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 07-06 343A DATE: February 8, 2021 ORDER Entitlement to a to a total disability rating based on individual unemployability (TDIU) prior to May 1, 2007 is denied. FINDING OF FACT The Veteran was able to secure or follow a substantially gainful or more than marginal employment since September 8, 2004 through April 30, 2007. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to May 1, 2007 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (b) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty with the U.S. Army from August 1983 to January 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). The Veteran testified within an August 2011 videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing has been associated with the claims file. Within a January 2012 Board decision and remand, the claim of entitlement to a TDIU was added to the appeal per Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Specifically, the Veteran had expressly raised the issue of entitlement to a TDIU within an August 2007 statement, in which he indicated that he had lost the use of three fingers on his right hand, which kept him from working for over a year, and subsequently raised the same issue within August 2011 videoconference hearing, testifying that his hand and finger disabilities kept him from working. The Board notes that the Veteran filed a non-initial increased rating claim for service-connected right finger disability on September 8, 2004. Therefore, the period on appeal for entitlement to a TDIU is from the date of the non-initial increased rating claim for service-connected right finger disability, on September 8, 2004. After adding the claim to the appeal, the Board remanded entitlement to a TDIU because it was inextricably intertwined with the additional remanded claims for service connection within the same decision. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The claim was again before the Board and remanded for the same reasons in September 2018. See Harris, 1 Vet. App. at 183. On remand, within an April 2019 rating decision, entitlement to a TDIU was granted on a schedular basis effective August 15, 2011, the date of the Board videoconference hearing. On return to the Board, the claim was again remanded in October 2019, as it was inextricably intertwined with the additionally remanded claims for service connection. Harris, 1 Vet. App. at 183. The claim was returned to the Board in April 2020. The Board granted TDIU as of May 1, 2007. The Board also remanded for consideration of entitlement to a TDIU on an extraschedular basis for the rating period prior to May 1, 2007. The Board finds that the AOJ substantially complied with prior remand directives and that the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Entitlement to a TDIU for the rating period prior to May 1, 2007 TDIU ratings 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result 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) (2019). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a) (2019). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b) (2019). 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). In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2019). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is 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. 38 C.F.R. § 4.16 (a) (2019). For a veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2019). As discussed within the Introduction above, the appellate period for entitlement to a TDIU is from September 8, 2004, the date from which a non-initial increased rating claim was filed for service-connected right finger disability. For the rating period prior to May 1, 2007, the Veteran did not have one disability rated at 40 percent or more with a combined disability rating of 70 percent or more. The Board notes that for the rating period as of September 8, 2004, the Veteran was service-connected for right hand injury with ankylosis of the middle, ring and little fingers, evaluated at 10 percent disabling; left hand laceration, evaluated as 10 percent disabling; painful left hand scar, evaluated at 10 percent disabling; lumbosacral strain, evaluated at 10 percent disabling; varicose veins of the left leg, evaluated at 10 percent disabling; left hip arthritis and bursitis, evaluated at 10 percent disabling, residuals of left middle finger fracture, evaluated at 10 percent disabling. The combined rating was 60 percent disabling. Therefore, entitlement for a TDIU must be considered under the criteria set forth in 38 C.F.R. § 4.16 (b). As of the most recent remand in April 2020, entitlement to a TDIU for the rating period prior to May 1, 2007 was referred to VA’s Director, Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). Within a July 2020 Memorandum, from the VA RO to the Director, Compensation Services, recommended granting entitlement to a TDIU on an extraschedular basis effective January 2, 2005, the first day after the Veteran left gainful employment. Within an October 2020 Advisory Opinion, the Director, Compensation Services determined that the evidence failed to support the contention that any service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment prior to May 1, 2007. The October 2020 did not cite to any specific evidence within the Veteran’s claims file. Because the claim for entitlement a TDIU under 38 C.F.R. § 4.16 (b) has already been reviewed and denied by the Director of the Compensation Service, the Board may consider, de novo, whether entitlement to a TDIU is warranted prior to May 1, 2007. Upon review of all the evidence, lay and medical, the Board finds that the Veteran was able to secure or follow a substantially gainful or more than marginal employment since September 8, 2004 through April 30, 2007. Within an August 2013 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran stated that his back, legs and hands began to affect his full-time employment in 2001, and that he last worked full-time employment in 2004, when he became too disabled to work. The Veteran had a high school education with an associate’s degree in applied business and culinary arts technology, which he began in 2006 and finished in June 2010. Within an August 2007 statement, the Veteran indicated that he had lost almost all use of the three fingers of his right hand, which had kept him from working for over a year. VA treatment records include a November 2004 treatment note in which the Veteran reported working as an automobile mechanic/technician and developed reduced range of motion and flexion of his right fingers, with pain when he uses his fingers. The Veteran complained of right-hand pain in February 2005, when he reported he was working full-time as an auto shop manager and felt weakness in his right hand limited his ability to work. The Veteran indicated that he was unable to do annual work secondary to his hand problems and was currently working as the manager. VA treatment records show the Veteran is right hand dominant. A May 2006 VA examination shows that the Veteran reported working as an autobody technician for the past 18 years. Upon review of the above, the Board finds that while the Veteran was limited in performing physical labor due to his service-connected disability of his dominant right hand, the Veteran was able to perform sedentary work, evidenced by his full-time work as an auto shop manager and subsequently, obtaining his associates degree from 2006 to 2010. The evidence does not otherwise indicate significant occupational impairment due to the Veteran’s service-connected disabilities, and does not reflect an unusual or exceptional disability picture due to his service-connected disabilities to warrant referral for consideration under 38 C.F.R. § 4.16 (b). There is nothing in the record to show that the Veteran’s service-connected disabilities alone cause impairment with employment over and above that which is contemplated in the assigned schedular rating in this case. To the extent the service-connected disabilities affect the Veteran’s employment, the assigned schedular ratings for the disabilities compensate the Veteran for such impairment. Therefore, because the weight of the evidence does not show that the Veteran’s service-connected disabilities, either singly or combined, prevented him from securing or following any substantially gainful employment, the Board finds that entitlement to a TDIU prior to May 1, 2007 is not warranted. 38 C.F.R. § 4.16 (b) (2019). Because the preponderance of the evidence is against the appeal for a TDIU, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.