Citation Nr: 21010210 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-03 588A DATE: February 24, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The evidence reflects that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1972 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In this decision, the Board grants entitlement to a TDIU. The Agency of Original Jurisdiction (AOJ) will set an effective date for the grant of entitlement to a TDIU. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). Entitlement to a TDIU is granted. The Veteran seeks entitlement to a TDIU based on the collective effects of his service-connected disabilities, but primarily based on the effects of his service-connected peripheral neuropathy, right upper extremity. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). In determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16 ; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The rating period for consideration is from one year prior to the date of receipt of the claim for an increased rating for service-connected right shoulder disability on June 28, 2010, if increased disability is demonstrated during the one-year period preceding the claim, otherwise from June 27, 2011. During the rating period on appeal the Veteran has been service connected for the following disabilities: peripheral neuropathy, right upper extremity, rated as 40 percent disabling (exclusive of a period of temporary total (100 percent) convalescence rating assigned pursuant to 38 C.F.R. § 4.30 ), degenerative joint disease AC joint S/P Mumford procedure, rated as 20 percent disabling (exclusive of a period of temporary total (100 percent) convalescence rating assigned pursuant to 38 C.F.R. § 4.30 ), right hip, symptomatic, regional myositis, rated as 10 percent disabling, and right arm scar, rated as noncompensable from May 3, 2016. The combined evaluation for these disabilities is 60 percent (with the exception of periods of temporary total (100 percent) convalescence ratings). See 38 C.F.R. § 4.25 (Combined Ratings Table). Thus, the Veteran does not meet the schedular criteria for consideration of a TDIU at any time during the rating period pursuant to 38 C.F.R. § 4.16 (a). No single service-connected disability is rated 60 percent or more, and the combined rating for the service-connected disabilities is less than 70 percent. However, a TDIU can be awarded on an extraschedular basis under 38 C.F.R. § 4.16 (b), if it is determined that the veteran is unemployable by reason of service-connected disability, but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). However, if it is determined that the veteran is unemployable by reason of service-connected disability, but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), the Board cannot consider such entitlement in the first instance. Instead, the claim must be remanded so that it can be referred to VA’s Director, Compensation Service for initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Nevertheless, the Board may consider whether the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation such that referral of entitlement to a TDIU on an extra-schedular basis is warranted under 38 C.F.R. § 4.16(b). In that regard, the Board notes that the RO referred the case to the Director, Compensation Services, in August 2020. In November 2020, the Director, Compensation Services, provided an administrative decision denying entitlement to a TDIU on an extra-schedular basis. See 38 C.F.R. § 4.16 (b). The November 2020 administrative decision includes a statement of reasons for the decision and a summary of the evidence considered. The Board notes that the Director’s decision is one of fact, not one of opinion, discretion, or policy, and is reviewable by the Board on a de novo basis. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board is precluded from assigning an extra-schedular rating “in the first instance,” the Board may assign extra-schedular ratings when reviewing either a grant or a denial of an extra-schedular rating by the Director, as is the case here. See id; Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). Accordingly, the Board may determine whether the Veteran is entitled to a TDIU on an extra-schedular basis. Upon review of the record, the Board concludes that the Veteran has a narrow vocational profile due to his service-connected disabilities such that he is unable to secure or follow a substantially gainful occupation. The Veteran was provided a VA peripheral nerves conditions examination in February 2017. The VA examiner noted that the Veteran was right-handed and that he had severe constant pain and numbness of the right upper extremity. The VA examiner noted that the Veteran has right hand muscle atrophy. Additionally, the Veteran had no sensation in the hand/fingers. The VA examiner opined that the Veteran’s peripheral neuropathy caused difficulty to do any work due to aches and the he feels tired even buttoning his shirt. The VA examiner further noted that the Veteran clearly has pains along the ulnar nerve and has some sensory impairment and inability to abduct and adduct the fingers that are the function of the small muscles of the hand that is associated with fine movements including writing. The Veteran was provided a VA shoulder and arm conditions examination in June 2017. The VA examiner noted that the Veteran is unable to lift over 25 pounds with his right hand. The Board accepts the limitations described by the VA examiners as probative in determining the Veteran’s occupational limitations because they are consistent with the Veteran’s symptoms as described in the record and in the examiners’ narrative report and because they are provided based on the examiners’ examination of the Veteran and on the examiners’ expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). Additionally, they are consistent with the Veteran’s statements. In view of the foregoing, the Board concludes that the Veteran, due to his service-connected right upper extremity disabilities, would be unable to secure or follow substantially gainful occupation. Specifically, the record indicates that the Veteran’s right upper extremity peripheral neuropathy would prevent him writing, typing, or lifting more than 25 pounds. Moreover, based on the Board’s review of the lay and medical evidence of record, and taking into consideration the functional impacts of the Veteran’s service-connected disabilities, as well as his education, training, and work history, the Board finds that the evidence is at least in equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.