Citation Nr: 1306798 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 06-36 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b) for loss of use of the left hand and wrist. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from July 1959 to June 1967. These matters come before the Board of Veterans' Appeals (Board) from a May 2005 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA) in Los Angeles, California. Jurisdiction has since been transferred to the RO in Nashville, Tennessee. In December 2007, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In January 2008, the Board remanded the claims to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development and referral to the Director, Compensation and Pension Service (Director), for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). In November 2008, after VA had completed the directed development, the Director declined to assign an extraschedular evaluation, finding that such consideration was premature when VA had not yet considered the appropriateness of the current schedular evaluation. Indeed, in a December 2008 rating decision, VA assigned an increased, 70 percent schedular evaluation, as well as additional special monthly compensation, based on a determination that the Veteran's disability equated to loss of use of the right wrist and hand. In March 2009, the Board denied entitlement to a schedular evaluation in excess of 70 percent for the left wrist and hand disability, and remanded the matter of extraschedular evaluation for referral to the Director in light of the resolution of the schedular evaluation question. The Director denied entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b) in a May 2009 decision. In August 2009, the Board denied entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b). The Veteran appealed this denial to the Court of Appeals for Veterans Claims (the Court), which in October 2010, based on a Joint Motion, vacated the Board's decision and remanded the claim for further consideration. The Court noted that the Board had failed to consider entitlement to TDIU along with entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b). A claim for increased evaluation infers a claim for TDIU where there is evidence of unemployment, as a Veteran is presumed to be seeking the highest possible evaluation under all theories of entitlement. Roberson v. Principi, 251 F.3d 1378 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In December 2010, the Board remanded the appeal to provide the Veteran with notice and assistance relevant to his TDIU claim, deferring readjudication of the claim of entitlement to an extraschedular evaluation until the completion of the development with regard to the intertwined TDIU claim. The requested development has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's service-connected left wrist disability, with loss of use of the left hand, alone, is not productive of marked interference with employment and does not require frequent periods of hospitalization such that the regular schedular standards are rendered impractical. 2. The Veteran's service-connected disabilities alone are not of sufficient severity to produce unemployability. CONCLUSIONS OF LAW 1. The criteria for an extraschedular evaluation for the left wrist disability with loss of use of the left hand have not been met. 38 C.F.R. § 3.321(a) (2012). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters issued in February 2005, February 2008, August 2008, and December 2010 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a November 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in February 2005, September 2008, and August 2012, and relevant medical opinions were obtained in January 2011 and August 2012. The Veteran has not argued, and the record does not reflect, that these examinations and opinions are inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination reports reflect that the Veteran's symptomatology and related impairments were recorded and that relevant physical examinations were performed. Additionally, the 2012 VA medical opinion is unequivocal, predicated on a contemporaneous medical examination of the Veteran and consideration of his work history, and is supported by a detailed rationale. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486. Extraschedular Evaluation In exceptional cases where the schedular evaluation is found to be inadequate, pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service may approve an extra- schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. A claim for an extra-schedular rating must be sent by the Board to those "officials who possess the delegated authority to assign such a rating in the first instance." The question of an extra-schedular rating is a component of the appellant's claim for an increased rating. Floyd v. Brown, 9 Vet. App. 88 at 96 (1996). As reflected by his Board testimony and submitted statements, the Veteran asserts that his left wrist disability, which affects his dominant hand, renders him unable to effectively lift, grasp, and manipulate objects, and that he requires assistance in performing household tasks. In April 2005, the Veteran sought VA physical therapy for mobility defects. At this time, he reported that he had undergone a total right knee replacement in 2003 and right foot surgery in 2004 and that he had been wheelchair-bound for approximately one year after his surgeries. He stated that he had recently retired. In August 2005, he reported that due to his prescribed pain medication, he had been able to play seven holes of golf, and in September 2005, he reported performing chair push-ups as part of his physical therapy routine related to his lower extremities. In January 2006, the Veteran reported experiencing increased left wrist pain and that he had ceased playing golf, and he was subsequently prescribed a wrist brace and pain medication. A September 2008 VA examination report reflects that the examiner opined that the Veteran's left wrist and hand were nonfunctional due to the service-connected left wrist disability. In a December 2008 rating decision, the RO granted a 70 percent schedular evaluation under Diagnostic Code 5125 for the Veteran's left wrist disability. The schedular evaluation is the highest evaluation afforded by the diagnostic code. The rating decision also granted service connection for the scar associated with left wrist surgery, assigning a noncompensable evaluation, and awarded k-1 special monthly compensation (SMC) based on loss of the use of the left hand. In May 2009, the Director of Compensation and Pension Services considered whether the Veteran's left wrist disability warranted extra schedular evaluation. The Director observed that the medical evidence demonstrates that the Veteran experiences pain and limited use of the service-connected left hand. The Director further observed that the Veteran is a retired computer specialist, but that the date of his retirement was unknown and that information concerning his education and work experience was not available. The Director stated that the medical evidence revealed that the Veteran has the following nonservice-connected disabilities: osteopenia and compression wedge fracture of the T12 vertebrae; diabetes mellitus; hypertension; severe gastroesophageal reflux disease; possible myeloproliferative disorder; status post right knee replacement; status post arthrodesis with fusion of the left calcaneo-talar joint with altered gait; basal cell carcinoma of the skin of the left jaw, status post Mohs procedure; and kidney stones with recurrent urinary tract infections. Conceding that the Veteran's service-connected left hand is manifested by pain and limited use, the Director concluded that "[the Veteran's] numerous nonservice-connected disabilities are so severe as to interfere with the [V]eteran's ability to be gainfully employed." The Director concluded that entitlement to an extraschedular evaluation based on the service-connected arthritis of the left hand was not warranted. In January 2011, a VA physician, whose medical specialty is unspecified, opined that the Veteran's non-functional left hand, which results in pain and loss of function and mobility, renders him unemployable. The VA physician did not examine the Veteran and offered no supporting rationale for this opinion. In September 2012, a VA physician with a masters degree in public health who serves as the medical director of a VA Medical Center's Occupational Health Services department, examined the Veteran. The examiner stated that the Veteran has decreased left hand grip strength and left wrist strength and range of motion, but is able to move all digits of his left hand freely, as observed during the examination. The examiner chronicled the Veteran's prior work history, which includes fifteen years of employment as a bank officer and twenty years as an informational technologist, all of which he performed after his in-service left wrist injury. The examiner opined that, based on the Veteran's demonstrated work capacity since his in-service injury, and the physical findings during the current examination, the Veteran is capable of performing sedentary employment, as defined by the Department of Labor's Dictionary of Occupational Titles, but cannot perform light, medium, heavy, or very heavy work, as defined by this dictionary. In support of this opinion, the examiner stated that the Veteran had demonstrated the ability to exert up to 10 pounds of force occasionally; and he could exert a negligible amount of force either frequently or constantly to lift, carry, push, pull or otherwise move objects, including his body. The 2012 VA medical opinion is authored by a VA physician with specialized training in the area of occupational capability. The examiner predicated his opinion on a contemporaneous physical examination of the Veteran and consideration of his work and disability history. The opinion is unequivocally stated and is supported by a detailed rationale that incorporates relevant definitions of various levels of work capability. The opinion that the Veteran is capable of sedentary employment is supported by the Veteran's post-injury career in two largely sedentary fields of employment as a bank officer and an informational technologist. The Board accords this opinion significant probative value. Conversely, the January 2011 VA medical opinion is predicated only on a review of the Veteran's claims file and without any noted consideration of the Veteran's work history. The VA physician's area of expertise is unstated, and the opinion is unsupported by any rationale. The opinion is of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). The Veteran is competent to report his left hand symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Further, the Veteran's reports of his left hand symptomatology are uncontroverted by any evidence of record and are deemed credible. Indeed, the 2012 VA medical opinion recognizes the severity of the Veteran's left wrist and hand disability with loss of use of the left hand, as well as its corresponding economic impairment. Based on the Veteran's subjective complaints and the objective medical evidence, the Veteran has been assigned a 70 percent disability rating, the highest schedular rating available, and awarded additional special monthly compensation, which have been assigned based on symptomatology that equates to the loss of use of the left hand. Nevertheless, the Veteran has not reported, and the medical evidence does not reflect, that during this appeal the Veteran has had periods of hospitalization or convalescence required solely for the left wrist disability. The probative medical evidence does not establish that the left wrist disability, alone, has been the sole source of functional impairment resulting in difficulty maintaining employment. In short, the evidence does not show an exceptional or unusual disability picture such that the application of the regular rating criteria is rendered impractical based on consideration of the left wrist disability with loss of use of the left hand alone. A preponderance of the evidence is against the assignment of an extraschedular evaluation based on the service-connected left wrist disability with loss of use of the left hand. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321. There is no benefit of the doubt to be resolved; and an extraschedular evaluation for the left wrist disability with loss of use of the left hand is not warranted. Unemployability Determination Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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. 38 C.F.R. § 4.16(a). The determination of a single disability as ratable at 60 or 40 percent or more includes consideration of disabilities involving one or more lower extremities as a single disability. Id. Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The correct 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 Veteran reports that he is currently unemployed and that any proceeds from his singular published mystery novel are negligible, with an estimated total profit of $14.70 as of November 2012. As this does not constitute gainful employment, the Veteran is deemed unemployed for VA purposes. The Veteran is service-connected for a left hand disability, evaluated as 70 percent disabling, and a left hand scar and left toe fracture, both of which are evaluated as noncompensably disabling. His combined total disability rating is 70 percent; thus, he is schedularly eligible for TDIU consideration. The analysis as to whether the Veteran is entitled to a TDIU or an extraschedular evaluation both consider the impact of his service-connected left hand disability on his functional capacity, and much of the evidence and analysis relevant to this claim is set forth above. Specifically, the more probative VA medical opinion regarding the occupational impact of the Veteran's service-connected disabilities concludes that the Veteran is capable of sedentary employment. This opinion is consistent with the Veteran's reported previous careers as a bank officer and information technologist. Likewise, the probative value of this medical opinion regarding the effect of the Veteran's service-connected disabilities on his employability far outweighs the Veteran's competent, credible reports regarding his own belief that his service-connected left hand disability renders him unemployable. See Jandreau, 492 F. 3d 1372. As the Veteran's service-connected disabilities alone do not preclude him from engaging in gainful employment, the preponderance of the evidence is against the claim for a TDIU; there is no doubt to be resolved; and the assignment of a TDIU is not warranted. ORDER An extraschedular evaluation for the left wrist disability with loss of use of the left hand is denied. A TDIU is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs