Citation Nr: 21040545 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 19-34 082 DATE: July 5, 2021 ORDER Entitlement to a total disability rating based upon individual employability (TDIU) prior to January 2, 2018, including on an extraschedular basis, is denied. Entitlement to a TDIU from January 2, 2018 is granted. FINDINGS OF FACT 1. Prior to January 2, 2018, the Veteran is not rendered incapable of securing and maintaining substantially gainful employment as a consequence of his service-connected disabilities, notably his right shoulder AC ligament sprain, lumbosacral strain, right wrist scar, and tinea versicolor. 2. From January 2, 2018, the Veteran's service-connected disabilities, to include right shoulder AC ligament sprain, lumbosacral strain, right wrist scar, and tinea versicolor, posttraumatic stress disorder (PTSD), tinnitus, right carpal tunnel syndrome, and right upper extremity scar associated with right carpal tunnel syndrome, render him unable to engage and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to January 2, 2018, the criteria for a TDIU have not been met, including on an extraschedular basis. 38 U.S.C. § 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.19. 2. From January 2, 2018, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Army from November 2007 to May 2014. The Board notes that, in addition to the Veteran's TDIU claim discussed below, the Veteran has disagreed with the RO's decision regarding his service connection claims for bilateral hearing loss, left carpal tunnel syndrome, and right ankle lateral collateral ligament sprain; his increased rating claims for his service-connected PTSD, right carpal tunnel syndrome, tinnitus, and right upper extremity scar; and his claims for an earlier effective date for his service-connected PTSD, right carpal tunnel syndrome, tinnitus, and right upper extremity scar. The Board notes that, according to the July 2020 VA Form 20-0996 Request for Higher-Level Review, the Veteran, through his representative, opted these issues into the AMA system. Therefore, the Board will not consider these issues below. 1. Entitlement to a TDIU prior to January 2, 2018, including on an extraschedular basis, is denied; entitlement to a TDIU from January 2, 2018 is granted. The Veteran contends that he is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. From November 3, 2016, the Veteran has been in receipt of a 20 percent rating for right shoulder AC ligament sprain, a 10 percent rating for lumbosacral strain, a noncompensable rating for right wrist scar due to cyst removal, and a noncompensable rating for tinea versicolor claimed as skin condition also claimed as rash. In addition to the service-connected conditions listed above, from January 2, 2018, the Veteran has also been in receipt of a 50 percent rating for PTSD, a 10 percent rating for tinnitus, a 10 percent rating for right carpal tunnel syndrome, and a noncompensable rating for right upper extremity scar associated with right carpal tunnel syndrome. The Veteran's noncompensable rating for right upper extremity scar associated with right carpal tunnel syndrome was severed in November 30, 2020. The Veteran is in receipt of a combined disability rating of 30 percent prior to January 2, 2018 and a 70 percent rating thereafter. Prior to January 2, 2018, the Veteran did not have at least one disability rated at least 60 percent disabling; he also did not have a combined rating of 70 percent or more for all his disabilities. Thus, the Veteran does not meet the schedular requirements for a TDIU prior to January 2, 2018. From January 2, 2018, as the Veteran has a combined rating of 70 percent or more for all his disabilities, the Veteran' meets the schedular requirements for a TDIU. Under 38 C.F.R. § 4.16(b), referral to the Director of Compensation Service for extra-schedular consideration requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed under 38 C.F.R. § 4.16 (b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2016); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor. 38 C.F.R. § 4.3. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a Veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether his or her service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). The Veteran contends that he is unemployable due to his service-connected disabilities. Based on the evidence in his record, as discussed in greater detail below, the Board finds that the Veteran's service-connected disabilities render him unable to secure and maintain gainful employment from January 2, 2018 but not prior to January 2, 2018. Factual Background Turning to the relevant evidence, according to the March 2020 VA Form 21-8940 Veterans Application for Increased Compensation based on Unemployability, the Veteran worked as a cavalry scout from 2014 to 2017 and later as a self-employed pool cleaner from May 2017 to August 2017. The Veteran last worked in August 2017. In the July 2017 VA examination, the examiner noted that the Veteran's right wrist scar, status post excision of ganglion cyst impacted his ability to work. Specifically, the examiner noted that the Veteran was limited from repetitive movements on the right wrist such as writing and prolonged keyboarding. In the September 2017 VA examination for the back, the examiner noted that the Veteran's lumbosacral strain affected his ability to work. Specifically, the examiner noted that the Veteran is limited to functional activities that include continuous bending, standing, and walking. The examiner also noted that the Veteran can perform any type of occupational task without significant restrictions. The Veteran also reported having functional loss which limited bending, standing, and ambulation during flare ups. In the October 2017 VA examination for skin conditions, the examiner noted that the Veteran's tinea versicolor did not impact his ability to work. In the February 2018 VA examination for peripheral nerves conditions, the examiner noted that the Veteran's right carpal tunnel syndrome affected his ability to work. Specifically, the examiner noted that the Veteran has difficulty with prolonged writing, typing, and gripping due ot his right carpal tunnel syndrome. In the February 2018 VA examination for PTSD, the VA examiner noted that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversations. The Veteran also reported that he is not working, and stated that his anxiety has made it difficult for him to go on job interviews. In November 2020, a private vocational consultant provided a vocational assessment based on her review of the Veteran's file as well as a telephone interview with the Veteran. The Veteran reported the following symptoms due to his service-connected disabilities: unable to stand for more than 45 minutes, walk for even a quarter mile, and sit for longer than 30 minutes due to his low back pain; impaired ability to use the right dominant hand for prolonged fine or gross manipulation such as writing, typing, and gripping; impaired concentration due to panic attacks, loss of motivation, and fatigue caused by nightmares due to psychiatric symptoms and back and shoulder pain. Based on the consultant's review of the Veteran's records, the consultant concluded that the Veteran's service-connected conditions rendered him unable to secure and follow substantially gainful employment, to include unskilled sedentary employment, from at least January 2018 to the present. The examiner opined that the Veteran's limitations in sitting, standing, walking, lifting, and utilizing his right upper extremity for repetitive fine and gross motor tasks due to his service-connected lower back condition, right shoulder and wrist conditions, and right wrist scar due to cyst removal preclude him from performing the full range of physical requirements of even sedentary employment since at least January 2018. Analysis Prior to January 2, 2018 As noted above, prior to January 2, 2018, the Board reiterates that the Veteran was in receipt of a 20 percent rating for right shoulder AC ligament sprain, a 10 percent rating for lumbosacral strain, a noncompensable rating for right wrist scar due to cyst removal, and a noncompensable rating for tinea versicolor claimed as skin condition also claimed as rash. Prior to January 2, 2018, his combined disability rating was 30 percent. The Board finds that entitlement to a TDIU is not warranted prior to January 2, 2018, as the evidence prior to January 2, 2018 does not show that the Veteran's service-connected right shoulder AC ligament sprain, lumbosacral strain, right wrist scar, and tinea versicolor inhibited his ability to maintain substantially gainful employment. The July 2017 VA examiner noted that the Veteran was limited from repetitive movements on the right wrist such as writing and prolonged keyboarding. However, the Board notes that the Veteran's work history as recently as August 2017 was that of a pool cleaner; therefore, he was not performing repetitive movements involving writing and prolonged keyboarding. The October 2017 VA examiner noted that the Veteran's tinea versicolor did not impact his ability to work. Most notably, the September 2017 VA examiner noted that while the Veteran was limited in continuous bending, standing, and walking due to his back condition, the VA examiner also noted that the Veteran was able to perform any type of occupational task without significant restrictions. Therefore, the medical evidence prior to January 2, 2018 discussed above does not show that the Veteran's service-connected right shoulder AC ligament sprain, lumbosacral strain, right wrist scar, and tinea versicolor inhibited his ability to maintain substantially gainful employment. Prior to January 2, 2018, there was no indication from his medical record that the Veteran was unable to perform tasks commensurate with his experience as a pool cleaner. Accordingly, a basis for the grant of TDIU on an extraschedular basis has not been presented at any point prior to January 2, 2018 and referral to the director is not warranted for the period on appeal prior to January 2, 2018. From January 2, 2018 However, from January 2, 2018, the Board finds that the Veteran's overall disability picture worsened. From January 2, 2018, the Board reiterates that, in addition to his service-connected right shoulder AC ligament sprain, lumbosacral strain, right wrist scar due to cyst removal, and tinea versicolor, the Veteran has also been in receipt of a 50 percent rating for PTSD, a 10 percent rating for tinnitus, a 10 percent rating for right carpal tunnel syndrome, and a noncompensable rating for right upper extremity scar associated with right carpal tunnel syndrome. The Veteran's noncompensable rating for right upper extremity scar associated with right carpal tunnel syndrome was severed in November 30, 2020. From January 2, 2018, his combined disability rating was 70 percent. The probative medical evidence above shows that the Veteran's service-connected disabilities inhibit his ability to maintain substantially gainful employment in a physical work environment and a sedentary work environment from January 2, 2018. The most notable probative evidence is the November 2020 vocational assessment. In November 2020, the provider concluded that the Veteran's physical limitations in sitting, standing, walking, lifting, and utilizing his right upper extremity for repetitive fine and gross motor tasks due to his service-connected lower back condition, right shoulder and wrist conditions, and right wrist scar due to cyst removal preclude him from performing the full range of physical requirements of even sedentary employment since at least January 2018. Furthermore, according to the February 2018 VA examiner, the Veteran has difficulty with prolonged writing, typing, and gripping due to his service-connected right carpal tunnel syndrome and his right wrist scar. In the Veteran's February 2018 VA examination, the Veteran also reported that he has anxiety that makes it difficult for him to go on job interviews. As such, the Board finds that the Veteran could not perform physical tasks commensurate with his work history on a basis that would allow him to maintain substantially gainful employment. Based on the above, the Board finds that the Veteran's overall disability picture impairs his ability to obtain and follow substantially gainful employment from January 2, 2018. Accordingly, the Board finds that the preponderance of the evidence supports the Veteran's claim for entitlement to a TDIU due to his service-connected disabilities, and TDIU is granted from January 2, 2018. In sum, a basis for the grant of TDIU on an extraschedular basis has not been presented at any point prior to January 2, 2018 and referral to the director is not warranted for the period on appeal prior to January 2, 2018. However, the preponderance of the evidence supports the Veteran's claim for entitlement to a TDIU due to his service-connected disabilities, and TDIU is granted from January 2, 2018. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.