Citation Nr: 1339616	
Decision Date: 12/02/13    Archive Date: 12/18/13

DOCKET NO.  10-49 329	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

1.  Entitlement to an initial rating higher than 20 percent for residuals of a left wrist fracture (left wrist disability) on an extra-schedular basis.

2. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel



INTRODUCTION

The Veteran had active military service from October 1978 to October 1982.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

As support for his claims, the Veteran testified at a hearing at the Board's offices in Washington, DC, in July 2012 before the undersigned Veterans Law Judge of the Board (Central Office (CO) Hearing).

The Board subsequently, in September 2012, remanded the claims to the RO via the Appeals Management Center (AMC) in Washington, DC, to refer this case to the Director of VA's Compensation and Pension Service for consideration of entitlement to additional compensation for the left wrist disability on an 
extra-schedular basis under 38 C.F.R.  § 3.321(b)(1) and the derivative TDIU claim also on an extra-schedular basis, but instead under § 4.16(b).  The Director denied this special entitlement in a July 2013 decision, so these claims are again before the Board.

In a September 2012 Statement in Support of Claim (VA Form 21-4138), the Veteran said that he wanted to withdraw his appeal for a TDIU.  However, in a later Statement in Support of Claim dated in June 2013, he again discussed his belief that he should receive a TDIU.  So despite the fact that he seemingly withdrew this claim in September 2012, he re-raised it in June 2013, requiring that the Board consider it since his claim of unemployability is largely predicated on his left wrist disability that is also at issue in this appeal.  See Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).

In addition, the evidence of record raises a claim for an increased rating for the left wrist disability (so not just on an extra-schedular basis), including because of purported loss of use of the hand.  Therefore, the Board is referring this issue to the RO for appropriate consideration.

But as concerning the claims that are currently before the Board, the Board has advanced them on the docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The service-connected left wrist disability does not present such 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 in assessing its severity.

2.  The Veteran's service-connected disabilities - which are the residuals of the left wrist fracture, but also hypertension and left ulnar radiculopathy - are not sufficiently disabling as to prevent him from obtaining and maintaining substantially gainful employment given his level of education, prior work experience and training, etc.


CONCLUSIONS OF LAW

1.  The criteria are not met for an extra-schedular rating for the left wrist disability.  38 U.S.C.A. §1155 (West 2002); 38 C.F.R. § 3.321(b)(1) (2013).

2.  The criteria also are not met for a TDIU on either a schedular or extra-schedular basis.  38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Standard of Review

In deciding these claims, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") portion of it, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board addresses its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that 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).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 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 a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

II. 
The Duties to Notify and Assist

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

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence not of record 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/CAVC) 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 obtain; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Ideally, VCAA notice should be provided prior to an initial decision on a claim by the RO as 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, if notice was not provided prior to initially adjudicating a claim, or if provided and it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice because the intended purpose of the notice is still preserved, not frustrated, since the Veteran is still given meaningful opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 


In claims for increased ratings for disabilities that already have been determined service connected in years past, the Court has held that in order to satisfy the first notice element in an increased-rating claim, VA must notify the claimant that he needs to provide or request VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability at issue.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010) (Vasquez-Flores III); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (Vasquez-Flores I), overruled in part sub. nom. Vasquez-Florez/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (Vasquez-Flores II).  Further, the claimant must be notified that a disability rating will be determined by applying relevant Disability Codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment.  Id.  Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Id.  Except when VCAA notice as to how to substantiate a claim is not provided at all, it is the claimant's burden to show that he was prejudiced by any deficiency in the notice provided.  See Vazquez-Flores, 24 Vet. App. at 106-107.  And VA is not required to apprise him of alternative DCs or daily-life evidence, only instead provide what amounts to "generic" notice.

In this case, the Veteran filed his claim for service connection for his left wrist disability in April 2009.  His appeal concerns whether he is entitled to a higher rating for the left wrist disability that since has been service connected.  In cases, as here, where the increased-rating claim arose in another context, namely the Veteran trying to establish his underlying entitlement to service connection, and the claim since has been granted and he has appealed this "downstream" issue concerning the initial rating assigned for the disability, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  Thereafter, once a notice of disagreement (NOD) has been filed contesting the "downstream" issue of the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC or SSOC control as to the further communications with the appellant, including as to this downstream element of the claim.  Id.; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003).  And the Veteran received this required SOC or SSOC, including as recently as August 2013 discussing this downstream claim for a higher initial rating, citing the applicable statutes and regulations, and providing reasons and bases for not assigning a higher initial rating.

With regards to his claim for a TDIU, prior to the initial rating decision in this matter, a January 2010 letter informed the Veteran of the requirements for establishing his entitlement to a TDIU, gave examples of the types of evidence he could submit in support of this claim, and apprised him of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf that might tend to support this claim.  Therefore, the duty to notify has been satisfied.

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

To this end, the Veteran's STRs and post-service treatment records have been obtained and associated with the claims file for consideration.  He has not identified any outstanding records that he wants VA to obtain or that he believes are relevant to his claims in terms of showing his entitlement to a greater level of compensation.  Therefore, the duty to assist him in obtaining pertinent records has been satisfied.  See 38 C.F.R. § 3.159(c).


The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the claimant's disability and such is relevant to the claim, a new VA examination must be conducted.  See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d 1362, 
1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

Here, appropriate VA examinations addressing the Veteran's left wrist disability, including the radiculopathy, and his hypertension were performed in May 2010, November 2011, and September 2012.  The VA examinations are adequate for rating purposes and for the purpose of deciding whether he is entitled to a TDIU.  

In this regard, the examiners reviewed the claims file for the history of these disabilities, examined the Veteran personally, and described these disabilities in sufficient detail to enable the Board to make a fully informed decision regarding their severity in relation to the applicable rating criteria and to his individual unemployability.  D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination reports, and the claimant has not specifically challenged its adequacy or thoroughness, or the competence of the examiners.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-91.

Accordingly, VA's duty to assist with respect to obtaining a VA examination has been met.  38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312.

In sum, VA's duty to notify and assist under the VCAA has been satisfied.  The Veteran has had ample opportunity to participate effectively in the development of these claims.  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 will not affect the outcome of these claims or compromise the "essential fairness of the adjudication," and no such defect has been shown.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  To the contrary, he has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of his claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  Thus, any error in the notice or assistance provided was harmless, meaning nonprejudicial.  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 the error was harmless by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) and 38 C.F.R. § 20.1102.

Accordingly, the Board may proceed with appellate review of these claims.

III. Extra-schedular Rating for the Left Wrist Disability

The Veteran alleges entitlement to a rating higher than 20 percent for his left wrist disability on an extra-schedular basis.

In exceptional cases, where schedular evaluations are found to be inadequate, the RO or Board may refer a claim to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. 3.321(b)(1).  "The governing norms 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."  Id.

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, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran'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 under 38 C.F.R. 3.321(b)(1).

The Board is precluded from granting extraschedular ratings in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for this initial consideration.  See Barringer v. Peake, 22 Vet. App. 242 (2008).  This does not, however, preclude the Board from determining whether this special consideration is warranted.  See Bagwell v. Brown,9 Vet. App. 237, 238-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (Aug. 16, 1996).  And, indeed, this is the reason the Board remanded, rather than immediately decided, this ancillary component of the claim in September 2012.

As previously noted, the Veteran was afforded VA examinations where the examiner addressed the affects of the Veteran's left wrist disability on his ability to work in a substantially gainful capacity.  During a May 2010 examination, the examiner noted that, at the time, the Veteran was working part-time as a chef; he experienced a lot of pain, numbness, and cramps in his hand; and he was subject to dropping things without notice.  During a later November 2011 VA examination, he reported being unable to do anything with his left wrist due to constant locking and chronic pain.

In addition, various post-service treatment records comment on the affect of his left wrist disability on his employability.  In August 2011, he received a functional capacity evaluation of his left wrist.  The therapist commented that the Veteran might benefit from retraining in a job more commensurate with his current capabilities, restricting the use of his left hand.  The therapist also reported that the Veteran had a positive or abnormal result on the Ransford Quantified Pain Drawing, which is a test used to determine inappropriate illness behavior, or behavior that is disproportionate to the actual functional loss caused by an impairment.  A January 2012 letter from a Durham VA Medical Center (VAMC) doctor opined that, based on the results of the functional capacity evaluation examination, the Veteran had total disability of the use of his left hand and could only engage in occupational activities that would not involve any use of the left hand.

This claim for extraschedular consideration for a left wrist disability was considered by the Director of Compensation in July 2013, and he found that the Veteran was not entitled to an extraschedular evaluation because, despite the fact that he had not worked in over a year, there was no evidence that his left wrist disability presented 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.

The Court has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extraschedular consideration under 38 C.F.R. § 3.321(b)(1). . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16."  Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  The former requires marked interference with employment; whereas the latter requires evidence of unemployability.  Id.; see also Thun, 22 Vet. App. 111, ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.").

According to 38 C.F.R. § 4.1, generally, the degree of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  So the Board is not disputing that the Veteran's service-connected left wrist disability interferes with his ability to work.  But this alone is not tantamount to concluding there is marked interference with his employment, meaning above and beyond that contemplated by the assigned rating.  Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated that the disability rating itself is recognition that industrial capabilities are impaired.

The Board acknowledges the reports of the VA examiners who recounted the Veteran's symptoms and their affect on his ability to work, as well as the opinions of the therapist who performed his functional evaluation and the VAMC doctor who commented on the evaluation.  As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.  See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases).

The Director of Compensation cited reasons for invalidating the therapist and VA doctor's opinions of unemployability inasmuch as the Veteran had not had marked interference with employment or frequent hospitalizations.  It is indisputable that he has not had frequent hospitalizations on account of his left wrist disability.  To the contrary, his evaluation and treatment has been on an outpatient rather than inpatient basis.  And while he has not had full-time employment as a cook, his symptomatology is adequately contemplated by the Rating Schedule, as it takes into consideration interferences with work because of his associated pain and discomfort and limited mobility, such as by considering the extent there is limitation of motion, so the ability to use this extremity in a meaningful way or capacity.

Although a particular diagnostic code may establish different ratings solely on the basis of loss of range of motion, functional loss may be manifested by a number of factors, which may affect the range of motion and provide the basis for a rating under such diagnostic code.  See DeLuca v. Brown, 8 Vet.App. 202, 208 (1995) (holding that a diagnostic code providing for various ratings solely on the basis of loss of range of motion may provide a higher rating on the basis of pain on use, including during flare-ups).  For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance.  38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011).  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by impairment in using his left wrist and hand.  In short, there is nothing exceptional or unusual about his left wrist disability because the rating criteria reasonably describe his disability level and symptomatology.  Thun, 22 Vet.App. at 115.  It therefore cannot be said that his disability picture is so exceptional or unusual as to render the rating schedule impractical.  38 C.F.R. § 3.321(b)(1) (2013).

Even if the Board were to find that step one of Thun had been satisfied, an extraschedular rating still would not be warranted because the Board also found that Thun step two is not satisfied.  See Johnson v. Shinseki, 26 Vet.App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied).

In sum, the Board finds that a preponderance of the evidence is against this claim for a higher rating for the left wrist disability on an extra-schedular basis.  Consequently, the benefit-of-the-doubt rule is inapplicable, and this claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

IV. TDIU

The Veteran alleges that his service-connected disabilities, so when considering all of them, still especially his left wrist disability, render him unemployable and therefore entitled to a TDIU.

Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or disabilities that have not been service connected.  See 38 C.F.R. §§ 3.341(a), 4.16(a).  Total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 4.15; see also 38 C.F.R. § 3.340(a) (providing that to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation).

Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income."  Under VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), "substantially gainful employment" is defined as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."

In determining entitlement to a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability, without regard to advancing age or disabilities for which service connection has not been established.  See 38 C.F.R. §§ 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  VAOPGCPREC 75-91.  Thus, the criteria include a subjective (not just objective) standard.  See id.  VA's General Counsel further observed that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  Id.

Importantly, requiring a Veteran to prove 100 percent or total unemployability is different from requiring proof that he cannot obtain or maintain "substantially gainful employment."  See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  The use of the word "substantially" suggests intent to impart flexibility into a determination of overall employability, whereas a requirement that he prove 100-percent unemployability leaves no flexibility.  See id.  Moreover, in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Court held that the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal.  At the same time, the mere fact that a claimant is unemployed or has difficulty obtaining employment is insufficient reason to find that he is unemployable.  See Van Hoose, 4 Vet. App. at 363 (1993).  A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment, as VA's rating schedule is already designed to take into consideration impairment that renders it difficult to obtain and keep employment.  Id.; see also 38 C.F.R. §§ 4.1, 4.15 (2012).

In order to satisfy the criteria for schedular consideration of entitlement to aTDIU, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more.  See 38 C.F.R. § 4.16(a).  If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more.  Id.  Disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, disabilities affecting a single body system such as orthopedic disabilities, multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war will be considered as one disability for purposes of determining whether the Veteran satisfies these threshold minimum rating requirements.  Id.


Here, service connection is currently established for the following disabilities: residuals of the left wrist fracture, rated as 20-percent disabling effectively since April 2009; hypertension rated as 0 percent (noncompensable) from November 2009, as 10-percent disabling from February 2012, and as 20-percent disabling since September 2012; and left ulnar radiculopathy, rated as 10-percent disabling since April 2009.  The Veteran has a combined rating of 30 percent from April 2009 and of 40 percent from February 2012.

The residuals of his left wrist fracture and left ulnar radiculopathy stem from the same etiology and, thus, are considered one collective disability with a combined evaluation of 30 percent since April 2009.  See 38 C.F.R. § 4.25.  But the minimum evaluations for schedular consideration of entitlement to a TDIU, namely, one disability rated as at least 40 percent and a total combined rating of at least 70 percent has not been satisfied.  See 38 C.F.R. § 4.16(a).  Therefore, a TDIU on a schedular basis is unwarranted.

It nonetheless 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 will refer to the Director of the Compensation and Pension Service for extraschedular 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).

But irrespective of whether the Veteran's TDIU claim is considered under § 4.16(a) versus (b), the critical determination regardless is whether he is unable to obtain and maintain substantially gainful employment as the consequence of his service-connected disabilities.  See also 38 C.F.R. § 3.340 (indicating those circumstances under which occupational impairment is considered total and permanent in its scope).

As previously mentioned, the issue of entitlement to a TDIU on an extraschedular basis was also referred to the Director of the Compensation and Pension Service since the Board may not assign an extraschedular rating in the first instance, although it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer, 22 Vet. App. 242.  The Director issued an opinion in July 2013 denying extraschedular entitlement.  Accordingly, entitlement to a TDIU on only an extraschedular basis is being considered.

On his formal TDIU application (VA Form 21-8940), filed in March 2010, the Veteran indicated he had last worked on a full-time basis in July 2009 as a cook.  He reported that a combination of conditions prevented him from securing or following any substantially gainful occupation, and reported that he had been under a doctor's care and/or hospitalized within the past 12 months.  He said he had ongoing and continuous treatment by doctors and reported leaving his last job because of his disability.  He denied trying to obtain employment since he became too disabled to work.  He also noted that he had completed high school, but had no other training or education, to include training or education to be a cook.  He also provided a form with employment information (VA Form 21-4192) for his last employer, indicating he had worked as a short order breakfast cook for 20 hours each week, and that at the time the form was submitted in April 2010 he was still employed there, so presumably in this capacity.

He submitted an additional TDIU application in August 2012, wherein he stated that he had last worked full time in 2010, again as a chef or cook.  In this supplemental application, he stated his left wrist disability prevented him from securing or following any substantially gainful employment, but he denied being under a doctor's care or being hospitalized within the last 12 months.  He reported that he did not leave his last job because of his disability, and he had not tried to obtain other employment since he became too disabled to work.  Again, he reported a 12th grade education and denied any education or training both before and after he became too disabled to work.

He has been provided numerous VA compensation examinations assessing the severity of his service-connected disabilities.  Several of these examinations addressed his employability and noted his complaints that he was unable to do anything with his left hand.  During a May 2010 VA examination for his left wrist disability, the examiner observed that, at that time, the Veteran worked part-time, experienced a lot of pain in his wrist and hand, and had numbness and severe cramps.  That examiner noted the Veteran dropped things on the job and that at times his hands and fingers "locked up."  During a later November 2011 VA examination, the examiner noted the Veteran's reports of constant locking and pain.  During a September 2012 VA examination for the service-connected hypertension, the examiner noted that the Veteran had no surgery or hospitalizations for his hypertension, and opined that it did not impact his ability to work.  None of the VA examiners concluded the Veteran's service-connected disabilities, in particular his left wrist disability, precluded him from obtaining or retaining employment that would be considered substantially gainful versus just marginal in comparison.  See 38 C.F.R. § 4.18 (discussing situations when employment is offered only out of convenience or accommodation).

There also is other medical evidence of record discussing the Veteran's employability.  This evidence states that he should find work that limits the use of his left hand, but does not equate this type of work with the finding of marginal.  A VA progress note from February 2010 stated that, while the Veteran's left hand disability could make working as a full-time cook difficult, he could perform a less physically-demanding job.  The doctor noted that the Veteran had expressed interest in a job driving, presumably a truck driver; however, at the time he had not obtained such a job.  A January 2012 letter from a doctor at the VAMC) in Durham, North Carolina, indicated that, while the Veteran was limited in the use of his left hand, he had no other physical disability, i.e., no restrictions on the use of his right upper extremity and hand, back, or lower extremities.  So none of this evidence tends to suggest he would be precluded from performing all forms of substantially gainful employment, as opposed to just some, even when considering his level of education, prior work experience and training, etc.

In addition, the Board sees the Veteran has a number of other medical ailments for which he is not service connected.  While these disabilities alone or in combination with his service-connected disabilities may potentially make employment more difficult, there is simply no evidence of record indicating his service-connected disabilities alone render him unemployable.  He has a high school education and has reported no special education or training in cooking, but that resultantly would limit his employability to work as a cook or in another similarly meaningful capacity.

As the Court has stated, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail.  Van Hoose, 4 Vet. App. at 363.  That a Veteran is unemployed or has difficulty obtaining employment is not enough.  Id.  Accordingly, the preponderance of the evidence is against entitlement to a TDIU.  Consequently, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 55.


ORDER

The claim of entitlement to an initial rating higher than 20 percent for the left wrist disability on an extra-schedular basis is denied.

The claim of entitlement to a TDIU also is denied, including on an extra-schedular basis.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs