Citation Nr: 18158139 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 09-40 144 DATE: December 14, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1964 to May 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA). This case was most recently remanded in November 2015 and August 2017 for further development; it has since been re-assigned to the undersigned. The Board notes that VA asked the Veteran, through a letter mailed in January 2017, whether the he wanted to request a new hearing on his claim. However, in his July 2018 correspondence (VA Form 9), he declined a BVA hearing. Entitlement to TDIU As an initial matter, the Board notes that remand for a new VA examination is unnecessary in this case. Even if the Board found that the VA examinations of record did not adequately address the criteria in 38 C.F.R. §§ 4.40, 4.45, and 4.49, DeLuca v. Brown, 8 Vet. App. 202 (1995), Mitchell v. Shinseki, 25 Vet. App. 32 (2011), Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017), further development is unnecessary, because an estimate of the additional range-of-motion loss due to pain, excess fatigability, incoordination, or weakened movement during flare-ups or after repetitive use over time would have little probative value. Specifically, the Veteran is only service-connected for two right wrist disabilities. This issue rests, at least in part, on the fact that even if the Veteran’s service connected disabilities would render the right wrist to be completely ankylosed and/or his right median and ulnar nerves were completely paralyzed, that they would not, by themselves, render him unable to secure and follow substantially gainful employment. As such, remanding to determine the extent of the Veteran’s symptoms would only delay the claim, with no benefit to the Veteran, because there is no reasonable possibility that doing so will demonstrate that his service connected disabilities preclude gainful employment, regardless of the limitation of motion during a flare-up or after repetitive use. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33 (2016) (“A veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution.”). Similarly, remand to retrieve updated VA treatment records is also unnecessary. While VA has a duty to assist in obtaining VA treatment records it deems relevant, VA’s duty to assist is not unlimited. VA will refrain from providing assistance in obtaining evidence for a claim if there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. 38 C.F.R. § 3.159(d); Sullivan v. McDonald, 815 F.3d 786, 791-92 (2016). Once again, because this issue rests, at least in part, on the fact that even if the Veteran’s service connected right wrist was completely ankylosed and/or his median and ulnar nerves were completely paralyzed, that they would still not render him unable to secure and follow substantially gainful employment, any information retrieved in updated VA treatment records would not substantiate the claim. Thus, the Board finds that remand to obtain such records is unnecessary and will proceed with the adjudication of the appeal. Analysis Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability 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 service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would warrant TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). 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). In this case, the Veteran is currently service-connected for mild right wrist median nerve paresthesia/atrophy of intrinsic muscles with ulnar nerve involvement (40 percent) and right wrist arthritis (10 percent). His total disability rating is currently 50 percent. Therefore, the requirements under 38 C.F.R. § 4.16(a) have not been met. While the Veteran fails to meet the applicable percentage standards, the Board has nevertheless considered whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, and whether TDIU is warranted on an extraschedular basis. However, the Board finds that TDIU is not warranted on this basis. The evidence of record is comprehensive in that the Veteran has right upper extremity pain, weakness, and decreased range of motion (ROM) and sees himself as severely disabled, although it also appears that much of his impairment is related to multiple non-service-connected disabilities such as left knee arthritis status post a torn meniscus, HIV/AIDS, glaucoma, coronary artery disease (status post bypass surgery and stent placement), hypertension, and a pulmonary nodule (causing a severe obstruction with shortness of breath, sleep disturbance, and daytime somnolence). See VA treatment records dated June 2016, May 2014, and December 2010. While the Veteran consistently reported right wrist/hand pain and functional limitations, the record reflects that the Veteran’s reporting of his inability to work has been inconsistent. Indeed, he has reported several different years in which he stopped working as a bricklayer (1966, 1986, 1992, 2001) and in December 2010 he reported that he was still working as a bricklayer/construction worker but has difficulty doing the job secondary to knee pain. See VA treatment records dated January 1998, April 2007, March 2009, December 2010, and May 2016; November 2011 hearing testimony. His inconsistent reporting and reference to his non-service-connected disability substantially contributing to an inability to work is considered significantly probative evidence that his service-connected disabilities are not the disabilities preventing him from working. While the Veteran has many disabilities, the Board’s analysis for TDIU must be confined only to the symptoms arising from ones that are service-connected. In this regard, the Board notes that the Veteran has reported that while his right wrist disability causes some difficulty at home “trying to move things around,” and preparing meals, he also reported that has no difficulty with activities of daily living, housework, shopping, and using telephone (he uses the left hand to help him do his chores). See VA treatment records dated May 2016 and June 2016. Even if his right upper extremity was objectively observed to be as severe as he reports, it would still not render him unable to secure and follow substantially gainful employment given the nature of the activities that he has regularly performed based on his service-connected disabilities alone. Indeed, even if his right wrist/hand was completely ankylosed and/or paralyzed, he would still be able to secure and follow substantially gainful employment. There are numerous jobs that can be done with the use of one hand. As a result, no matter the intensity of his service-connected disabilities as reported by the Veteran, his service-connected disabilities alone do not prevent him from securing and following substantially gainful employment. A VA provider in December 2010 diagnosed mild right wrist median paresthesia and atrophy of the intrinsic muscles. He noted right wrist range of motion was only minimally limited with normal strength and good coordination; the Veteran was independent in all activities of daily living; and the Veteran did construction work/brick layer but has difficulty in doing job secondary to knee pain. At a more recent VA neurological examination in May 2016, a VA examiner diagnosed mild median paresthesias and atrophy of right thenar and intrinsic muscles, but noted normal reflexes and only a slight decrease in strength. A VA orthopedic examiner in May 2016 diagnosed a right wrist flattened thenar eminence and atrophy at the web space and intrinsic hand muscles with decreased range of motion. While she noted the Veteran had difficulty at home with trying to move things around, he uses the left hand to help him do his chores and there was no ankylosis. During a June 2016 care coordination assessment, the provider noted that the Veteran reported to the office ambulatory with a steady gait and no use of any assistive device. He had a normal mental status exam and was independent of all activities of daily living. He was residing between family in Alabama and friends in New York. Despite difficulty with preparing meals, the Veteran reported he had no difficulty with activities of daily living, housework, shopping, using telephone, and managing finances and medications. The Veteran’s son-in-law J.W. reported that he has known the Veteran for over ten years, he does not have full use of right hand, and his right hand locks up during the winter. See March 2009 statement. While these lay statements are deemed competent and credible to the extent that they are observations of the Veteran’s behavior, the still do not support a finding that the Veteran’s service connected disabilities render him unemployable. Again, the record does not show that even if the Veteran were to have no use of his right hand, that he is unable to secure gainful employment. Consideration has been given to the Veteran’s statements that his service-connected disabilities render him unemployable. See November 2011 hearing testimony; April 2014 correspondence; February 2017 appellate brief. However, his statements are given little probative weight because they are inconsistent and contradict his other statement (including the evidence of record) that his non-service-connected disabilities substantially contribute to his inability to work, and a number of medical professionals who have provided the Board with their own assessments of the extent of his service-connected disabilities and the impact they have on his ability to function. See VA treatment records dated January 1998, April 2007, March 2009, December 2010, and May 2016; November 2011 hearing testimony. These providers noted that functioning would be difficult but did not state gainful employment was not possible. Notably, the record does not include an opinion supported by objective medical evidence indicating that the Veteran’s service-connected conditions prevent him from sustaining gainful employment and he failed to respond to a VA letter that requested he complete and return a TDIU application (VA Form 21-8940). See May 2018 Director of Compensation Service correspondence; March 2016 VA correspondence. Finally, the Board notes that, while not a binding decision, the Director of Compensation Services found, in May 2018, that the Veteran’s service connected disabilities do not render him unable to secure gainful employment. Indeed, the Director noted that “none of the available evidence supports the Veteran’s contention that any of his service connected disabilities or a combination of the effects of the service connected disabilities prevents all employment.” The Board agrees. In sum, the lay and medical evidence of record, including some of the Veteran’s own statements, significantly outweigh the evidence supporting a determination that the Veteran is entitled to TDIU. Because a preponderance of the evidence is against a finding that the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities, TDIU is not warranted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel