Citation Nr: 25008244 Decision Date: 06/23/25 Archive Date: 06/23/25 DOCKET NO. 19-37 678 DATE: June 23, 2025 ORDER A total disability evaluation based on individual unemployability (TDIU) is granted from February 26, 2018, which is the period the Veteran qualifies for an schedular evaluation. REMANDED An evaluation in excess of 20 percent for a right shoulder disability is remanded. An evaluation in excess of 20 percent for a left shoulder disability is remanded. An evaluation in excess of 10 percent prior to January 8, 2025, for right upper extremity carpal tunnel syndrome is remanded. An evaluation in excess of 30 percent beginning January 8, 2025, for right upper extremity carpal tunnel syndrome is remanded. An evaluation in excess of 10 percent prior to January 8, 2025, for left upper extremity carpal tunnel syndrome is remanded. An evaluation in excess of 20 percent beginning January 8, 2025, for left upper extremity carpal tunnel syndrome is remanded. A TDIU prior to February 26, 2018, is remanded. FINDING OF FACT The Veteran was unable to secure or follow a substantially gainful occupation based on his service connection bilateral carpal tunnel syndrome. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1994 to July 1996. These matters are before the Board of Veterans' Appeal (Board) from July 2017 and November 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2023 decision, the Board denied the Veteran's claims for increased disability ratings. See August 2023 Board Decision. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2024 Joint Motion Partial Remand (Motion), the Court remanded the case to the Board for readjudication. In July 2024, the Board remanded this matter for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. TDIU. The Veteran seeks a TDIU and contends that the pain from the carpal tunnel syndrome in his hands precludes him from focusing on any occupation including a sedentary occupation. In a February 2021 statement, the Veteran asserted that he was taking a computer networking course after he took disability retirement from a previous employment. He had to stop the course because he could not focus. He Reported that the pain is 5 out of 10 constantly, and 8 out of 10 during flare-ups. numbness. The pain and numbness inhibit him from washing dishes, putting on a belt, opening closing jars, etc. He reported a jar slipped through his fingers and shattered on the floor because he could not open it. He reported having difficulty holding a phone up to his ear for an extended time. He reported the pain is very distracting and makes him cautious with movements. He reported being unable to envision returning to work. His attorney argues that the carpal tunnel syndrome causes pain which erodes his manual dexterity and interferes with his ability to write, type use computers, and perform basic activities of daily living. He last worked in any capacity in March 2012 as a Senior Systems Engineer for a telecommunications company. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. For the purposes 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, 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(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected, described in chronological order: Persistent depressive disorder, rated 30 percent from April 2016; Right hand carpal tunnel syndrome, rated 10 percent from April 2016 and 30 percent from January 2025; Left hand carpal tunnel syndrome, rated 10 percent from April 2016 and 20 percent from January 2025; Left elbow tendinitis (Diagnostic Code 5206), rated 10 percent from April 2016; Migraine headaches, rated 10 percent from April 2016; Bilateral plantar fasciitis, rated 10 percent from February 2018; Left shoulder rotator cuff tendonitis, rated 20 percent from February 2018; Right shoulder strain with rotator cuff tear repair, rated 20 percent from February 2018; Linear scars of the right shoulder, rated 0 percent from February 2018; and Left elbow limited pronation, rated 20 percent from July 2024. The combined rating is 60 percent from April 2016, 80 percent from February 2018, and 90 percent from January 2025. The Veteran does not have one disability rated at 40 percent or a combined disability rating of 70 percent prior to February 2018. Beginning February 2018, disabilities of one or both upper extremities combine to more than 40 percent. Accordingly, beginning February 26, 2018, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted during the period where the disabilities qualify for schedular consideration. In his February 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that his shoulders and carpal tunnel syndrome preclude him from securing or following any substantially gainful occupation. He reported having jobs in the information technology field from 2007 to March 2012. His income was well above the poverty threshold. He reported completing 4 years of college. He completed a bachelor's degree in business management, and studied for a Master of Science and Information Systems degree, but did not complete the degree. In 2017, he took a computer programming course, but he had to stop about two-thirds of the way through due to his service-connected conditions. The Board finds that the Veteran has skills that would enable him to secure or follow a substantially gainful occupation. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his bilateral carpal tunnel syndrome. The Veteran reported pain, difficulty focusing on work, and difficulty gripping and holding objects. He reported needing to take care with handling anything. The August 2021 VA examiner reported that bilateral carpal tunnel syndrome would make typing difficult. On the other hand, the examiner stated that the Veteran would be capable of sedentary work, which would involve exerting up to 10 pounds of force occasionally or a negligible amount of force frequently to lift, carry, push, or pull. The Board finds this finding does not take into account that sedentary work would likely require manual dexterity, generally by using the computer and typing, which requires the ability to use both hands effectively. Moreover, the Veteran described how his pain prevented him from focusing. The January 2025 VA examiner found that the Veteran may require assistance with any task involving use of both hands and that he may need to rely on others for lifting Given the forgoing, service-connected bilateral carpal tunnel syndrome precludes the Veteran from the ability to secure and follow a substantially gainful occupation consistent with the Veteran's education, skills, training, and work history. Accordingly, a TDIU is warranted. The Board finds that the Veteran's bilateral carpal tunnel syndrome is the reason he is unemployable. He is not unemployable solely due to either his right or left carpal tunnel syndrome, or any other single service-connected disability. Therefore, the grant of TDIU does not warrant special monthly compensation under the provisions of 38 U.S.C. § 1114(s) because service-connected disabilities that can combine to be "one disability" under 38 C.F.R. § 4.16(a) do not serve as "a service-connected disability rated as total" for the purposes of establishing SMC. Youngblood v. Wilkie, 31 Vet. App. 412 (2019). Further, in his July 2024 brief, the Veteran's attorney specifically argued that the Veteran is unable to work due to his "service-connected disabilities," and referenced "service-connected disabilities" multiple times. He did not argue that the Veteran was unable to work due to only one service-connected disability. He stated that the Veteran had limitations in the areas of lifting, grasping, typing, and reaching, as well as the ability to concentrate and to demonstrate reliability and productivity and argued that, "...the record confirms that the Veteran's service-connected conditions have caused limitations in all of these areas." The Veteran's attorney argued that the Veteran's "bilateral carpal tunnel syndrome" caused pain after prolonged use of the upper extremities, and that his "bilateral shoulder and hand conditions" caused daily pain and limitations to type and use a computer. He summarized the Veteran's lay statements that his "service-connected bilateral shoulder conditions and carpal tunnel syndrome" rendered him unable to work. The Veteran's attorney argued that the Veteran's physical limitations caused by his "bilateral shoulder conditions and bilateral carpal tunnel syndrome" were incompatible with sedentary work. In summary, the Veteran's attorney argues that a combination of the Veteran's service-connected disabilities, not a single disability resulted in unemployable. REASONS FOR REMAND 1. An evaluation in excess of 20 percent for a right shoulder disability is remanded. 2. An evaluation in excess of 20 percent for a left shoulder disability is remanded. 3. An evaluation in excess of 10 percent prior to January 8, 2025, for right upper extremity carpal tunnel syndrome is remanded. 4. An evaluation in excess of 30 percent beginning January 8, 2025, for right upper extremity carpal tunnel syndrome is remanded. 5. An evaluation in excess of 10 percent prior to January 8, 2025, for left upper extremity carpal tunnel syndrome is remanded. 6. An evaluation in excess of 20 percent beginning January 8, 2025, for left upper extremity carpal tunnel syndrome is remanded. Remand is warranted because there was not substantial compliance with the Board's July 2024 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board directed the AOJ to obtain retrospective opinions throughout the respective periods on appeal regarding the severity of the disabilities. The directives further explained that, if the evidence of record indicates period(s) of increased and/or decreased severity, the examiner must note the severity changes and the date of the increase and/or decrease in severity, to the best of their ability. No such retrospective opinions as to the severity were provided. At best, the examiner described the current symptoms. The examiner did not explain the severity of the symptoms at different stages of the appeal period or confirm that the symptoms were the same throughout the appeal period. Thus, remand for a new opinion is warranted. Remand is further warranted because the Veteran reported in the January 2025 VA shoulder examination that he takes oxycodone three times per day. Under Ingram v. Collins, 38 Vet. App. 130 (2025) the Board must discount beneficial medication effects when the rating criteria do not specifically contemplate medication use. The Board requires a medical opinion requiring the examiner to describe what the Veteran's disability would look like without the impact of his medication, including estimating the ranges of motion without the medication. The Board cannot provide these estimates on its own because it is a medical determination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Unfortunately, the only available option to allow compliance with Ingram is to remand for a supplemental opinion. 38 C.F.R. § 20.802. 7. Entitlement to a total disability evaluation based on individual unemployability prior to February 2018. Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. As discussed in the section granting a TDIU during the period where the Veteran's ratings qualify for schedular consideration, the Veteran does not meet the percentage standards set forth in § 4.16(a) prior to February 2018. Therefore, the Board may not consider the Veteran's claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, as there is a reasonable possibility that the Veteran is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran's attorney argues that the Board has the authority to grant a TDIU in the first instance in extraschedular situations. The Board disagrees. Even where a veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"), it is currently the law. Thus, the Board cannot address in the first instance whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Obtain medical opinions with respect to the severity of the Veteran's bilateral shoulder disabilities. The medical opinions may be obtained using the ACE process. An in-person examination is necessary only if required by the clinician rendering the opinion. The clinician is asked to opine as follows: (a.) Estimate the ranges of motion of each shoulder from February 2018 to 2024, in reasonable periods of time, potentially at the same time as the previous VA examinations in 2018 and 2021. (b.) For any time periods during which the Veteran reported taking medication, including at the January 2025 VA shoulder examination, the clinician should estimate the ranges of motion of motion of each shoulder without any ameliorative effects of the medication. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a specific measurement without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 2. Obtain medical opinions with respect to the severity of the Veteran's bilateral carpal tunnel syndrome. The medical opinions may be obtained using the ACE process. An in-person examination is necessary only if required by the clinician rendering the opinion. The clinician is asked to opine as follows: (a.) Estimate the severity in terms of the peripheral nerve rating criteria from April 2016 to 2024, in reasonable periods of time, potentially at the same time as the previous VA examinations in 2017 and 2021. (b.) For any time periods during which the Veteran reported taking medication, including at the January 2025 VA shoulder examination, the clinician should estimate the severity of the carpal tunnel syndrome without any ameliorative effects of the medication. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a specific measurement without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 3. Ensure compliance with the remand directives pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Refer the Veteran's claim for TDIU for the period prior to February 2018 to VA's Director of Compensation Service for extraschedular consideration. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.