Citation Nr: 1321831	
Decision Date: 07/09/13    Archive Date: 07/18/13

DOCKET NO.  09-39 926	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for carpal tunnel syndrome of the left wrist, to include as secondary to a service-connected right hand and wrist disabilities. 

2. Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Joshua M. Rutkin


INTRODUCTION

The Veteran served on active duty from August 1974 to August 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

1. An August 2007 Board decision denied the claim of entitlement to service connection for carpal tunnel syndrome of the left wrist. 

2. Additional evidence received since the August 2007 Board decision is new to the claims file, but does not relate to an unestablished fact necessary to substantiate the claim for left wrist carpal tunnel syndrome. 


CONCLUSIONS OF LAW

1. The August 2007 Board decision, denying service connection for left wrist carpal tunnel syndrome, is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).

2. New and material evidence has not been submitted to reopen the service connection claim for left wrist carpal tunnel syndrome.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. 
§ 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 




II. The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a statement of the case or supplemental statement of the case) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

A claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements.  See id. at 486; Quartuccio, 16 Vet. App. at 187. 

In the context of a petition to reopen, the claimant must also be notified of what is required to reopen the claim, namely the elements of new and material evidence, and the reasons for the prior denial.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  

Here, prior to the initial rating decision in this matter, a December 2008 informed the Veteran that this claim had last been denied in the Board's August 2007 decision and provided the reasons for the denial.  It also informed him of the elements of new and material evidence that must be satisfied to reopen the claim.  Finally, it informed him of all five elements of service connection and notified him of his and VA's respective responsibilities for obtaining relevant records and other evidence on his behalf.  Therefore, the duty to notify is satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187; Kent, 20 Vet. App. 1. 

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

The Veteran's service treatment records, VA medical records, and Social Security Administration (SSA) records are in the file.  He has not identified any other records or evidence that remains outstanding.  Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied.  See 38 C.F.R. § 3.159(c).  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a).  However, in cases involving a petition to reopen a previously denied claim, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured with respect to that claim.  38 C.F.R. § 3.159(c)(4)(iii).  Because new and material evidence has not been submitted to reopen this claim, a VA examination or opinion is not required.  See id.

In sum, VA's duty to notify and assist under the VCAA has been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication."  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002).  Accordingly, the Board may proceed with appellate review.  

III. Analysis

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995) 

The standard of proof applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Board must assess the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See, e.g. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

As observed by the Federal Circuit, lay evidence must "demonstrate some competence."  See King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id. (affirming the Court's finding that the Board did not improperly discount the probative value of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  

However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  The Federal Circuit has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence.  See Layno, 6 Vet. App. at 469 (holding that the weight and credibility of testimony, as distinguished from its competency, is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."); Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).  Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").  

Service connection for carpal tunnel syndrome of the left wrist was denied in an August 2007 final Board decision.  See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1100 (providing that, with certain exceptions not applicable here, all Board decisions are final on the date stamped on the face of the decision).  Because this claim was the subject of a final decision by the Board, it may only be reopened with the submission of new and material evidence.  See 38 U.S.C.A. § 5108. 

Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim.  The Board must review all evidence submitted by or on behalf of a claimant since the last final denial of the claim on any basis to determine whether new and material evidence has been submitted to reopen the claim.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).

The phrase "new and material evidence" is defined as follows.  "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  In order to warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.  

In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that the phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence, but rather provides guidance as to whether submitted evidence meets the new and material requirements.  Id.  The Court observed that this standard is a "low threshold" for reopening, and explained as an example that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim considered on the merits, then it raised a reasonable possibility of substantiating the claim.  Id.  The Court also explained that new and material evidence need only pertain to one unestablished element in order to reopen a claim, as long as such evidence, in light of evidence previously of record, raises a reasonable possibility of substantiating the claim.  Id. at 121.

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The Federal Circuit has distinguished two evidentiary requirements for establishing service connection depending on the type of disorder being claimed.  For any disorder not defined by VA as a "chronic disease," the Federal Circuit held that a three-element test must be satisfied under subsection 3.303(a) of the regulations in order to establish entitlement to service connection.  Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Id.

However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under subsection 3.303(b).  See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Walker, 708 F.3d at 1338-1339.  Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases.  Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease").  A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. at 1338.  

In other words, while a current disability must always be established in any service connection claim, the evidence required to show that the disability was incurred in or aggravated by active service differs according to whether the disability is defined as a chronic disease.  If the claimed disability is considered a chronic disease, then a relationship to service may be established by showing a chronicity in service or a continuity of symptoms after service.  If the disability in question is not defined as a chronic disease, then a "medical nexus" between active service and the claimed disability must be shown, which is a higher evidentiary burden. 

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits.  Id.  

Service connection for carpal tunnel syndrome of the left wrist was denied in the Board's August 2007 decision because the evidence did not show that it was caused or aggravated by his service-connected right hand and wrist disabilities, or that it was related to active service.  Thus, in order to reopen this claim, there must be new evidence supporting a relationship between the Veteran's left wrist carpal tunnel syndrome and his right hand and wrist disabilities or active service. 

Since the Board's August 2007 decision was issued, the Veteran submitted a December 2008 statement in support of his petition to reopen his claim asserting that his left wrist carpal tunnel syndrome was caused by overuse of his left hand in compensation for lack of use of the right hand due to the service-connected right hand and wrist disabilities.  He also submitted a February 2004 VA treatment record reflecting a finding that the Veteran had right wrist carpal tunnel syndrome secondary to his service-connected fracture of the right navicular bone.  However, the Veteran's basic contentions and the February 2004 VA treatment record were already of record in the Board's August 2007 decision.  Thus, this evidence is not new to the file or, in the case of the Veteran's statements, redundant of evidence previously of record at the time of the Board's August 2007 decision.  Indeed, the February 2004 VA treatment record makes no mention of the Veteran's left wrist.  

Other evidence associated with the file since the Board's August 2007 decision consists of the Veteran's SSA records and more recent VA treatment records.  The fact that the Veteran has left wrist carpal tunnel syndrome is an element of service connection that was already established and considered by the Board in its August 2007 decision.  The additional records, while showing ongoing treatment, do not relate to the issue of whether the Veteran's left wrist carpal tunnel was caused or aggravated by his right wrist or hand disabilities or by active service.  See Morton v. Principi, 3 Vet. App. 508 (1992) (holding that medical evidence describing the claimant's current condition was not material to the issue of service connection and thus not sufficient to reopen a previously denied claim).  Thus, these additional records do not constitute new and material evidence under section 3.156.  

Accordingly, new and material evidence has not been submitted to reopen the claim of entitlement to service connection for left wrist carpal tunnel syndrome.  Therefore, the petition to reopen is denied.  See 38 C.F.R. § 3.156(a).


ORDER

The petition to reopen the claim of entitlement to service connection for carpal tunnel syndrome of the left wrist is denied.






REMAND

The issue of entitlement to TDIU is remanded for extraschedular consideration, as the Veteran currently does not meet the schedular requirements for entitlement to TDIU.  Specifically, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only one such disability, this disability must be rated as 60 percent or more disabling, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more disabling, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a). 

Service connection is currently established for disabilities of the right hand and wrist, rated as 40 percent disabling, and recurrent posterior tibial tendonitis with plantar fascial strain, rated as 20 percent disabling.  The Veteran's combined evaluation is 50 percent.  See 38 C.F.R. § 4.25.  Thus, the requirements for schedular entitlement to TDIU are not satisfied. 

Nevertheless, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a).  The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  38 C.F.R. § 4.16(b).  

There is probative evidence of record showing that when the Veteran's employment history and educational and vocational attainment are taken into account, his service-connected disabilities may render him unable to secure or maintain a substantially gainful occupation.  Specifically, the evidence shows that the Veteran discontinued employment in driving and luggage transportation in June 2008 due to his service-connected disabilities.  VA examination reports dated in March 2011 reflect an examiner's finding that the Veteran would not be able to find work as a professional driver due to his right wrist disorder and also could not do any manual labor.  The examiner found that he would be limited to sedentary work.  

Further, a March 2010 SSA decision found the Veteran to be disabled for SSA purposes mainly due to his service-connected disabilities.  It was noted in this decision that these disabilities limited him to "light" work, as defined by SSA, and that his vocational history consisted of jobs as a carpenter, laborer, machine operator, milker, van driver, and luggage delivery man, all occupations requiring a higher level of exertion than light work.  The Veteran's TDIU application reflects that he earned a GED in 2000 and had two years of college, with a degree in welding from a community college.  Notably, an October 1995 VA examination report reflects that the Veteran had only completed eight grade at this time, and had a "limited reading ability."  

Given the evidence suggesting that the Veteran may be unable to obtain or maintain substantially gainful activity due to his service-connected disabilities in view of his work history and educational and vocational background, the RO should refer the issue of entitlement to TDIU to the Director of the Compensation and Pension Service for extraschedular consideration.  See 38 C.F.R. § 4.16(b).  

Accordingly, the case is REMANDED for the following actions:

1. Reassess whether the record is developed as to the question of extraschedular evaluation. If necessary, conduct any other appropriate development - then refer the issue of whether the Veteran is entitled to TDIU on an extraschedular basis to the Director of the Compensation and Pension Service.  The claims file and a copy of this REMAND must be provided. 

2. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the issue of entitlement to TDIU on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran 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).




______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs