Citation Nr: 21015002 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 10-24 659 DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The probative evidence of record indicates that the Veteran’s service-connected disabilities preclude him from obtaining and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 3.102, 3.321, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1985 to February 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO). In February 2015, March 2017, November 2017, and March 2019, the Board remanded this matter for additional development. In its February 2015 remand, the Board also incorporated the Veteran’s claim for a TDIU due to service-connected disabilities into his appeal for increased ratings for his fracture of the right fifth metacarpal with degenerative joint disease and scar, degenerative joint disease with scars of the right wrist, and neuritis, status-post right radius and ulnar fracture with postoperative carpal tunnel release citing Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the November 2017 remand, the Board remanded entitlement to TDIU on an extraschedular basis. In the November 2017 remand, the Board directed that the Veteran could be afforded a supplemental opinion addressing the Veteran’s ability to function in an occupational environment and describing the functional limitations related to the combined impact of his service-connected disabilities. The Veteran was afforded VA examinations in April 2018. At this time, the VA examiner did not address the combined impact of the Veteran’s service-connected disabilities. Therefore, there was not substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that “medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity,’ … but it is the rating official who is responsible for ‘interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may actually reflect the elements of disability present…’”). Therefore, any errors in compliance with the previous remand directives with regard to this issue are harmless. In March 2019, the Board remanded the issue for extraschedular consideration by the Director of the Compensation Service. An advisory opinion by the Director of Compensation Service was associated with the file in December 2020. In the March 2019 remand, the Board also directed that the Agency of Original Jurisdiction (AOJ) to request the Veteran to provide additional information about his work history. The Veteran submitted an Application for Increased Compensation Based on Unemployability in May 2020. Therefore, there has been substantial compliance with the March 2019 remand directives. Entitlement to TDIU The Veteran contends that he is unable to maintain gainful employment due to his service-connected right upper extremity disability, peripheral nerve disability, and right hand disability. The Veteran is service connected for the following disabilities: right wrist medium nerve peripheral neuropathy rated at 10 percent from February 1988 and 30 percent from December 1993; fracture, right fifth metacarpal with degenerative joint disease with scar rated at 10 percent from February 1988; right wrist degenerative joint disease with scars associated with right wrist medium nerve peripheral neuropathy rated at 10 percent from November 2008; right hand scar associated with fracture, right fifth metacarpal with degenerative joint disease with scar rated at 0 percent from October 2019. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, 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. § 4.16. The threshold criteria for consideration of a schedular TDIU are not met. Nevertheless, even when the percentage requirements are not met, entitlement to a TDIU on an extra-schedular basis may 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. § 4.16(b). In December 2020, the Director of the Compensation Service provided an advisory opinion stating that the Veteran is not entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). It follows that the Board now has jurisdiction to adjudicate the issue on its merits, as the Director has made its required initial determination. See Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). The Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU. It is simply a decision that is adopted by the RO and reviewed de novo by the Board. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Accordingly, the Board must determine whether the evidence supports a finding that he is entitled to a TDIU under 38 C.F.R. § 4.16(b). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is any present impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. Age may not be considered as a factor in evaluating unemployability. 38 C.F.R. §§ 3.341, 4.19. The veteran’s service-connected disabilities, employment history, education and vocational attainment, and all other factors bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In order to prevail on an extraschedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or had difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. See Van Hoose v. Brown, 4 Vet. App. 261 (1993). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). According to a January 2009 VA examination, the Veteran was laid off from his job in 2007. At this examination, the Veteran also reported the following functional impairments: trouble driving a car, opening doors, using a computer (typing), writing, personal hygiene, shaving, sleeping and working with his hands. The Veteran’s injuries are in his right hand, which is his dominant hand. In May 2017, the Veteran was afforded another VA examination. This examination also reflected that the Veteran was not able to type or open doors. The VA examiner opined that with the Veteran’s disabilities, he was able to do light work. Light work was defined as exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. This examination was the subject of the Board’s November 2017 remand. Pursuant to the November 2017 remand, the Veteran was afforded additional VA examinations in March 2018. Regarding the Veteran’s wrist and hand conditions, the VA examiner concluded that the Veteran was able to conduct light work. However, the VA examiner did not provide a rationale defining what light work means. Regarding the Veteran’s peripheral nerve condition, the VA examiner concluded that this did not cause any work restrictions. In the Veteran’s May 2020 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), he stated that he was an engineer. In the September 2020 VA examination, the Veteran stated that his disabilities have an impact on his ability to perform occupational functioning and ordinary activities. Specifically, the Veteran reports experiencing pain and throbbing which results in numbness and a weak grip. The Veteran also states that he cannot tie his shoes, button pants, brush his teeth, cannot type, lift objects or write. As previously stated, the ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib, 733 F.3d 1350. The evidence reflects that the Veteran used to be an engineer and that due to his service-connected disabilities, he has difficulties opening doors as well as lifting and grabbing things, as well as using a computer and these activities may be necessary to work as an engineer. The March 2018 VA examiner opined that the Veteran’s wrist and hand conditions allow for light work but did not define what “light work” in the context of being an engineer. “[W]hen the Board conducts a TDIU analysis, it must take into account the individual veteran’s education, training, and work history.” Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). The Board therefore finds that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities rendered him unemployable. As reasonable doubt must be resolved in the favor of the appellant, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, Associate 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.