Citation Nr: 21032744 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 12-35 123 DATE: May 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 30, 2014, is granted. FINDING OF FACT Prior to September 30, 2014, the Veteran's service-connected disabilities did render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU due to service-connected disabilities prior to September 30, 2014, have been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1962 to August 1996. The Veteran died in October 2020. The Veteran's spouse is the Appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge in July 2017. A transcript of the hearing is of record. The Board remanded this matter in November 2017. In a January 2020 decision, the Board denied this claim. The Veteran appealed the Board's January 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court vacated the January 2020 Board decision and remanded the issue of TDIU to the Board for further development. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 30, 2014 The Appellant contends that the Veteran was unemployable prior to September 30, 2014, as a result of his service-connected disabilities. The Board notes that the Veteran stated in the September 2013 VA Form 21-8940 that TDIU was due to his service-connected right shoulder condition. However, the Board will also consider any other service-connected disabilities, when determining whether the Veteran is unemployable. A TDIU rating may be assigned when the Veteran is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU may be assigned if the Veteran has two or more service-connected disabilities, when at least one is rated at 40 percent or more and the combined evaluation is 70 percent or more, or, if there is only one service connected disability that is rated at 60 percent or more. 38 C.F.R. § 4.16 (a). Disabilities resulting from common etiology or from multiple injuries incurred in action will be considered one disability for the purposes of one 60 percent disability or one 40 percent disability. Id. The Board may not consider any psychiatric impairment as the Veteran was not service-connected for a psychiatric disorder until September 30, 2014. Prior to September 30, 2014, the Veteran was in receipt of service connection for posttraumatic degenerative joint disease of the acromioclavicular joint, right, rated as 30 percent disabling prior to February 12, 2013, and 40 percent disabling thereafter; diabetes mellitus with nonproliferative diabetic retinopathy of the left eye and hypertension, rated as 20 percent disabling; peripheral neuropathy, right foot associated with diabetes mellitus with nonproliferative diabetic retinopathy of the left eye and hypertension, rated as 10 percent disabling; peripheral neuropathy, left foot associated with diabetes mellitus with nonproliferative diabetic retinopathy of the left eye and hypertension, rated as 10 percent disabling; and erectile dysfunction associated with diabetes mellitus with nonproliferative diabetic retinopathy of the left eye and hypertension, rated as noncompensable. The Veteran's combined disability rating, for the period on appeal, was 60 percent prior to September 30, 2014. Thus, the preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) are not met. Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be referred for consideration 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). Since, the Board cannot grant extraschedular TDIU claims in the first instance, the Board must specifically adjudicate whether to refer the case for consideration of extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); see also Barringer v. Peake, 22 Vet. App. 242 (2008). If a Veteran's disability rating does not meet the threshold set forth in 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). Previously, the Board referred the matter of a TDIU on an extraschedular basis to the Director of the Compensation Service. In November 2019, the Director of Compensation Service determined that entitlement to TDIU on an extraschedular basis was not established. The Director stated that in this case, after giving consideration to all relevant evidence, including but not limited to the Veteran's education and work history, the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment prior to September 30, 2014. Although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director of Compensation Service regarding extraschedular entitlement to a TDIU because the Court has determined that the Director of Compensation Service's decision is in essence a decision by an agency of original jurisdiction and is no different than a RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to TDIU. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran said that he last worked full-time in February 2006, and became too disabled to work in February 2006. It was noted that he took early retirement due to his right shoulder. The Veteran noted that he did not expect to receive disability retirement benefits or workers compensation. The evidence of record shows that the Veteran completed high school. He worked as a Trade Leader until 2006. He reported that he had earned $34,000 in 2005. In a November 2010 statement, the Veteran said that the pain in his shoulder was worse and simple movement of the arm brought pain. He said he had trouble grasping or holding things, and that sometimes the pain was so bad he would have severe headaches. In a December 2010 diabetes VA examination, it was noted that the Veteran had several complications of his diabetes including, nonproliferative retinopathy, mild peripheral neuropathy of the lower extremities, hypertension, and erectile dysfunction. The examiner determined that the Veteran's diabetes and its complications had no effects on his usual occupation. Regarding daily activities, the Veteran had to be near a toilet due to frequent urination. It was noted that he was an electrician but was now retired; he had retired in 2007. The Veteran was "eligible by age or duration of work; medical (physical problem)." The specific medical cause was described as painful right shoulder from old injury where the Veteran could no longer bend conduit or lift heavy objects. In a December 2010 joints VA examination, the examiner noted that the Veteran's right shoulder condition had significant effects on his usual occupation. The Veteran had problems with lifting and carrying, difficulty reaching, weakness or fatigue, decreased strength, upper extremity. Because of these issues the Veteran would be assigned different duties. Regarding daily activities, the Veteran had a range of issues with these depending on the activity. In a December 2012 VA Form 9, the Veteran said that he worked as an electrician, but could no longer work as an electrician due to his right shoulder disability. He said that he was unable to write well, could not lift over 10 pounds, and could not lift his arm over his head. He also said that he could "only work a part-time job on Saturday mornings." In a February 2013 shoulder and arm VA examination, it was noted that the Veteran's dominant hand was his right. The examiner determined that the Veteran could not do any work that required use of his right upper extremity. The Veteran told the examiner that he last worked until about 4 years ago as an electrician; however, due to weakness he was having trouble climbing ladders. Due to his right shoulder condition he was dropping things as his entire right upper extremity was weak. He was also no longer able to "pull wires" through the electrical conduit and that it was not safe to be on a ladder as he essentially had no use of his right upper extremity. In fact, the examiner noted that the Veteran was unable to shake his hand that was offered several times during the visit. The examiner noted that the Veteran also had an untreated right cubital tunnel syndrome, not likely related to his right shoulder condition. He also was blind in his right eye, but his vision was good enough that he did drive 75 miles to attend the examination. The examiner said that it was obvious the Veteran's mental functions were good so that, in reality, even though he had no use of his right upper extremity, there were other things (besides being an electrician) that he could do. The examiner stated that while it was agreed the Veteran could no longer as an electrician due to his right shoulder condition, as the Veteran's left arm was functional and as he had good mental functions, the examiner could not opine that the Veteran was 100 percent disabled. In a June 2014 shoulder and arm VA examination, the examiner noted that the Veteran's right shoulder condition impacted his ability to work. The examiner said that the Veteran used to be an electrician, but now he was not even able to pull wires or work with his right hand because of the shoulder pain. The Veteran stopped working 6 to 7 years ago, and that he could not even write his name with his right hand. In a September 2014 VA Form 9, the Veteran argued that all of his diagnoses prevented him from working. The Veteran said he was unable to bend or climb and that his vision problems prevented him from seeing well enough to perform his job. At the July 2017 Board hearing, the Veteran testified that his job as a Trade Leader involved electrician work and that his right shoulder disability caused significant functional impairment. The Veteran said that he was right hand dominant and that due to his right shoulder condition and blindness in his right eye that no one would hire him. The Board notes that in 2012, the Veteran said he could only work part time on Saturday mornings. There is no indication whether his income was under the applicable poverty threshold at this time. Therefore, the Board does not need to consider any marginal employment. Additionally, based on this favorable decision, the lack of a discussion of marginal employment does not prejudice the Veteran. (Continued on the next page) Overall, and giving the Veteran the benefit of the doubt, the Board finds that the Veteran service-connected conditions resulted in functional impairment severe enough to preclude him from obtaining or maintaining gainful employment prior to September 30, 2014. Specifically, the Veteran stopped working in February 2006 due to his right shoulder condition; the evidence shows that the Veteran retired early due to his medical condition. The Board also notes that the Veteran is right hand dominant and only worked as an electrician with a high school education, suggesting that opportunities for any other type of substantially gainful employment would have been minimal. More specifically, it does not seem reasonable that the Veteran would have been able to find a different trade of work beyond something labor focused when he is right-handed, with only a high school education. Finally, the Board notes that the VA examiners found the Veteran's right should condition to significantly impact his ability to work, regardless of whether they found that the Veteran was 100 percent disabled. Overall, the Board finds this evidence highly probative, along with the Veteran's lay statements that he had trouble bending, climbing, lifting, gripping items, and seeing due to his multiple disabilities, that he could no longer work due to his service-connected conditions prior to September 30, 2014. Based on the evidence of record, the Board finds that the Veteran was unemployable prior to September 30, 2014, due to his service-connected disabilities. For the foregoing reasons, prior to September 30, 2014, and giving the Veteran the benefit of the doubt, the Veteran's service-connected disabilities did preclude him from substantially gainful employment. In conclusion, the evidence is at least in equipoise for TDIU prior to September 30, 2014. 38 U.S.C. § 5107 (b). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saudiee Brown 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.