Citation Nr: 21021997 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 10-16 434 DATE: April 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a bilateral hand disability, to include arthritis and carpal tunnel syndrome, and to include as secondary to cervicalgia, lower neck pain is remanded. FINDING OF FACT The preponderance of the evidence supports that the Veteran’s posttraumatic stress disorder (PTSD) renders him unable to obtain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1982 to Mach 1990. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from January 2009 and August 2011 rating decisions issued by the Agency of Original Jurisdiction (AOJ). The appeal was most recently remanded in January 2019 for further development to include referral to the VA Director of Compensation and Pension Services (Director) for extraschedular consideration of the TDIU claim and obtaining adequate medical opinions as to the nature and etiology of the Veteran’s bilateral hand disabilities. The Director provided her determination in February 2021. Thus, the Board determines that there has been substantial compliance with the January 2019 remand directives as to the TDIU claim, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). To the extent that the requested development was not substantially complied with regarding the claim for service connection for bilateral hand disabilities, those claims are not ready for appellate review and are addressed in the Remand portion of this decision. Id. Entitlement to a TDIU TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran’s service-connected disabilities are rated at a combined 100 percent disabling for the entire period on appeal. Though the Veteran has been evaluated at a combined 100 percent for the entire appeal period, the matter of TDIU is not moot because a TDIU based on a single service-connected disability alone may result in additional benefits (i.e., special monthly compensation, or SMC), even if a 100 percent combined schedular evaluation is in effect. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). Under 38 U.S.C. § 1114 (s), SMC is payable at the housebound rate where the veteran has a single service-connected disability rated as 100 -percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 C.F.R. § 3.350 (i). In Bradley, the Court held that 38 C.F.R. § 3.350 (i) permits a TDIU rating based on a single disability to satisfy the statutory requirement of the 100 percent rating. See 22 Vet. App. at 280; see also Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2011) (“A total disability rating based on individual unemployability that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of ‘a service-connected disability’ because that requirement must be met by a single disability.”). Here, the Veteran is service-connected for the following: sleep apnea (rated as 50 percent disabling from November 1, 2008); PTSD (rated as 50 percent disabling from November 1, 2008); migraine headaches (rated as 30 percent disabling from November 1, 2008); radiculopathy, left lower extremity (rated as 30 percent disabling from February 22, 2017); DDD of the lumbar spine (rated as 20 percent disabling from November 1, 2008); DJD of the cervical spine (rated as 30 percent disabling from November 1, 2008 and 20 percent disabling from February 22, 2018); DJD of the right knee, left bicep tendonitis, right plantar fasciitis, left ankle injury residuals, hypothyroidism, instability of the left knee, and DJD of the left knee (each rated as 10 percent disabling from November 1, 2008); right lower extremity radiculopathy (rated as 10 percent disabling from February 22, 2018); and left ear hearing loss, hemorrhoids, erectile dysfunction and surgical scars (each with noncompensable ratings). At no time during the period on appeal was any service-connected disability individually rated at 60 percent. Thus, no single disability rendered the Veteran eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In February 2021, the VA Director of Compensation Service responded to a request for consideration of whether any of the Veteran’s service-connected disabilities independently warranted an extraschedular TDIU. The February 2021 memorandum from the Director of Compensation Service stated that entitlement to TDIU on an extraschedular basis was not warranted. Since the Director determined that entitlement to an extraschedular TDIU was not warranted, the Board now has jurisdiction to decide the issue. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board notes that it does so while placing no weight on the findings of the Director of Compensation Service, as that is a non-binding administrative determination and does not constitute medical evidence. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The only remaining issue is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability. The Board notes, a March 2013 VA opinion found that the Veteran is unemployable based solely on the effects of his service-connected PTSD. The examiner explained that the Veteran’s high level of anxiety, irritability, and anger coupled with concentration issues would render him unable to secure or maintain gainful employment. The examiner noted that the Veteran would need a job with no contact with customers and no need for concentration. The examiner maintained this position when he examined the Veteran again in April 2014. The Veteran’s occupational history is comprised of work as a police officer, security guard, and grounds keeper. The Veteran’s educational history reveals a college-level education. In April 2014, the Veteran competently and credibly reported that his father-in-law secured his final job and noted that he did not have much contact with people in that job. His work history reflects less and less public facing jobs as his career progressed towards its end in September 2012. With consideration given to the Veteran’s educational level and employment background, the Board reasons that the Veteran’s PTSD, on its own, renders him unemployable. While his education and work history would indicate the ability to perform physical and sedentary work, the symptoms of his service-connected condition establish that he cannot concentrate or interact with others, thus, any type of work for which he has transferrable skills is precluded. Therefore, the Board finds that a total disability rating due to individual unemployability is appropriate under 38 C.F.R. § 4.16(b). REASONS FOR REMAND Entitlement to service connection for bilateral hand disabilities, to include arthritis and carpal tunnel syndrome, and to include as secondary to cervicalgia, lower neck pain is remanded. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, supra. Regrettably, additional development is necessary before the Veteran’s claim can be finally adjudicated. The Board notes that the Veteran has been diagnosed with arthritis, carpal tunnel syndrome, residuals of a left finger fracture, left ulnar neuropathy, and right-hand strain. In the January 2019 remand, the Board requested the AOJ obtain an opinion as to the etiology of any currently diagnosed bilateral hand disabilities. In January 2021, the Veteran was afforded a VA examination. The VA examiner noted that the Veteran’s symptoms did not meet the diagnostic criteria for any disability other than left ulnar neuropathy. The examiner found there was no evidence the Veteran’s existing symptoms were related to his service or service-connected disabilities. However, the examiner did not address the Veteran’s other diagnoses of record. Therefore, further remand is required to ensure compliance with the January 2019 remand directives. The matters are REMANDED for the following action: 1. Associate with the claims file all outstanding VA treatment records. 2. Thereafter, forward the entire claims file in electronic records and a copy of this remand to an appropriate VA examiner for an addendum opinion addressing the etiology of any current bilateral hand disabilities. If examination is indicated, it should be scheduled in accordance with applicable procedures. For each diagnosis present at any time throughout the pendency of the claim, to include arthritis, carpal tunnel syndrome, residuals of a left finger fracture, left ulnar neuropathy, and right-hand strain, the examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the disability began in or is related to his military service. For each diagnosis present at any time throughout the pendency of the claim, to include arthritis, carpal tunnel syndrome, residuals of a left finger fracture, left ulnar neuropathy, and right-hand strain, the examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that he disability is caused or aggravated by the Veteran’s service connected neck disability. The examiner should note aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between his active service and any hand disability present during the pendency of this claim and appeal. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. After ensuring compliance with these objectives, the AOJ should readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.