Citation Nr: 25008045 Decision Date: 06/17/25 Archive Date: 06/17/25 DOCKET NO. 06-20 909 DATE: June 17, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted effective June 23, 2005. FINDING OF FACT Since June 23, 2005, the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis effective June 23, 2005 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). This issue was previously remanded by the Board on several occasions, most recently in February 2025. The Board referred the case to the Director of Compensation Service for extraschedular consideration of a TDIU prior to May 8, 2019. In a March 2025 memorandum, the Director denied entitlement to an extraschedular TDIU. Accordingly, the Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU on an extraschedular basis prior to May 8, 2019. A TDIU rating may be assigned, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Prior to May 8, 2019, the Veteran was service connected for the following disabilities: bilateral hearing loss at 0 percent, scar status post ganglion removal left wrist at 10 percent, retained metal fragment left wrist at 10 percent, painful scarring of the left wrist at 10 percent, and tinnitus at 10 percent. Therefore, prior to May 8, 2019, the Veteran did not meet the schedular requirements for TDIU because he did not have a single disability rated at 60 percent or more nor was his combined disability rating at 70 percent. Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. In February 2025 the Board remanded the case to the Director who determined that entitlement to TDIU on an extraschedular basis was not warranted. The Board notes that the Director's opinion is not evidence, it is a decision that is reviewed de novo by the Board. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). In other words, it is not binding on the Board. The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran's education is limited. He attended only one year of high school. His primary employment was as a security officer and truck driver. See e.g., June 2005 VA Form 21-8940 and May 2013 VA Form 21-8940. An August 2002 VA treatment record noted that the Veteran worked as a security guard riding a golf cart. It was necessary for him to open and close gates, so he wore a wrist brace for support and pain reduction. An October 2002 VA treatment record noted pain in the left wrist when lifting packages. An April 2003 VA treatment record noted that the Veteran worked full time as a security guard but experienced problems with driving the truck during work. In an October 2004 statement, the Veteran reported that he lost most of his strength in the left wrist. In a January 2006 VA Form 21-4192, the Veteran's employer reported that the Veteran was terminated from his position as a security guard because he was no longer needed. In a May 2006 VA Form 21-4192 the Veteran's employer reported that the Veteran quit because of too much standing. A September 2011 VA examination noted that the Veteran's left wrist scar did not impact his ability to work. A December 2010 VA treatment record noted occupational therapy for the left hand and decreased strength. In a July 2012 VA examination, functional impact of the Veteran's left wrist on his ability to work was described as "can't use the hand." In a May 2013 VA Form 21-8940 the Veteran reported that he was struggling with everyday activities such as bathing, dressing, and eating. He reported that he could not use utensils properly and every day was a struggle. A July 2013 VA examination noted that the Veteran's left wrist scar did not impact his ability to work. In a February 2014 VA Form 21-4192 the Veteran's employer reported that the Veteran voluntarily resigned from his position as a security officer. In another February 2014 VA Form 21-4192 the Veteran's employer reported that it was unknown why the Veteran left his position as security. He was a no call/no show for work. In a May 2016 VA wrist examination functional impact of the Veteran's left wrist on his ability to work was described as "physical limitations with increased use." A January 2017 VA treatment record noted occupational therapy and pain of the left hand. In a January 2019 VA wrist examination functional impact of the Veteran's left wrist was described as "physical limitations with increased use." A January 2019 VA examination noted that the Veteran's left wrist scar did not impact his ability to work. An April 2019 VA hearing loss and tinnitus examination described functional impact of the Veteran's hearing loss disability as difficulty hearing everyday conversation and that his tinnitus could interfere with his sleep. Based on the above, the Board finds that entitlement to a TDIU on an extraschedular basis from June 23, 2005 is warranted. The Veteran's work history is limited. He was primarily employed as a security officer and truck driver. These positions are unskilled and very physical in nature. The Veteran's left wrist disability was noted to have physical limitations with increased use. The Veteran's ability to drive safely may be compromised by the lack of strength in his left hand. Further, the Veteran's left wrist disability would likely impact his ability to work as a security guard, such as in the operation of gates, use of motor vehicles, and lifting and carrying items for prolonged periods of time. His left wrist disability may also compromise safety if employed as a security officer or truck driver. Additionally, the skills associated with the Veteran's primarily physical work history may be difficult to transfer to an office setting. Skills such as typing would likely prove difficult over prolonged periods of time due to physical limitations and decreased strength associated with the left wrist. The Board notes that the Veteran was employed as a security officer from February 2006 to October 2007, February 2007 to February 2008, and November 2008 to January 2009. See February 2014 VA Form 21-4192. However, during these periods of employment, the Veteran's earned income did not exceed the poverty threshold for one person according to the U.S. Department of Commerce, Bureau of the Census. Therefore, these periods of employment are considered "marginal employment" and not "substantially gainful employment." See 38 C.F.R. § 4.16 (a)(5). Accordingly, the Board finds that the evidence does not persuasively weigh against finding that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. Thus, resolving doubt in favor of the Veteran, the Board finds that entitlement to a TDIU on an extraschedular basis is warranted effective June 23, 2005. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dennis, 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.