Citation Nr: 1752430 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-08 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an extraschedular rating for residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had active duty service from January 1969 to May 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which continued a 10 percent rating assigned for residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis. In September 2014, the Board issued a decision that granted a 20 percent rating for residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis, and remanded the issues of entitlement to an extraschedular rating based on the combined effect of service-connected disabilities and entitlement to a TDIU. FINDINGS OF FACT 1. The available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology associated with the service-connected residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis. 2. The Veteran's combined rating for service connected disabilities was 20 percent from November 9, 2009, 40 percent from June 30, 2010, 50 percent from April 1, 2012, and 60 percent from April 6, 2015. 3. For the period of the claim prior to April 6, 2015, the Veteran did not meet the schedular requirements for a TDIU and his service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. 4. Resolving reasonable doubt in the Veteran's favor, the evidence of record demonstrates that his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation as of April 6, 2015. CONCLUSIONS OF LAW 1. The criteria for assignment of an extraschedular rating for residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321(b) (2017). 2. As of April 6, 2015, but no earlier, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Extraschedular rating for residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2017). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The U.S. Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In September 2014, the Board determined that based on the combined effects of the Veteran's service-connected disabilities, and the severe limitation on the Veteran's mobility, the rating schedule did not contemplate the Veteran's level of disability and symptomatology. The Board cited notations in the Veteran's outpatient treatment records showing that due to the Veteran's left ankle disability, he must use a wheelchair or crutches for mobility, but that he can only use them for a very limited amount of time because of the pain from his right thumb and right wrist disabilities. The Board also noted that because of such limited mobility, the Veteran had indicated that leaving his house is "close to impossible." The Board also noted that the Veteran claimed that his bathroom - which had already been fitted with handrails, elevated toilet, and shower seat - was less accessible to him as his disabilities worsen. Since the Board's September 2014 remand, the Court issued a decision in Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Yancy held that although the Board must consider any combined effects resulting from all of a claimant's service-connected disabilities insofar as they impact the disability picture of the disabilities on appeal, it lacks jurisdiction to consider whether referral is warranted solely for any disability or combination of disabilities not in appellate status, just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal. In September 2014, the only service-connected disability on appeal before the Board was the residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis. Given the holding in Yancy, the Board lacked jurisdiction to consider referral of an extraschedular rating for all of the Veteran's service-connected disabilities in September 2014. Thus, the Board will limit its discussion to the issue of whether the Veteran is entitled to an extraschedular rating for residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis, as reflected on the title page. The Board notes that neither the Veteran nor his representative has presented any argument in support of an extraschedular rating for either the right thumb disability or the combined effects of the Veteran's service-connected disabilities. In this case, the Veteran's residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis, disability picture is not so unusual or exceptional in nature as to render the schedular evaluation assigned inadequate. The Veteran's residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis, has been rated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5228 throughout the appeal period. In its September 2014 decision, the Board initially determined that the Veteran did not meet the criteria for a rating in excess of 10 percent under that diagnostic code before concluding that the assignment of a 20 percent rating was warranted based on the additional functional loss involving the right thumb due to pain and weakness. In coming to this conclusion, the Board specifically found the functional loss associated with the Veteran's right thumb disability may be viewed as equating to limitation of motion to support a 20 percent rating under Diagnostic Code 5228. The Board also considered other diagnostic criteria pertaining to the thumb, specifically Diagnostic Codes 5152 and 5224, but found they were not applicable either separately or in the alternative since the maximum rating under Diagnostic Code 5224 was also 20 percent for unfavorable ankylosis; the Veteran still had some use of his thumb to hold and grip items so the extent of his disability is not equivalent to amputation under Diagnostic Code 5224; and the Veteran's thumb had not been amputated and his symptoms do not more nearly approximate amputation such that Diagnostic Code 5152 did not apply. The Board acknowledges the written statements made by the Veteran regarding his right thumb disability, namely that the condition was worsening, as evident in the fact that he was undergoing physical therapy and that surgery was being discussed; and that he had no grip because of his right thumb. The Board also acknowledges the Veteran's reports related to his right thumb disability documented in VA treatment records and VA examination reports, to include not being able to use his hand very much due to pain; difficulties with grasp and dropping objects; and worsened right thumb pain and reduced motion and gripping power. Finally, the Board acknowledges the objective manifestations related to the right thumb disability reported in VA treatment records and by the December 2009 and June 2011 VA examiners, to include poor grip, bony swelling/enlargement of the MCP joint, pain with range of motion testing, decreased strength, decreased dexterity, and mild to severe effects on usual daily activities such as chores, shopping, exercise, sports, recreation, traveling, feeding, bathing, dressing, toileting and grooming; and that the June 2011 VA examiner also reported swelling, deformity, weakness and stiffness of the right thumb, additional loss of motion with repetition motion, and right thumb ankylosis. When taking the subjective and objective evidence of record into consideration, however, the Board finds that decreased grip, decreased strength, and decreased dexterity as a result of pain, swelling, deformity, weakness and stiffness, with resultant effects on various daily activities, are contemplated by the rating criteria used to evaluate the right thumb disability as these manifestations and functional limitations are all related to loss or reduced right thumb motion. Moreover, when the Board assigned a 20 percent rating for the Veteran's right thumb disability in September 2014, it clearly articulated that it was considering the functional limitations due to pain and weakness in the assignment of the rating because even though the Veteran did not manifest loss of right thumb motion needed to meet the criteria for the assignment of a 20 percent rating, the functional loss was equated to the limitation of motion needed to support a 20 percent rating under Diagnostic Code 5228. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person 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, this disability shall be ratable at 60 percent or more, or 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. For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident will be considered as one disability. See 38 C.F.R. § 4.16 (a). The Veteran is service-connected for left ankle fracture with surgical ankylosis and residual scar, rated as 20 percent disabling from June 20, 2010, as 30 percent disabling from April 1, 2012, and as 40 percent disabling from April 6, 2015; left below the knee amputation, rated as 40 percent disabling from April 1, 2016; residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis, rated as 20 percent disabling from November 9, 2009; residuals, radial fracture, right wrist, to include degenerative joint disease, rated as 10 percent disabling from June 30, 2010; and surgical scar associated with left below the knee amputation, rated as noncompensable from December 29, 2015. The Veteran's combined rating has been 60 percent since April 6, 2015. Given that the service-connected disabilities result from a common etiology with a combined rating of 60 percent, the schedular requirements set forth in 38 C.F.R. § 4.16(a)(2) for consideration of TDIU have been met as of April 6, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. Prior to April 6, 2015, however, the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a)(2) were not met. The Board remanded the claim in September 2014 pursuant to the provisions of 38 C.F.R. § 4.16(b), which provides for referral of cases for extraschedular consideration if a Veteran is unemployable by reason of service-connected disability, but does not meet the schedular requirements for consideration under 38 C.F.R. § 4.16(a). For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with equal rating of disability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran has not provided any written assertions regarding whether he is entitled to a TDIU, and he did not submit the VA Form 21-8940 when requested by the RO pursuant to the Board's September 2014 remand instructions. The evidence in this case consists of VA and private treatment records, records obtained from the Social Security Administration, several VA examination reports, and an opinion obtained from the Director of Compensation. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Upon review of the record, and after resolving all doubt in the Veteran's favor, the Board finds that for the period of the claim from April 6, 2015, entitlement to a TDIU is warranted. As noted above, the Veteran met the schedular criteria for a TDIU from that date, with a combined rating of 60 percent for disabilities resulting from a common etiology. 38 C.F.R. § 4.16(a). In support of this conclusion, the Board notes that the April 2015 VA examiner indicated that the Veteran's left ankle condition impacted his ability to perform any type of occupational task, specifically noting that the Veteran could not use the left leg and foot for standing due to instability that causes falls; had no propulsion with the left ankle/foot; could not negotiate uneven surfaces even with a walker; and if he sat for prolonged times, the swelling worsened, increasing the pain. The Board further notes that the May 2016 VA examiner indicated that the Veteran's amputation impacted his ability to work, noting that until he had a prosthesis, he was precluded from even office employment. In relying on the May 2016 opinion, the Board does acknowledge that VA treatment records document that the Veteran was subsequently provided a prosthesis in August 2016 and that after some initial problems, was consistently using it beginning in approximately October 2016. For the period of the claim prior to April 6, 2015, the Board notes the Veteran does not meet the schedular criteria for a TDIU. Prior to this date, the only service-connected disabilities were those affecting the right thumb and wrist and the left ankle, and the Veteran's combined rating for these disabilities was less than 60 percent. While there is evidence that the Veteran had not been working since 2009 and he did report his right hand disabilities as problematic, he mostly cited non-orthopedic problems (coronary artery disease/CABG and colon cancer) as the reason for his retirement as a heavy equipment operator in 2009. See VA examination reports. Furthermore, review of records obtained from the Social Security Administration reveal that the Veteran is in receipt of benefits as a result of heart conditions, specifically a primary diagnosis of cardiomyopathy and a secondary diagnosis of ischemic heart disease, and that when seeking benefits from that agency, he mainly reported problems associated with his heart and colon cancer, to include fecal incontinence resulting in the frequent need to use the restroom, rather than orthopedic problems, although he did note some problems associated with his right hand. The Board acknowledges that several VA examiners indicated that the Veteran's orthopedic problems and need for narcotic medications impacted his ability to work, with examiners in January 2009 and December 2009 asserting that employment was precluded because of his right hand disabilities. The Director of Compensation, however, determined that the VA medical examinations showed a decrease in work efficiency and intermittent periods of inability to perform occupational tasks without preclusion to sedentary occupational activity. Moreover, the Director indicated that the Veteran has several nonservice-connected disabilities that had not been differentiated from his service-connected conditions. The Board agrees, since review of the medical evidence in its totality indicates that the Veteran's functional limitations prior to April 6, 2015 were predominantly due to a colon cancer diagnosis and his heart disabilities, none of which are service-connected. For these reasons, the Board concludes that the Veteran's service-connected disabilities, alone, did not render him unable to secure and follow a substantially gainful occupation and that entitlement to a TDIU is not warranted on an extraschedular basis prior to April 6, 2015. ORDER An extraschedular rating for residuals of fractures, base of proximal phalanx, right thumb, with traumatic arthritis, is denied. For the period of the claim prior to April 6, 2015, entitlement to a TDIU due to service-connected disabilities is denied. From April 6, 2015, entitlement to a TDIU due to service-connected disabilities is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs