Citation Nr: 21013262 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-36 286 DATE: March 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted on an extra-schedular basis effective February 6, 2009, subject to the statutes and regulations governing payment of retroactive compensation. FINDINGS OF FACT 1. It already has been determined the Veteran is entitled to a TDIU from March 25, 2016 onward. 2. However, even prior to that, from February 6, 2009 to March 24, 2016, it is as likely as not his service-connected disabilities, especially his right thumb arthritis and right wrist disability, status post carpel tunnel release, precluded him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to a TDIU on an extra-schedular basis as of February 6, 2009. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, ,4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1982 to May 1985. This appeal to the Board of Veterans’ Appeals (Board) originated from a November 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied this claim in April 2019, including on an extra-schedular basis, and the Veteran appealed to the higher U.S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In January 2020, the contesting parties filed a Joint Motion for Remand (JMR), asking the Court to vacate the Board’s decision denying this claim and to remand this claim back to the Board for readjudication in accordance with agreement in the JMR. The Court granted the JMR in a February 2020 Order and since has returned this claim to the Board for readjudication. A TDIU on an extra-schedular basis is granted effective February 6, 2009 The Veteran, through counsel, contends he is entitled to a TDIU beginning on January 1, 2009, primarily due to his service-connected right-hand disability. And, as will be discussed, after again reviewing this claim, the Board finds that a TDIU is indeed warranted from this earlier point in time – but, instead, as of February 6, 2009 because the evidence of record, including multiple reports from the Veteran personally, such as in January 2021 and on his TDIU Application (VA Form 21-8940) earlier submitted in January 2011, indicate that his last day of substantially gainful employment was on February 6, 2009. Relevant Procedural History In a June 2010 decision, in part, determining the Veteran’s right hand disorder was related to an injury he had sustained to this extremity during his service, so a service-connected disability, the Board additionally determined that a TDIU also had been raised by the record and was “part and parcel”, thus, derivative of, the claim already on appeal. Consequently, the Board assumed jurisdiction over this additional TDIU claim but, rather than immediately adjudicating it, referred it back to the Agency of Original Jurisdiction (AOJ), i.e., back to the local RO, for appropriate development and consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Subsequently, in January 2011, the Veteran submitted his formal TDIU application (VA Form 21-8940). However, in a May 2012 rating decision, the RO denied his claim for a TDIU. In April 2014, in support of this claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. In August 2014, the Board again remanded this TDIU claim back to the RO (AOJ), but this time for other needed development – including providing the Veteran a VA general medical examination reassessing the severity of his service-connected disabilities and especially their functional impact since that, in turn, would assist VA adjudicators in determining whether he was entitled to a TDIU. In a December 2016 Supplemental Statement of the Case (SSOC) issued on remand, however, the AOJ continued to deny this derivative TDIU claim, so it was returned to the Board for further appellate review. In a more recent December 2017 rating decision since issued, however, a local Decision Review Officer (DRO) at the RO increased the rating for the Veteran’s service-connected right wrist disability, status-post carpal tunnel release, and right index finger retinacular cyst removal from 20 to 50 percent, retroactively effective as of March 25, 2016.   A subsequent January 2018 Board decision also consequently granted the Veteran a TDIU on a schedular basis effective as of that same date –March 25, 2016, under the provisions of 38 C.F.R. § 4.16(a), but instead remanded the issue of entitlement to a TDIU for the immediately preceding period prior to March 25, 2016, for consideration on an extra-schedular basis under the alternative special provisions of § 4 .16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). In December 2018, after receiving this referral, the Director of the Compensation and Pension (C&P) Service determined that an extra-schedular TDIU was not warranted for the period at issue prior to March 25, 2016. A subsequent April 2019 Board decision then also denied this claim for an extra-schedular TDIU, and, as already mentioned, in response the Veteran appealed to the Veterans Court (CAVC). In an Order dated February 3, 2020, the Court granted the contesting parties’ JMR asking to vacate the Board’s decision denying this claim and to remand it back to the Board for readjudication. Pursuant to agreement in the JMR, the Board is now specifically directed to adjudicate whether the Veteran’s service-connected disabilities prevented him from securing or following substantially gainful employment in accordance with the Court’s guidance in Ray v. Wilkie, 31 Vet. App. 58, 67-73 (2019). In its previous April 2019 decision, the Board found that the Veteran’s service-connected disabilities, alone, did not prevent him from performing the physical aspects of employment for the period at issue prior to March 25, 2016. The Board also found as a part of its decision that he was capable of engaging in “sedentary” employment, but without, according to the Court, fully explaining the meaning of “sedentary” work, “as well as how the concept of sedentary work factors into the [V]eteran’s overall disability picture and vocational history, and the Veteran’s ability to secure or follow a substantially gainful occupation.” According to Ray the Court has interpreted the phrase “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic. The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. As for the noneconomic component, the “the ultimate inquiry is instead on the individual claimant’s ability to secure or follow that type of employment.” In determining whether a veteran can secure and follow a substantially gainful occupation, the Court also articulates several factors to consider: 1) the veteran’s history, education, skill, and training; 2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, and 3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. After further review of this claim, and for the following reasons and bases, the Board now finds that the evidence supports concluding the Veteran’s service-connected disabilities, especially his right thumb arthritis and right wrist disability, status-post carpel tunnel release, prevent him from returning to the workforce and engaging in employment that could be considered substantially gainful versus just marginal in comparison, also notably when considering limitations imposed on his physical ability, coupled with his work history, level of education, skills, and training. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).   But even if a veteran fails to meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of the C&P Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38C.F.R. §4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). "Substantially gainful employment" is employment" which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a), 4.18. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38C.F.R. §§3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Analysis Prior to March 25, 2016, the Veteran was service connected for: atopic dermatitis, rated as 30-percent disabling; status post right carpal tunnel release/right index finger lower retinacular cyst removal, rated as 20-percent disabling; asthma, rated as 10-percent disabling; traumatic arthritis of the right thumb, residual of fracture, status post CMC fusion, rated as 10-percent disabling; and residual surgical scars, right wrist, associated with traumatic arthritis, rated as 0-percent disabling, so noncompensable. Therefore, prior to March 25, 2016, he had a combined disability rating of 60 percent. See 38 C.F.R. § 4.25 (combined ratings table). Consequently, prior to March 25, 2016, he did not have sufficient ratings for his service-connected disabilities to meet the threshold minimum rating requirements of §4.16(a) for a TDIU on a schedular basis – meaning, this claim must be considered, instead, on an extra-schedular basis. See 38 C.F.R. § 4.16(b). Significantly, the Court has held that the Board has no power to award a TDIU under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director, C&P Service, for consideration of an "extra-schedular rating" under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As a consequence of the Board's January 2018 remand, this matter was referred to the Director of the C&P Service for this special extra-schedular consideration under § 4.16(b), who made a decision in December 2018 denying entitlement to an extra-schedular TDIU for the period at issue prior to March 25, 2016, primarily relying on the determination the Veteran had not been precluded from pursuing “sedentary” employment, even if no longer capable of physically demanding work like he had had at his most recent job that had ended in February 2009 following an on-the-job crushing injury to his right hand. The decision also indicated that he had several non-service-connected conditions also contributing to his overall employability, the most significant of which was that February 2009 crush injury to his right hand (so on the premise that unfortunate accident did not implicate any service-connected disability, including his right-hand disability when considering the specifics of that injury). Although the Board is required to obtain the C&P Service Director's decision before awarding extra-schedular TDIU benefits, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). The Veteran has a high school education. He worked as a truck driver and mechanic from approximately July 1996 until that February 2009 on-the-job injury. He also has reported an employment history after service of working in a hardware store, a pump irrigation warehouse, operating a tow truck, and then auto transport, having been employed in the latter two jobs for 15 years. Since well prior to March 2016, the Veteran was afforded multiple VA compensation examinations addressing the nature and severity of his service-connected disabilities, which all consistently have reflected that his right upper extremity limitations have significantly impacted his gainful employability and his daily activities of life. For example, an August 2009 VA examination notes his grip strength in his right hand is reduced and causes pain and prevents him from opposing his thumb to his fifth joint. Earlier in June 2005, a VA examiner noted the Veteran had difficulty writing, gripping, and holding onto objects. Similarly, an October 2009 VA examination attributed his right thumb pain to his service-connected disability rather than to his February 2009 crush injury. The October 2009 examiner specifically noted the crush injury impacted the finger pads of digits 2, 3, and 4, so distinct from the Veteran’s thumb arthritis and carpel tunnel wrist condition. The October 2009 examiner also indicated that he could not specifically comment on the Veteran’s nerve damage prior to his crush injury because there were no nerve conduction studies found in the Veteran’s file. That notwithstanding, the Board finds significant that the examiner stated explicitly that “[w]ith respect to the etiology of the right wrist and hand complaints, they are without question caused by the injury sustained in 1984 in the service which resulted in degenerative arthritis of the thumb.” The examiner explained also that the Veteran’s operative procedures to address his thumb pain ultimately failed, leaving him with continued thumb pain and an ankylosed joint. It is also significant that treatment notes prior to his February 2009 crush injury confirm that he had been struggling for years with severe, chronic hand pain and reduced grip strength owing to service-related injury. His treatment records also indicate this chronic pain and reduced grip strength had persisted during the years following his February 2009 crush injury. Further concerning his continued chronic hand pain and reduced grip strength, during the Veteran’s April 2014 hearing testimony, he indicated that his service-connected thumb and wrist conditions had worsened and made it difficult – if not outright impossible, to drive a truck or shift gears. Specifically, he testified that “[he has] very limited motion only, the part of the thumb that [he] can move is the, tip of the thumb. [He] can’t bend the wrist backwards....” The Board also notes a December 2010 VA examination in which the examiner also commented that the Veteran’s traumatic arthritis of his right thumb has “left him permanent[sic] impaired and unable to work,” although the examiner ultimately concluded that this thumb condition was the result of the February 2009 crush injury, hence, unrelated to the Veteran’s military service (i.e., not owing to service-connected disability).   In March 2016, the Veteran had a VA general medical examination. And, following review of the evidence of record, including the Veteran’s lay statements, the examiner concluded the Veteran cannot perform any of his prior jobs. Moreover, the examiner indicated that, because of the service-connected disabilities, the Veteran could only function “at the sedentary physical level of employment,” but, even this, would be significantly limited. The examiner found that: (1) the Veteran would be unable to use vibrating and impact tools; (2) jobs requiring repetitive firm grasping and handling, or fine fingering, are not feasible; (3) sooty or fouled atmospheric conditions would provide difficult due to the Veteran’s asthma; and (4) heavy manual labor would not be feasible. Essentially, the VA examiner indicated the Veteran was only capable of marginal employment, particularly given his job history and skill set as a mechanic and truck driver (including tow truck driver). To reiterate, marginal employment is not considered to be substantially gainful employment. Also, a Veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. See 38 C.F.R. § 4.18. Thus, the evidence indicates that, even prior to March 2016 – more specifically, as of February 6, 2009, the Veteran's service-connected disabilities – primarily those referable to his right thumb and wrist – have precluded his participation in any substantially gainful occupation. The Board especially places probative value on his April 2014 hearing testimony, in combination with his August 2009 and March 2016 VA examinations. The Board acknowledges the intervening December 2010 examiner discusses the Veteran’s non-service-connected crush injury in their opinion and notes it is not service connected and, in turn, opines that the Veteran’s reported hand pain is unrelated to his service-connected disability. However, the August 2009 VA examination indicated that the lack of nerve conduction studies (NCS) performed prior to the Veteran’s February 2009 crush injury made it difficult to ascertain what amount of nerve damage came from that intercurrent injury as opposed to the injury he earlier sustained in service. In this circumstance, when it is not possible or feasible to separate the effects of the service-connected disability from a nonservice-connected condition, this reasonable doubt must be resolved in the Veteran’s favor in accordance with 38 C.F.R. § 3.102 and, for all intents and purposes, the signs and symptoms in question attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Indeed, when a claimant seeks benefits and the evidence is in relative equipoise, meaning as supportive of the claim as against it, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the evidence is at least in this relative balance concerning whether the Veteran's right thumb and wrist pain (causing a weakened grip and debilitating, chronic hand pain) are a result of his service-connected right thumb arthritis and right wrist disability, status post carpal tunnel release, or due to other etiologies, namely, his February 2009 crush injury, and thus whether his unemployability is attributable to his service-connected disabilities. Ultimately, the Board finds that these service-connected disabilities prevent him from returning to the workforce and securing and following a substantially gainful occupation, when especially considering the limitations imposed on his physical ability, coupled with his history, education, skills, and training.   After resolving all reasonable doubt in the Veteran’s favor, the Board finds that an extra-schedular TDIU is warranted beginning on February 6, 2009. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding ... benefits."). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.