Citation Nr: 21039829 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 04-33 184 DATE: July 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to March 4, 2005, is granted. REMANDED Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is remanded. FINDING OF FACT Prior to March 4, 2005, the Veteran was precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU for the period prior to March 4, 2005, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1980 to July 1992. With respect to the above two claims, the Veteran's representative submitted argument in September 2016 which were referred to the Agency of Original Jurisdiction (AOJ) in the Board's December 2016 remand. The AOJ was instructed to forward the Veteran and his representative a VA standard form to formally file his new claims. The action was completed by the AOJ in December 2016, but the claim form was not submitted by the Veteran or his representative. In a September 2017 decision, the Board determined that since no claims for either TDIU or SMC had been submitted, the Veteran did not formally file new claims for benefits, and no further action was needed by the Board with respect to the above two claims. The Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 decision, the Court reversed the Board's September 2017 decision implicitly determining that it lacked jurisdiction over the matters of entitlement to SMC and to TDIU prior to March 4, 2005, and remanded both issues for further proceedings. Entitlement to a TDIU prior to March 4, 2005. The Veteran contends that during the period prior to March 4, 2005, he was unemployable because of the severity of his service-connected disabilities and, therefore, entitled to a TDIU. Despite working full-time as an electronics technician, the Veteran maintains that his work amount to a protected environment in which he was given accommodations to perform his work tasks, took frequent breaks during the workday, received assistance in his job tasks, and frequently took leave from work due to his service-connected disabilities. For the reasons that follow, the Board finds that an award of TDIU for the period prior to March 4, 2005, is warranted. The claim is granted. Total disability will be considered to exist when there is present any 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran has met the schedular criteria for TDIU throughout the appeal period. 38 C.F.R. § 4.16 (a). He has been in receipt of a combined 80 percent disability rating since July 14, 1992, with compensable disability ratings for postoperative right hand carpal tunnel syndrome, postoperative left hand carpal tunnel syndrome, and degenerative changes to the thoracic spine. The central inquiry in a claim for TDIU 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). The Veteran submitted multiple copies of an undated letter from his former direct supervisor who worked with him from 1993 to 1995, and again from 1997 until 2005. The supervisor stated the Veteran was hired in September 1993, and he was aware the Veteran had hand injuries at the time he began working. The Veteran was provided accommodations to allow him to work in his assignment as an electronics technician. The supervisor stated that he provided the Veteran with voice recognition software for computer use, as well as an adapted computer mouse. He was also provided modified hand tools, and there were restrictions placed on the use of his hands as required. The supervisor stated that when problems with the Veteran's use of his hands arose, he was instructed to take breaks as needed and to get assistance from other technicians. The supervisor also stated he was aware of the Veteran's constant hand problems, having been in charge of approving the Veteran's annual and sick leave requests. The Veteran also submitted an April 2021 vocational assessment report from a private rehabilitation counselor. The report noted that the Veteran worked as an electronics technician for the United States Geological Survey from approximately March 1993 until 1995, and again from April 1997 until March 2005. He also worked as an electronics technician for the United States Federal Aviation Association from approximately 1995 until 1997. The rehabilitation counselor's report noted that the Veteran maintained and installed electronic devices including radios, sonar devices and computers in naval ships. His job duties included packaging and preparing equipment within the warehouse, preparing devices to be installed, and traveling to ships to install equipment. While working in the warehouse, his job tasks included repairing electronic devices, packaging items, material handling, and routine clerical tasks. The rehabilitation counselor stated that employees in this job were required to lift approximately 70 pounds or greater to perform essential job tasks. The rehabilitation counselor's report noted that due to the Veteran's limitations resulting from his bilateral upper extremity conditions, he received extensive accommodations from his work to maintain his employment. He noted the Veteran was absent approximately 300 hours per year due to his service-connected disabilities. The rehabilitation counselor concluded that given the accommodations afforded the Veteran, he did not believe the Veteran was engaged in substantially gainful employment but was rather working in a sheltered work environment. He stated the Veteran was only able to maintain his employment due to the extensive accommodations provided by his employers. The rehabilitation counselor stated that these accommodations and tolerance for the Veteran's extensive time off were "inconsistent with the standards and expectations of competitive employment." The question as to whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board finds the April 2021 vocational assessment probative and concludes that during the period on appeal the Veteran was employed in a protected work environment until he stopped working in March 2005. That assessment noted that, as a result of his bilateral upper extremity disabilities, the Veteran received "extensive accommodations" from his employer and was absent approximately 300 hours per year because of those disabilities. Given those accommodations, the Veteran was not engaged in substantially gainful employment but was working in a sheltered work environment. The Veteran's entire employment career has been working as an electronics technician under circumstances in which he was provided with extensive accommodations to allow him to perform his work tasks. The evidence of record shows he has no other physical or sedentary job skills, or that he has held any other type of job. In view of the totality of the evidence, the Board finds that the Veteran's service-connected disabilities as likely as not rendered him unemployable prior to March 4, 2005. Therefore, the benefit of the doubt is resolved in the Veteran's favor. REASONS FOR REMAND Entitlement to SMC based on loss of use of a creative organ is remanded. The Veteran maintains that he is entitled to SMC due to his service-connected disabilities because the disabilities have resulted in obesity and other non-service-connected medical conditions that have led to loss of use of a creative organ. He has submitted a February 2021 private medical examiner's opinion concluding that bilateral carpal tunnel syndrome "is at least one of the causal factors of his erectile dysfunction." Remand is needed to obtain a thoroughly reasoned VA examiner's opinion addressing whether "the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of" a creative organ. 38 U.S.C. § 1114 (k). The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate examiner addressing the question of whether the Veteran has suffered the loss of use of a creative organ due to his service-connected disabilities. In answering this question, the examiner is asked to specifically address the Veteran's contentions that his service-connected disabilities have resulted in obesity and other nonservice-connected medical conditions which then contributed to this loss of use. A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.