Citation Nr: 22010652 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 15-13 550 DATE: February 24, 2022 ORDER A referral for extraschedular consideration of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied; and entitlement to TDIU benefits is denied. FINDING OF FACT During the entire period on appeal, there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable because of his service-connected disabilities, and the evidence persuasively supports a finding that the Veteran was not unable to secure or maintain substantially gainful employment consistent with his education, work history, skills, and training; and therefore, there is no benefit of the doubt to resolve in the Veteran's favor. CONCLUSION OF LAW Referral for extraschedular consideration of a TDIU is not appropriate, and the criteria for entitlement to a TDIU due to service-connected right thumb/hand and wrist injury, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to September 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matters in February 2019 and April 2021 for further development. The most recent Board remand directed the Agency of Original Jurisdiction (AOJ) to engage in further development, finding that the issue of TDIU was raised by the record in connection with the Veteran's claim for increased rating for residuals of a right thumb laceration with tendon graft and subluxation of the MP joint. The AOJ completed the development requested by the Board and declined to refer the issue of TDIU to the Director of Compensation Services for extraschedular consideration, finding that the evidence did not support that the Veteran was unemployable. The Board finds the AOJ substantially complied with its remand directives and the matter has now been returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to total disability based on individual unemployability (TDIU) The Board previously found the question of entitlement to TDIU was raised by the record insofar as an October 2019 VA examination evaluating the severity of the Veteran's residuals of a right thumb laceration with tendon graft and subluxation of the MP joint indicated that the disability impacted the Veteran's ability to work. Rice v. Shinseki, 22 Vet. App. 447 (2009). Legal Criteria A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19. Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. at 452 (2009). A veteran need not show complete unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment. VanHoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court noted that "substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court noted that attention must be given to the veteran's occupational history, education, skill and training, whether the veteran has the physical ability to perform occupational activities, and whether the veteran has the mental ability to perform occupational activities. Analysis The Veteran is service-connected for right wrist ulnar and median neuropathy at 40 percent, residuals of right thumb laceration with tendon graft and subluxation of the MP joint at 10 percent, tinnitus at 10 percent, and several other conditions rated as noncompensable. His combined rating is 50 percent. He does not meet the criteria for TDIU on a schedular basis at any point during the period on appeal. 38 C.F.R. § 4.16(a). Per the Board's April 2021 remand directive, the AOJ sent the Veteran a VA Form 21-8940 in April 2021, which requests information regarding income and employment history. The Veteran's representative was copied on the correspondence. The Veteran did not return the form. The AOJ subsequently found that a TDIU was not warranted and declined to refer the matter to the Director of Compensation Service for extraschedular consideration. The AOJ noted that the Veteran had not returned a completed VA Form 21-8940 and that VA treatment records and a recent VA examination indicated the Veteran was working. However, there was no information regarding hours worked, income, or education level or past work experience. The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board's sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence. If the Board finds "sufficient evidence" to substantiate a "reasonable possibility" that a veteran may be unemployable because of service-connected disabilities, then the proper course of action is to remand the claim for referral to the Director of Compensation Service for an advisory opinion for extraschedular consideration. See 38 C.F.R. § 4.16 (b). In contrast, if the Board determines that a referral is not appropriate, a different analysis must be made. In particular, the Court in Snider v. McDonough, No. 19-6707 (CAVC November 19, 2021), held that if the Board denies a referral, it must make two determinations: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable. The first inquiry, the question of the referral, is a factual finding based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. See Ray v. Wilkie, 31 Vet. App. 58. Therefore, the Board will consider first whether referral is appropriate and, if not, whether TDIU benefits are warranted. Evidence Turning to the evidence of record, regarding the economic and noneconomic factors discussed in Ray, the evidence reflects that the Veteran has a high school education, having completed his GED. As to his employment history, the evidence reflects that he worked at a concrete factory since 1995 assisting in marking and measuring parts in the manufacturing process. His previous work history is also primarily in manufacturing. The evidence reflects the Veteran maintained his employment throughout nearly the entire duration of the period on appeal. In an October 2014 VA mental health examination, the Veteran reported that he was working. Specifically, the examiner noted the Veteran had worked for a concrete company continuously since 1995, and that he "was looking forward to retirement in the coming years." The Veteran's June 2018 VA Form 21-4238 Statement in Support of Claim included an attached letter from his employer, which stated that the Veteran worked at a concrete manufacturing plant, marking and measuring component parts, and utilizing an overhead crane to load cable racks with spools of cable. The Veteran underwent a VA examination of the hand and fingers in October 2019, which noted he worked as an "inspector/marker for a concrete company." The Veteran described his limitations to the VA examiner, noting it was difficult to grasp and grip things like a coffee cup for extended periods. The Veteran stated he experienced numbness and tingling in the dorsal lateral aspect of the wrist. The Veteran stated flare-ups of the right hand occur 3-4 times per month and can be moderate to severe, lasting 1-2 hours. He noted the flare-ups are precipitated by repetitive motion like pinching and holding on to objects such as coffee cups, and fine motor activities such as buttoning a shirt. The Veteran reported functional loss primarily in terms of impact on recreational activities, noting he cannot play baseball or football due to being unable to grasp the ball, and cannot hold onto an opponent when tackling them. The Veteran discussed his previous jobs with the October 2019 VA examiner, and noted the types of activities that had been difficult for him. He noted he had worked in construction, in which his right hand was used in a repetitive circular fashion or spinning motion to tighten objects; he indicated this caused moderate to severe pain. He did not specifically report issues with his current job, except to note that he has stiffness in the morning, and moderate to severe pain during flare-ups as noted previously. The examiner indicated the functional impact of the Veteran's condition on manufacturing work, stating the Veteran would be unable to grasp for more than five to ten minutes, and unable to turn his right hand in a circular motion. This latter limitation noted by the examiner appears to have been based directly on the Veteran's report of the issues he encountered in his construction job prior to working at the concrete company. VA medical records in 2020 continue to reflect that the Veteran was working at the concrete company; however, the Veteran was initially laid off at the start of the COVID-19 pandemic and much of his medical records thereafter indicate his plans, desires, and concerns surrounding returning to work. The Veteran vacillated between a desire to return to work and concern over his own risk due to his age and comorbidities (specifically a prior myocardial infarction in 2018). For example, in March 2020 his physician informed the Veteran that he would be considered high risk for COVID complications given his age and comorbidities, and recommended he avoid both work and social contacts. A letter was sent to his employer. In April 2020, with the extension of stay-at-home orders in his state, the Veteran requested his provider call his employer to inform them the Veteran was high risk and should continue to stay home. His employer was noted to be the same concrete company as indicated in previous records, and his job was noted to be a "marker" engaging in measuring and running numbers the same job mentioned during prior VA examinations. In May 2020 the Veteran noted that his state's stay-at-home order would end, and he would be ready to go back to work. Later that same month, however, the Veteran reported he would investigate Social Security disability as he reported being unable to work in his field due to COVID risk. Another letter was faxed to his employer recommending he remain off work due to social distancing recommendations during the pandemic. Then, in June 2020, a medical record notes, "patient has been off work due to distancing recommendations given his age and comorbidities. He had planned to return June 1st however as pandemic remains active, he wanted to discuss options... he is concerned about his risk for complications with the virus and is considering filing for disability." The Veteran requested to delay his return to work to the beginning of July rather than June. He was cleared to return to work on July 6. His return was again delayed; in October 2020, the Veteran reported he was scheduled to return to work the following week but was concerned because his boss had tested positive for COVID. He stated he planned to retire soon in December 2020. A December 2020 medical note confirmed the Veteran had recently retired. Analysis After reviewing the probative evidence of record, the Board finds that although the service-connected right thumb/hand and right wrist conditions have caused some functional impairment commensurate with the degree of compensation, the evidence of record does not substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities at any time during the period on appeal, and the evidence does not establish that the Veteran was unable to secure or maintain substantially gainful employment due to service-connected conditions. The probative evidence of record shows that the Veteran was consistently employed at the concrete company until March 2020, when he was temporarily laid off during the COVID-19 pandemic, and that he subsequently delayed then ultimately declined to return to work due to his concerns regarding exposure to COVID-19. The Veteran repeatedly sought letters of excusal from his medical providers to provide to his employer regarding his heightened risk status for COVID complications. Ultimately, he decided to retire. There is no additional evidence of record to contradict the Veteran's own reports of employment. As previously noted, the Veteran was sent the VA Form 21-8940 and asked to provide information regarding his income and employment history, but never returned the form. In this respect, the duty to assist is a two-way street. A claimant may not passively wait for assistance in building a claim, but rather must actively assist VA in assessing his disabilities, for example, by submitting information relevant to his employment history, which may provide a better understanding of the impact of his disabilities on his employment. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In short, the Veteran was given the opportunity to aid VA in developing his claim but failed to do so. The Veteran has been granted sufficient opportunity to supplement the record to support a claim for TDIU. The evidence also reflects that the Veteran has never specifically contended he was unable to work due to his service-connected conditions and has never contended his employment at the concrete company was not substantially gainful. Although he noted functional limitations in the October 2019 VA examination, as referenced in the Board's prior remand, these were limitations he stated had caused him problems in a previous construction job (turning the right hand in a repetitive circular fashion). Based on the Veteran's sustained employment with the concrete company from 1995 onward (per his own reports), it does not appear that any functional limitations prevented him from performing those job duties. For these reasons, the evidence does not substantiate even a reasonable possibility that the Veteran was unemployable by virtue of the service-connected disabilities; therefore, a referral to the Director of Compensation Service for consideration of a TDIU must be denied. Although the Board finds referral for extraschedular consideration is not warranted, the Board nonetheless is required to consider the merits of the Veteran's TDIU appeal. See Snider v. McDonough, No. 19-6707 (CAVC Nov. 19, 2021). In that regard, the Board finds TDIU is not warranted here on an extraschedular basis. The Veteran's service-connected thumb/hand and wrist disabilities do not, either alone or in combination, render the Veteran unemployable. As discussed above, there is no evidence that the Veteran was unable to obtain or maintain substantially gainful employment by virtue of his service-connected disabilities during the period on appeal; in contrast, the evidence shows the Veteran maintained consistent employment and only ceased working due to his concern about his risk of COVID complications. The Veteran failed to participate in the requested development of his claim by returning the VA Form 21-8940 and thus the Board lacks information regarding his income; however, the Board has no evidence that could indicate his employment was not substantially gainful. Moreover, given his education and background, his employment is commensurate with his skill set and experience. Accordingly, the Board finds that a TDIU is not warranted, including referral to the Director of the Compensation Service for special consideration on an extra-schedular basis. As the evidence persuasively favors against individual employability due to service-connected conditions, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.