Citation Nr: 20007057 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 14-18 992 DATE: January 28, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent, to include as on an extraschedular basis, for a right wrist disability, currently characterized as right wrist tendinitis with carpal insufficiency non dissociative with complete tear of the scapholunate ligament and ganglion cyst residuals is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 1986 to November 1998. As discussed further below, the Veteran contends that he is entitled to a disability rating in excess of 10 percent for his right wrist tendinitis with carpal insufficiency non dissociative with complete tear of the scapholunate ligament and ganglion cyst residuals (hereinafter “right wrist disability”). This matter was previously remanded by the Board of Veterans’ Appeals (Board) in June 2018. As an initial matter, the Board finds that its June 2018 remand directives have been substantially complied with. In June 2018 the Board directed that the Veteran’s right wrist disability claim be remanded to accomplish the following: obtain updated VA treatment records; associate a missing January 2012 VA wrist examination with the virtual file; obtain from the Veteran a VA Form 21-4142 regarding any private treating providers he has seen for his right wrist disability; and to obtain a new VA examination of the Veteran’s right wrist. As discussed further below, a VA examination of the Veteran’s right wrist was obtained in July 2019. Updated VA treatment records ranging from April 2014 to February 2019 have been obtained and associated with the virtual claims file. VA sent the Veteran blank VA 21-4142 forms in March 2019 and May 2019; the Veteran did not return the completed forms. In July 2019 the Veteran sent a single page of private treatment records dated to July 2013. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence”. Wood v. Derwinski, 1 Vet. App. 190, 193 (U.S. 1991). The Board acknowledges that the record is unclear as to what VA examination was administered to the Veteran in January 2012. The record before the Board includes a January 2012 Hand and Finger examination that does not include evaluation of the Veteran’s right wrist. However, the record also includes a March 2012 addendum to a referenced January 2012 right wrist examination. The Board notes that the March 2012 reproduces range of motion testing and other clinical findings related to the Veteran’s right wrist in January 2012, and adds a further medical opinion reconciling range of motion testing conducted across different VA examinations. Given the foregoing, the Board finds that its remand directives have been substantially complied with. The Board must clarify the scope and nature of the claims before it. In January 2008 the Veteran was initially granted service connection for his right wrist disability at a level of 10 percent. In April 2011 he filed a claim for a higher disability rating for his right wrist. An April 2012 rating decision continued the Veteran’s 10 percent rating for his right wrist. In January 2013 the Veteran filed a “request for reconsideration” of the previous decision regarding his right wrist. The Board notes that, effective March 24, 2015, all NODs are required to be submitted on a standardized form. 79 Fed. Reg. 57, 660 (Sept. 24, 2014) (eff. Mar. 24, 2015). However, this provision does not apply to claims that were pending at the time the change became effective. The RO construed the Veteran’s January 2013 filing as a request to reopen his previously denied claim and in an October 2013 rating decision upheld the 10 percent rating. The Veteran timely filed a Notice of Disagreement on VA Form 21-0958 in March 2014, at which time he explicitly raised the issue of entitlement to an increased rating for his right wrist disability on an extraschedular basis. Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The RO issued a Statement of the Case (SOC) in May 2014; the Veteran responded with a Form 9 the same month, timely perfecting his appeal to the Board. In September 2019 correspondence to the Board the Veteran expressly raised the issue of individual unemployability due to service-connected disabilities (TDIU). A claim for entitlement to a total disability based on individual unemployability (TDIU) is inferred from a claim for an increased rating where there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the foregoing, the Board construes the issues currently before it as being entitlement to an increased rating for a right wrist disability with a claim date of April 2011, to include as on an extraschedular basis; and entitlement to TDIU. 1. Entitlement to a disability rating in excess of 10 percent, to include as on an extraschedular basis, for right wrist tendinitis with carpal insufficiency non dissociative with complete tear of the scapholunate ligament and ganglion cyst residuals is remanded. Currently, the Veteran’s right wrist disability is rated at 10 percent under Diagnostic Code (DC) 5215 (“wrist, limitation of motion of”). 38 C.F.R. § 4.71a. No higher rating is available under this DC. The Board notes that no diagnostic code explicitly addresses the Veteran’s specific disability of right wrist tendinitis with carpal insufficiency non dissociative with complete tear of the scapholunate ligament and ganglion cyst residuals. When a particular service-connected disability is not listed in the rating schedule, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. 38 C.F.R. § 4.20. Although higher ratings are available under DC 5214 (“wrist, ankylosis of”), such ratings require evidence of ankylosis; the record currently before the Board does not reflect any medical evidence of ankylosis of the Veteran’s right wrist. Further, to the extent that DC 5214 entails reference to range of motion (the 30 percent rating level requires a showing that wrist is ankylosed in a favorable position in 20 to 30 degrees dorsiflexion), range of motion testing conducted by VA examiners in July 2011, January 2012, and July 2019, and by private treating providers in September 2012, demonstrates that the Veteran’s range of motion in dorsiflexion extends beyond the 20 to 30 degree range. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Board notes that the Veteran’s right wrist symptomatology has been characterized as involving “instability.” June 2013 and December 2013 medical provider notes document both lay reports and clinical findings of instability. The July 2019 VA examiner stated that “instability and pain” render the Veteran unable to perform occupational tasks. The Board observes that “instability” is not a disability characteristic addressed by any applicable diagnostic code. However, based on the evidence currently of record, the Board is unable to determine whether the documented “instability” is an exceptional or unusual factor which would render application of the schedule impractical, or whether “instability” is an alternate characterization of the disability characteristics contemplated by 38 C.F.R. § 4.45 (e.g. less movement than normal due to tendon-tie-up; more movement than normal due to relaxation of ligaments; weakened movement due to divided or lengthened tendons). The Board here observes that the 38 C.F.R. § 4.45 factors are evaluated and expressed in terms of range of motion as reflected by pertinent portions of the July 2019 VA examination addressing the effect of pain, weakness, fatigability, and/or incoordination on functional ability under various circumstances. Thus, the Board requires additional evidence in order to make a fully informed decision regarding the nature and severity of the Veteran’s right wrist disability during the period on appeal. Under Thun v. Peake, 22 Vet. App. 11 (2008), the decision to refer a case to the Director, Compensation Service (Director) rests on a two-step analysis. If the evidence presents an exceptional disability picture such that available schedular evaluation is inadequate, and the disability picture exhibits other related factors, such as marked interference with employment, referral to the Director may be warranted. The Veteran’s October 2016 hearing testimony and statements to the July 2019 VA examiner reflect his right wrist disability’s marked interference with his occupation as a chiropractor. In light of the foregoing, an addendum opinion should be obtained from the July 2019 VA examiner regarding the exact nature and severity of the Veteran’s right wrist disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As noted above, the Veteran has explicitly raised the issue of entitlement to TDIU. Further development is necessary to enable the Board to make a determination on the issue of the Veteran’s entitlement to TDIU. The record before the Board does not contain sufficient evidence regarding the Veteran’s employment and income circumstances during the period on appeal. Therefore, this claim should be remanded to obtain additional information regarding the Veteran’s employment and income circumstances during the period on appeal. These matters are REMANDED for the following action: 1. Forward the claims file, including this remand, to the VA examiner who provided the July 2019 opinion. If the July 2019 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinion should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is to provide the following addendum opinions: (a.) Are the references to wrist “instability” in the July 2019 VA examination and the Veteran’s treatment records an alternate characterization of the disability characteristics encompassed by the range of motion testing currently of record, or a distinct quality of the Veteran’s particular disability not encompassed by the criteria pertaining to range of motion and ankylosis? In other words, does the instability reference a symptom distinct and non-duplicative of the service-connected limitation of motion of the wrist? (b.) At any point during the period on appeal, to include during flare-ups, does the Veteran’s disability result in impaired function of the Veteran’s hands or fingers? If so, the examiner is directed to evaluate and document the nature and severity of any loss of hand and/or finger function. The examiner must provide a rationale for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. If the addendum opinion or opinions obtained pursuant to Remand Directive 1 reflect that the Veteran’s right wrist “instability” is a distinct quality or feature of the Veteran’s particular disability that contemplates symptoms separate from limitation of motion, then refer the Veteran’s claim for a rating in excess of 10 percent for his right wrist disability to the Director, Compensation Service, for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b). 3. Ask the Veteran to complete a TDIU claim form. Ensure that all records obtained pursuant to this remand directive are associated with the claims file. 4. After ensuring any other necessary development has been completed, readjudicate the remaining issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case (SSOC) to the Veteran and his representative and afford them with an appropriate opportunity to respond. The appeal should then be returned to the Board for further appellate review if otherwise in order. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Cody Sametshaw The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.