Citation Nr: 1302684 Decision Date: 01/24/13 Archive Date: 01/31/13 DOCKET NO. 07-21 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an extraschedular rating in excess of 10 percent for right elbow strain with limitation of pronation of right forearm, residuals of right hand and wrist injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified at an RO hearing in September 2009. He also appeared at a Travel Board hearing in August 2010 before a Veterans Law Judge. Transcripts of the hearing testimony are associated with the claims file. In September 2010, the Board found that the rating reduction from 20 to 10 percent for the Veteran's right elbow strain with limitation of pronation of right forearm, residuals of right hand and wrist injury, was proper. The Board also denied the Veteran's claim for a schedular rating in excess of 10 percent for the right wrist disability. The Veteran appealed the Board's decision that denied restoration of the 20 percent rating for the right forearm disability to the U.S. Court of Appeals for Veterans Claims. In February 2012, the Court issued a Memorandum Decision that affirmed the Board's September 2010 decision pertaining to the finding that the Veteran was not entitled to a restoration of a 20 percent schedular rating for limitation of pronation of the right forearm. The Court noted that the Veteran did not contest either the medical data or the Board's application of that data to the rating code with respect to the forearm disability and therefore affirmed the Board's schedular rating for the forearm disability. The Court also found that the Board did not err in respect to its not adjudicating the issue of entitlement to a total disability rating based on individual unemployability. However, the Court set aside a determination that referral for an extraschedular rating under 38 C.F.R. § 3.321(b) was not warranted, and remanded that matter for reconsideration. In addressing the issue of whether the Veteran was entitled to an extraschedular evaluation, the Court noted evidence pertaining to not only the right forearm but also the right wrist disability. Specifically the Court noted that the Board must evaluate the Veteran's entire disability picture, which includes both the right wrist and right forearm disabilities. See Memorandum Decision, p. 5. Therefore in determining whether the Veteran is entitled to an extraschedular evaluation, the Board must consider both the ratings pertaining to the right wrist and the right forearm, even though it appears that the Veteran only appealed the right forearm issue. The Court noted that the Veteran reportedly had difficulty using common tools of carpentry because of his wrist swelling and locking up and that he had to use his body weight rather than the natural strength of the arm and wrist to pull a nail or exert force in common construction tasks. Id. at 4. The Court found that the Board did not describe how these symptoms were reflected in disability ratings that were based on limitation of motion. The Court also noted that at the time of the Board hearing in 2010, the Veteran could only obtain periods of temporary employment to the extent that the employer had work he could perform without lifting heavy sheets of steel. Id. at 5. The Court found that the Board did not explain how this evidence did not rise to "marked interference with employment" as described by 38 C.F.R. § 3.321(b). Id. Moreover, the Court indicated that the Board, in error, used the standard for determining whether he was employable in determining that referral for an extraschedular evaluation was not warranted. Id. at 4. During the course of the appeal to the Court, the Veterans Law Judge who conducted the August 2010 Board hearing left the Board. In August 2012, the Board sent the Veteran a letter notifying him of this and giving him the opportunity to elect to participate in another hearing so that the individual conducting the hearing would also be the one signing a decision on appeal. The Veteran was given a period of 30 days to respond, after which time, the Board indicated that it would assume the Veteran did not want a hearing. The Veteran did not respond to the Board's August 2012 letter; therefore, he has, de facto, chosen the option not to appear at another hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND During a December 2008 fee-basis VA Joints examination, the Veteran complained of weakness, stiffness, swelling, lack of endurance and locking. Upon examination, the examiner indicated that the effect on the Veteran's usual carpentry occupation is pain, and that the Veteran has had trouble holding a job due to the wrist problem. The Veteran reported he is going to school so he can teach carpentry. The Veteran testified at the September 2009 RO hearing that in the construction field he used a hammer a lot and did a lot of pulling and nailing and that he would have to use his body weight to pull a nail out or his wrist would lock up on him. He also mentioned that when he grasped something he could not use his full hand pressure and would either have to use his body weight or a tool to help him grasp it. See RO Hearing Transcript, p. 2. In a January 2010 fee-basis VA Joints examination report, the Veteran reported weakness, stiffness, swelling, lack of endurance, locking, fatigability, deformity, and pain. He reported that during a flare-up his hand seems to lock up and swell. The examiner changed the Veteran's diagnosis of status post right wrist and hand injury with limitation of wrist flexion and deviation to right wrist strain with limitation of wrist flexion and deviation status post right wrist and hand injury. The examiner noted that the effect of the condition on the Veteran's daily activities requires him to use his left hand for certain activities as a flare in wrist pain makes working with his hands difficult. The Veteran testified at the August 2010 Board hearing that he was having difficulties performing his job duties as a carpenter and that his employer would make accommodations for him. See Board Hearing Transcript, pp. 3-4. He also mentioned that he was going to school so that he could teach carpentry. He mentioned that he was presently laid off because he had been working for a company that did a lot of lifting of steel and with his right hand hurting they would only call him when they had "small stuff" to do. Id. at 5. The rating schedule represents, as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's right forearm disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5213, which primarily addresses whether there is limitation of motion of the elbow and forearm including in pronation or supination, or whether there is bone fusion. The rating criteria do not specifically address weakness or loss of grip strength. Therefore, it does not appear that the rating criteria address all of the Veteran's impairment concerning his right forearm disability. Moreover, there is some indication of marked interference with employment, as the Veteran has indicated that he can no longer perform his duties as a carpenter due to his right forearm disability. While his employer has made some accommodations for him, he does not have consistent employment due to his right forearm disability. Thus, it appears that the Veteran has met the requirements for consideration of whether an extraschedular evaluation is warranted for his right forearm disability. His entire disability picture should be considered, including his right wrist and forearm and how they function as a whole, in determining whether an extraschedular evaluation is warranted. Accordingly, the case is REMANDED for the following action: 1. Submit the Veteran's increased rating claim for right elbow strain with limitation of pronation of right forearm, residuals of right hand and wrist injury, for an extra-schedular evaluation under 38 C.F.R. § 3.321(b) to include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Actions taken thereafter should proceed in accordance with the directives of the Under Secretary for Benefits or Director, Compensation and Pension Service. 2. If the claim is denied, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) addressing entitlement to an extra-schedular evaluation. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).