Citation Nr: 1806872 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-02 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of orbital bone fracture, to include diplopia. 2. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of right hand injury, to include stiffness. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of orbital bone fracture, to include diplopia, as a result of orbital surgery performed at the Milwaukee VA Medical Center (VAMC) in April 2010 is denied. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of right hand injury, to include stiffness, as a result of treatment for right hand injury performed at the Milwaukee VAMC is denied. Entitlement to a TDIU is denied. FINDINGS OF FACT 1. An additional disability manifested by residuals of right orbital fracture, to include diplopia, did not result from the Veteran's orbital surgery at a VA medical facility in April 2010. 2. There is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part with respect to the April 2010 orbital surgery. 3. An additional disability manifested by residuals of right hand injury, to include stiffness, did not result from the Veteran's right hand injury treatment at a VA medical facility. 4. There is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part with respect to the treatment received for the Veteran's right hand injury. 5. The Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for additional disability as a residual of VA orbital surgery have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2017). 2. The criteria for compensation under 38 U.S.C. § 1151 for additional disability as a residual of VA treatment for right hand injury have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2017). 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to December 1965. This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In August 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. I. Claims under 38 U.S.C. § 1151 Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See 38 U.S.C. § 1151. For a claimant to qualify for such compensation, the additional disability must not be the result of the claimant's willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the claimant under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. To determine whether a claimant has additional disability, VA compares the claimant's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the claimant's condition after such care, treatment, or examination is completed. To establish actual causation, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the claimant's additional disability or death. Merely showing that a claimant received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability or death is the action or event which directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a claimant's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the claimant's additional disability or death, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the claimant's, or in appropriate cases, his representative's, informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a claimant's additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A. Residuals of Orbital Bone Fracture In this case, the Veteran seeks benefits under 38 U.S.C. § 1151 for additional disability of the orbital bone of the right eye, claimed as a result of VA surgical procedures following a diagnosis of an orbital fracture. Specifically, the record reflects the Veteran was initially admitted to Waukesha Memorial Hospital in early January 2010, following a fall from a roof, and was transferred to the Milwaukee VAMC on January 22, 2010. There, he underwent surgical procedures, to include an orbitotomy and orbital implant for a right orbital floor fracture with diplopia. The Veteran asserts that the physician who reviewed an x-ray of his head indicated that surgery was necessary within 30 days of the fracture. He further asserted that proper alignment of the bone could not be accomplished after 30 days. The Veteran further stated that he was to have his surgery on February 4, 2010 and that several days prior to the surgery, was told that he cancelled the appointment and could not be rescheduled until April 15, 2010, which he noted was 43 days too late. The Veteran has asserted that he was told by his attending ophthalmologist that his vision impairment is the result of the delayed surgery. He has reported symptoms of visual impairment, to include nausea, dizziness, disorientation, loss of reference, balance problems, and difficulty writing and working on the computer. A January 25, 2010 VA treatment record shows that the Veteran presented for consultation following a fall from a roof on January 8, 2009. The Veteran reported vertical diplopia since injury that was present in primary gaze and worse on upgaze. He was noted to have a right orbital floor fracture at the outside hospital. He did not have any blurring of vision, eye pain, or discharge. Upon current examination, the Veteran was alert and oriented times three with no apparent distress. There was no afferent pupillary defect trace depression to supraduction bilaterally. The Veteran's visual fields were full to confrontation. He was assessed as having a fractured right orbital floor with diplopia in primary gaze (vertical), resolved with 2 PD OD for right hypotropia. It was further noted that diplopia may be from slight hypoglobus and that supraduction seemed minimally limited. The Veteran was given a fresnel prism to try. There was no enophthalmos. The plan was for the Veteran to follow-up in one month for repeat dilated fundus examination (DFE) or sooner with occuloplastics, depending on CT scan results. A January 26, 2010 VA treatment record addendum notes that the Veteran was to be evaluated in oculoplastics on January 29, 2010 for preoperative and consider right orbital floor fracture repair on February 12, 2010. VA treatment records show that the Veteran was scheduled for an appointment with oculoplastics on February 12, 2010, but he cancelled this appointment. Cancellation remarks indicated "patient cannot make this date." A March 12, 2010 VA treatment record reflects a follow-up regarding the Veteran's right orbital floor fracture. The Veteran reports vertical diplopia since the January 8, 2010 injury, present in primary gaze, worse on upgaze, improved with fresnel but not completely resolved. He did not have any pain or emesis. He reported nausea on extreme upgaze. The Veteran was scheduled for right anterior orbitotomy and right orbital floor fracture repair, and possible right orbital implant in April 2010. It was noted that orbital surgery was not emergent as the Veteran was already two months out from injury and most likely had scarring. An April 2010 VA treatment record reflects a preoperative and postoperative diagnosis of right orbital floor fracture with diplopia. After fully informed consent was obtained, the Veteran was brought to the operating room. It was noted that the Veteran was aware diplopia may persist following surgery with risk of numbness and loss of vision. He later underwent a right anterior orbitotomy and a right orbital floor fracture with orbital implant. A later April 2010 VA treatment record reflects that the Veteran was doing well and overall happy with his vision. There was no diplopia. He still had some nausea and pulling sensation on upgaze, but other positions of gaze improved. A May 21, 2010 VA treatment record reflects the Veteran's report of occasional binocular vertical diplopia upon awakening in the morning, but it was not too bothersome. He further reported nausea on sustained up-gaze, but was improved from the preoperative level and he was able to look down more easily. A November 22, 2010VA treatment record shows that the Veteran reported that when he looked down at the ground it looked like a "fish bowl," and stated that on up-gaze there was diplopia. He reported the prisms did not work for him due to variability in his diplopia. In December 2010, VA obtained an opinion regarding the Veteran's residuals of an orbital bone fracture claim. The examiner noted that the Veteran was a 67-year-old male who took a fall on January 8, 2010 and was admitted initially to Waukesha Memorial Hospital and was transferred to the VA on January 22, 2010. The Veteran fell from an 18 foot high roof and when he fell to the ground he sustained multiple injuries including a right orbital floor fracture. On reviewing medical records, he was initially seen by VA Ophthalmology on January 25, 2010 and diagnosed with right orbital floor fracture with vertical diplopia and on primary gaze, which was 2 prism diopters in the right eye for right hypotropia that resolved with correction. The Veteran was followed up on January 29, 2010 and scheduled for orbital floor fracture repair on February 12, 2010, but the Veteran contends that the appointment was cancelled. He was not able to be seen again until March 12, 2010 for a preoperative examination for the right orbital floor fracture. At that time, he consented for right anterior orbitotomy, right orbital floor fracture with possible implant, and he agreed to proceed and was aware at that point that diplopia may persist following surgery. The repair was performed on April 15, 2010 with a right orbital floor fracture repair with an orbital SupraFOlL 0.3 mm nylon implant. The CT scan that was reviewed prior to that showed a large right orbital floor fracture with soft tissue herniation. There was no evidence of inferior rectus entrapment on admission, but it did show on preoperative examination that inferior rectus was drawn towards the bony defect. The Veteran, on postoperative visits, reported improvement with his diplopia, and he reported new diplopia on up-gaze, but not on primary gaze on the April 22, 2010 visit. The Veteran was again followed up on May 21, 2010 and reported occasional binocular vertical diplopia upon awakening in the morning, but it was not too bothersome. He did report nausea on sustained up-gaze, but was improved from the preoperative level and he was able to look down more easily. The Veteran then again followed up most recently on November 22, 2010, and reported that when he looked down at the ground it looked like a "fish bowl," and stated that on up-gaze there was diplopia. He reported the prisms did not work for him due to variability in his diplopia. Following review of the Veteran's medical history and reviewing the literature, the examiner stated that the timing of surgical repair for acute orbital floor fracture depends on many factors including age, mechanics of injury, as well as involvement of extraocular muscles and fracture. Typically, for a case like the Veteran's, it is recommended that the fracture is repaired within two weeks, with varying levels of evidence. However, once that two-week mark has passed, there is no good evidence that shows the different results for early repair versus later repair. The examiner pointed out that the Veteran had already been two weeks post injury upon admission to the VA Hospital in Milwaukee and the scarring had already occurred. It was unlikely that the delay in the repair from mid-February to mid-April had a significant impact on postoperative results. The examiner further noted that on the "Op-Report", it was mentioned that there was significant scarring, but opined that it was less likely as not caused by or a result of delay in surgery due to cancellations of his appointment as the planned surgery day was already over a month after the injury. B. Residuals of Right Hand Injury The Veteran asserts that he suffers from residuals of right hand injury, to include stiffness, which is a result of mishandling his right hand injury during treatment at the Milwaukee VAMC. A January 29, 2010 VA treatment record shows that the Veteran was transferred to the VA on January 22, 2010 after falling off an 18 foot high roof on January 8, 2010 and was taken to Waukesha Memorial Hospital, where he was for two weeks, before being transferred to the VA system for additional evaluation and management. The Veteran's hospital course at Waukesha Memorial was noted within the January 29, 2010 VA treatment record, to include that the Veteran saw orthopedic surgery for right upper extremity injury on January 9, 2010. There were some right hand fractures and a possible scaphoid fracture, but all of these fractures were non-displaced. Orthopedic surgery recommended immobilization for comfort, and treatment of swelling symptomatically, especially given his arthritis. They recommended a hand splint with buddy taping of the index finger and long finger. Examination of the Veteran's wrist/metacarpal fractures resulted in a diagnosis of fractures of the right thumb and first metacarpal and possible navicular or scaphoid fracture. The Veteran's hand/wrist was placed in a brace. Upon arrival at the VA medical center, the Veteran was seen by orthopedics and referred to the plastics hand team. Plastics gave him a new brace and ordered x-rays, which showed thumb and index finger fractures with degenerative changes in wrist, but not wrist bone fractures. Plastics also recommended hand physical therapy. The Veteran received Tramadol and Tylenol for the pain. On discharge, he was to be followed-up with the plastics clinic. The plan for follow-up was an appointment with plastics in three to four weeks. A February 11, 2010 VA treatment record shows that the Veteran presented for treatment regarding hand/wrist fractures. The treatment note history indicates that the fractures occurred when he fell from a 16 foot roof on January 8, 2010. The note reflects that the Veteran had been seen in Waukesha Memorial Hospital and at the VA by multiple consulting teams for multiple issues resulting from that fall. It was noted that he had been seen previously in the plastic surgery clinic for his hand, and his hand was placed in a splint, as the Veteran experienced pain from his arthritis as his hand would swell. It was also noted that the Veteran had a history of trigger finger and received injections in the past. He requested injections now as he was experiencing pain in his 1st and 2nd right metacarpophalangeal (MCP) joints. A February 17, 2010 VA treatment record shows that the Veteran had severe slack wrist, severe thumb carpometacarpal (CMC) arthritis, and radiocarpal arthritis. The record reflected that he was recently seen approximately three weeks ago for some hand discomfort after sustaining a fall three weeks prior to his last doctor's visit. The fall consisted of falling on an outstretched right hand, and x-rays at that time revealed a right index and right thumb metacarpal fracture. He was presented for current treatment after having been placed in a splint for the past three weeks. His pain was completely resolved after he had his wrist injected with steroids for arthritis. Currently, he presented with no pain and had an x-ray done as well. Physical examination revealed that the Veteran had no point tenderness over the radiocarpal joint as well as over the CMC. He had no pain overlying the fractures of the index and thumb metacarpal fracture. He had relatively good motion at the wrist. He was in a thermoplast splint which had the fingers in a good intrinsic plus position. Current x-ray showed a healing spiral fracture of the index finger metacarpal as well as base of thumb metacarpal fractures. There was still no callus formation and no osseous union. He also had active triggering of his contralateral left hand, middle, and ring fingers. The assessment was a healing fracture of right index and thumb metacarpal, which was in a splint, along with the trigger finger of left ring and long finger. Current x-ray showed that his fractures were still well aligned. The VA physician wanted to have the Veteran continue his splint for at least another three weeks, at which time they would repeat x-ray prior to his next appointment. Also, the VA physician injected steroids into his left flexor tendon sheath of the ring and long fingers for his trigger fingering. He wanted to see the Veteran again in three weeks. He suggested placing the Veteran in a cast; however, the Veteran was "very adamantly against this" and would not allow the physician to place him in a cast for his fractures. Therefore, the plan was to keep the Veteran in the splint. He was told to keep the splint on 24 hours a day, seven days a week and to only take it off for showering. The Veteran was aware of that instruction and stated that he would comply. A March 10, 2010 VA treatment record shows the Veteran was not wearing his splint. His thumb fracture was healed. The triggering of fingers in his left hand was okay. He now complained of right finger triggering. He also complained of stiffness of the right finger MCP. He was to have physical therapy referral and be followed-up in six weeks. X-rays were taken of the Veteran's right hand during March 24, 2010 VA treatment record. X-rays of the right hand were not significantly changed from examination on February 17, 2010. Again, present were healing nondisplaced fractures in the shaft of the second metacarpal and the base of the first metacarpal. There was severe degenerative disease in the scaphomultangular and first and second carpometacarpal joints. Milder degenerative disease was present in the radiocarpal joints and the second through fifth distal interphalangeal joints. It was noted that the Veteran was previously treated by the writer post-operatively after having five ganglion cysts removed. It was noted that the Veteran fractured his hand on January 8th after falling 23 feet and landing on concrete. The Veteran fractured his right hand, lacerated his liver, fractured his orbital bone, and had cervical fractures, in addition to rib fractures. The Veteran also reported that he had fractured his right wrist the prior year on Easter. The Veteran now complained of residual stiffness, weakness, and pain to MCP joints. He stated, "I drop everything." The Veteran also reported that his thumb was completely numb, and "my IF is useless." The plan was for physical therapy and to see plastics in April 2010. The treatment plan was patient education, therapeutic exercise, modalities, mobilization of joint/soft tissue, functional training/activities, and home exercise progression. An April 2010 VA treatment record shows that the Veteran presented for treatment with complaints of triggering. He also complained of an inability to get fingers fully flexed. He received injections for three trigger fingers. A July 2010 VA treatment record reflects that the Veteran wanted to know what could be done for improving his right hand. His 2nd MC spiral was now healed, but the Veteran believed he should have better hand movement. X-rays were reviewed and it was observed that there was a lot of arthritis and the 2nd MC was healed. Upon observation, it was further noted that the Veteran lacked full flexion of the right hand fingers and he was unable to fully flex his index finger. He was taught flexion exercises to separate the movement of each joint in the fingers. He was provided a hand gripper and putty from physical therapy. The Veteran was to continue to move his fingers every day with these exercises and return in three months. An October 2010 VA treatment record reflects the Veteran's complaints of being unable to make a fist. The Veteran was informed that between the period of immobilization required to heal the MC fracture and the severity of his osteoarthritis, there was some range of motion loss about the MCP that would likely improve with physical therapy, range of motion exercises, and putty work; and that there were no surgical options for him at this time. In March 2011, VA obtained opinion regarding the Veteran's right hand injury claim. The examiner related the Veteran's history of sustaining multiple injuries including spine injuries and right hand injuries due to a fall from a roof in January 2010. He was first hospitalized for about two weeks at Waukesha Memorial Hospital before being transferred to the Milwaukee VA hospital. There, he was seen by orthopedics and plastic surgery in regards to hand injuries. He had index and thumb metacarpal fractures. The examiner stated that these appeared to have been treated appropriately by splinting. The examiner reviewed the available hospital notes as well as post-hospital follow-up from February 17, 2010 and post hospital follow-up from March 10, 2010. On February 17, 2010, he was seen to be in a Thermoplast splint with the fingers in a "good intrinsic plus position." X-rays showed healing spiral fracture of the index finger metacarpal as well as the base of the thumb metacarpal. There was not full healing seen; therefore, it was recommended that the Veteran go into a cast or a splint. He refused a cast and was put into a splint. He was then seen March 10, 2010 by a plastic surgery resident. He was not wearing his splint, but his fractures had healed. He was complaining of triggering of the ring finger and index finger on the right hand, and was somewhat stiff at the ring finger metacarpophalangeal joint. It was noted this was likely secondary to casting. He was given a referral to physical therapy, and his trigger fingers themselves were injected. The examiner pointed out that the Veteran had prior known arthritis of his hand as well as trigger fingers of his hands, which had been treated by plastic surgery in the past with procedures and injections. The Veteran had difficulty flexing fingers in physical therapy. The examiner opined that it was less likely than not that there was any carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault in the handing of the Veteran's right hand injuries. The examiner further opined that it was less likely than not that this was an event that was not reasonably foreseeable. In other words, stiffness after splinting for hand fractures is common. It is a known sequela of splinting or casting for any injury. Especially for a patient with prior arthritis, immobilization with a cast or a splint will result in temporary stiffness which can be resolved with physical therapy and work of the patient on his own. This was not a complication. The Veteran was treated appropriately with splinting for his hand injuries. There was no true disability caused by the treatment of his injuries. The examiner opined that it was less likely than not that there was a failure on the part of the VA to timely diagnose or properly treat the claimed disease or disability. It was less likely than not that the claimed disability was caused by or became worse as a result of the VA treatment at issue. It was less likely than not that the additional disability resulted from carelessness, negligence, lack of skill or similar incidents of fault on the part of the VA personnel. There was no evidence of fault as there was no true permanent harm or disability. The examiner reiterated that stiffness after splinting is a common known issue, but not a complication. The examiner concluded by stating that the Veteran was treated appropriately. II. Analysis In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). While the Veteran is competent to discuss his history and observable symptomatology, he does not possess the requisite skill or training to address more complex medical questions such as etiology or causation for his present disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Here, distinguishing one condition from another, and determining the cause of a condition where more than one cause is possible and the cause is not obvious or within common knowledge, are complex matters that cannot be competently addressed by someone without medical expertise. The record does not show that the Veteran has such expertise. With regard to the Veteran's residuals of right orbital bone fracture, the December 2010 VA examiner was aware of the Veteran's relevant medical history from review of the VA claims folder. Moreover, the examiner referred to the Veteran's contentions that there was fault on the part of VA in having canceled his initial appointment for orbital floor fracture repair in February 2010 and the delay caused by not being seen again until March 12, 2010 for a preoperative examination for the right orbital floor fracture, resulting in the claimed disability. The Board further notes that the examiner's opinion did not contain any equivocal or speculative language, and that the opinion was supported by stated rationale. Specifically, that the timing of surgical repair for acute orbital floor fracture depends on many factors including age, mechanics of injury, as well as involvement of extraocular muscles and fracture. The examiner stated that for a case like the Veteran's, it is recommended that the fracture be repaired within two weeks, with varying levels of evidence. However, once that two-week mark has passed, there is no good evidence that shows the different results for early repair versus later repair. The examiner pointed out that the Veteran had already been two weeks post injury upon admission to the Milwaukee VAMC and the scarring had already occurred. The examiner opined that it was unlikely that the delay in the repair from mid-February to mid-April had a significant impact on postoperative results. The examiner further noted that on the operation report, it was mentioned that there was significant scarring, but opined that it was less likely as not caused by or a result of delay in surgery due to cancellations of his appointment as the planned surgery day was already over a month after the injury. Moreover, the Board notes that VA treatment records clearly show that the Veteran himself cancelled the scheduled appointment with oculoplastics on February 12, 2010, because he could not make this date. There is no evidence that VA cancelled this appointment other than the Veteran's unsupported allegations. In any event, regardless of the reason for the appointment cancellation, the examiner noted that the delay between the initial appointment and the later appointment did not cause the any additional disability. There is no competent medical evidence of record which specifically refutes the December 2010 VA examiner's opinion, nor has any prejudice been identified therein. In view of the foregoing, the Board finds that the Veteran's residuals of right orbital bone fracture, to include diplopia, was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment in April 2010. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and compensation under 38 U.S.C. § 1151 is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Similarly, with regard to the Veteran's right hand injury, the March 2011 VA examiner opined that it was less likely than not that there was any carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault in the handing of the Veteran's right hand injuries. The examiner further opined that it was less likely than not that this was an event that was not reasonably foreseeable. In other words, stiffness after splinting for hand fractures is common. It is a known sequela of splinting or casting for any injury. Especially for a patient with prior arthritis, immobilization with a cast or a splint will result in temporary stiffness which can be resolved with physical therapy and work of the patient on his own. This was not a complication. The Veteran was treated appropriately with splinting for his hand injuries. There was no true disability caused by the treatment of his injuries. The examiner also pointed out that in February 2010, x-rays did not show full healing of his spiral fracture of the index finger metacarpal as well as the base of the thumb metacarpal; therefore, it was recommended that the Veteran go into a cast or a splint. However, he refused a cast and was put into a splint. When the Veteran was later seen in March 2010, he was not wearing his splint, but his fractures had healed. The examiner additionally opined that it was less likely than not that there was a failure on the part of the VA to timely diagnose or properly treat the claimed disease or disability. It was less likely than not that the claimed disability was caused by or became worse as a result of the VA treatment at issue. It was less likely than not that the additional disability resulted from carelessness, negligence, lack of skill or similar incidents of fault on the part of the VA personnel. There was no evidence of fault as there was no true permanent harm or disability. The examiner reiterated that stiffness after splinting is a common known issue, but not a complication. The examiner concluded by stating that the Veteran was treated appropriately. Moreover, the Board notes that the October 2010 VA treatment record shows that the Veteran was informed that between the period of immobilization required to heal the MC fracture and the severity of his osteoarthritis, there was some range of motion loss about the MCP that would likely improve with physical therapy, range of motion exercises, and putty work; and that there were no surgical options for him at this time. The VA examiner's findings and conclusion were supported by numerous medical treatment records. Ultimately, the preponderance of evidence indicates that the Veteran developed stiffness as a result of his right hand injury treatment. However, there is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part with respect to such treatment. There is no medical evidence of any current right hand disability caused by an event not reasonably foreseeable. Again, stiffness after splinting for hand fractures is common and is a known sequela of splinting or casting for any injury. As the examiner pointed out and as expressed to the Veteran during VA treatment, for a patient with prior arthritis, immobilization with a cast or a splint will result in temporary stiffness which can be resolved with physical therapy and work of the patient on his own. Lastly, the Board notes that in September 2010, VA sent the Veteran a letter in which VA's receipt of a September 2010 VA Form 21-4142 related to private treatment records at Waukesha Memorial Hospital was acknowledged, but that this provider charges for records release. In this letter, VA notified the Veteran that VA does not have funds to pay for these fees and requested the Veteran to send these records to VA himself. However, to this date, the Veteran has not responded. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, without the Veteran's participation, the VA was unable to obtain the identified relevant private treatment records. No additional actions were available or required of the VA. As the elements of claim for compensation under 38 U.S.C. § 1151 have not been met, the Veteran's claim must be denied. There is no reasonable doubt to be resolved in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. TDIU Total disability exists when an impairment of mind or body is sufficiently incapacitating that it prevents the average person from securing or following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). A total disability rating may be assigned when the schedular rating is less than 100 percent and the disabled person is unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. See 38 C.F.R. §§ 3.341 (a), 4.16(a). A Veteran's level of education, special training, and previous work experience may be considered as part of a TDIU claim. A Veteran's age or impairment(s) caused by non-service connected disabilities may not be considered as part of a TDIU claim. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.18. The critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran has been assigned a 10 percent rating for bursitis of the right olecranon, a 0 percent rating for bilateral hearing loss, and a 0 percent rating for residuals of depressed fracture on left side of nose. The combined service-connected disability rating is 10 percent. Therefore he does not meet the schedular criteria for a TDIU. When a veteran does not meet the threshold minimum percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may be entitled to a TDIU on an extra-schedular basis, provided he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). See also 38 C.F.R. § 3.321 (b)(1) and Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran asserts that his residuals of orbital bone fracture and residuals of right hand injury have rendered him unemployable. See September 2010 VA Form 21-8940. For the Veteran's claim to be successful, he would have to first show that his residuals of orbital bone fracture and residuals of right hand injury were actually and proximately caused by VA's negligence and that these disabilities render him unable to secure or follow a substantially gainful occupation. As the claim for compensation for a TDIU is derivative of the underlying § 1151 claim for residuals of orbital bone fracture and residuals of right hand injury, the failure of those claims in the above discussion would effectively moot this secondary claim. Further, the Veteran does not assert, and the evidence of record does not suggest, that the Veteran's combined service-connected disabilities (bursitis of the right olecranon, bilateral high frequency sensorineural hearing loss, and residuals of depressed fracture on left side of nose, with combined evaluation of 10 percent), renders him unable to obtain or maintain substantially gainful employment. Accordingly, the Board finds that remand for referral of consideration of a TDIU on an extraschedular basis is not required. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs