Citation Nr: 20039733 Decision Date: 06/10/20 Archive Date: 06/10/20 DOCKET NO. 12-30 142 DATE: June 10, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for a ganglion cyst of the left wrist is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 31, 2015, is denied. REMANDED Entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(s) prior to January 18, 2016, is remanded. FINDINGS OF FACT 1. December 2016 VA examinations substantially complied with the Board’s July 2016 remand directives in evaluating the severity of the Veteran’s left wrist disability. 2. The Veteran’s left wrist disability is not manifested by ankylosis or neurologic deficit. 3. Prior to July 31, 2015, the evidence of record does not show that the Veteran’s service-connected disabilities precluded him from holding substantially gainful employment prior to that date. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a ganglion cyst of the left wrist have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5214, 5215, 4.118, Diagnostic Code 7819. 2. The criteria for entitlement to a total disability rating based on individual unemployability prior to July 31, 2015, have not been met. 38 U.S.C. §§ 1155, REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2002 to November 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In January 2016, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been prepared and associated with the Veteran’s claims file. The Board notes the extensive procedural history of the present matters and incorporates by reference the detailed history provided in the February 2018 Board decision. In addition, most recently, these matters were once again before the court. See October 2019, Memorandum Decision, No. 18-3206. In addressing the Veteran’s claim for an initial rating in excess of 50 percent for the Veteran’s service-connected PTSD, the Court modified the Board’s February 2018 decision to reflect the benefit as granted, as a 70 percent rating from November 16, 2011 to July 30, 2015, and a 100 percent rating from July 31, 2015 and thereafter. Id. As the Court affirmed the grant of 70 percent as of July 30, 2015 and prior thereto, as well as affirmed the grant of 100 percent from July 31, 2015 and thereafter, there is no longer a claim in controversy as to that issue and this issue is no longer before the Board. As to the Veteran’s claims for a rating in excess of 10 percent for a ganglion cyst of the left wrist (alternatively referred to herein as a “left wrist disability”) and for TDIU, the Court vacated the Board’s February 2018 order, and remanded those claims to the Board for further adjudication. Id. Specifically, as to the left wrist disability, the Court found that the Board erred in failing to address the adequacy of the December 2016 examination and its compliance with the Board’s prior remand directives. Id. Due to this omission from the Board’s decision, the Court remanded the issue for further adjudication. In finding a remand necessary as to the left wrist disability, the Court also remanded the issue of TDIU, making no specific findings as to that claim other than to note that the two claims are inextricably intertwined, necessitating remand. Id. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 10 percent for a ganglion cyst of the left wrist. The Veteran’s left wrist disability was granted service connection with a 0 percent disability rating in the January 2012 rating decision currently on appeal. See January 2012, Rating Decision. After timely noting disagreement to that rating assigment (see February 2012, NOD), the RO increased the initial disability rating to 10 percent based in part on August 2012 MRI findings which revealed fibrocartilage tears and ligament disruption, producing painful motion of the left wrist. See September 2012, Statement of the Case and Rating Decision. The Veteran timely perfected an appeal and in a July 2016 decision, the Board remanded the issue for further development. See July 2016, Board Decision. Specifically, the Board found that the Veteran testified that his disability had worsened and was now manifesting through tingling, numbness, and swelling, which the Veteran believed was indicative of a disability beyond just a ganglion cyst. Id.; see also January 2016, Hearing Transcript. In noting that the Veteran is also service connected for carpal tunnel syndrome of the right wrist, and that the Veteran’s prior examination of the left wrist did not include a sensory examination, the Board found that a new examination was warranted. See July 2016, Board Decision. For the following reasons, the Board finds that the examinations administered in December 2016, and previously relied upon by the Board (see February 2018, Board Decision), at a minimum, substantially complied with the Board’s prior remand directives as to the Veteran’s left wrist disability claim. Stegall v. West, 11 Vet. App. 268, 271 (1998) (explaining that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Substantial compliance has long been held as the standard applied to the VA when carrying out remand directives to comply with Stegall authority. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (finding no error where there was substantial compliance with remand directives); Evans v. West, 12 Vet. App. 22, 31 (1998) (holding that remand was not warranted because remand orders were substantially complied with); see also Mariano v. Principi, 17 Vet. App. 305, 311 (2003) (remand necessary where substantial compliance with Board’s remand orders was not found). Furthermore, based upon the finding of compliance with the prior remand directives, a rating in excess of 10 percent for the Veteran’s left wrist disability remains denied. Turning first to the issue of compliance with the Board’s remand directives, in July 2016 the Board directed that the RO, “[s]chedule the Veteran for VA orthopedic and neurological examinations by an appropriate examiner to determine the nature, extent, and severity of manifestations from his service-connected ganglion cyst of the left wrist.” See July 2016, Board Decision. In response, two separate examinations were administered. See December 2016, VA Examination Reports: Wrist Conditions and Peripheral Nerve Conditions. On appeal, the Veteran’s representative first took issue with the title of these records, as they were labeled in connection with his disability for his “right wrist status post release with ganglion cyst, major.” The Board finds that this argument is unavailing as it is not the title of a record but its substance that is considered in determining its evidentiary value. The Board also notes that duplicative examination reports for the sole purpose of providing separate titles, although the same testing is completed for both anatomical sides, would be futile and inefficient. Finally, the Board finds that the administration of these examinations, in furtherance of the then-pending claim for increase of the Veteran’s right wrist disability, and efficiently utilized in furtherance of adherence to the Board’s remand directives for the left wrist disability, represents complete compliance with the initial portion of the Board’s instruction: to “[s]chedule the Veteran for VA orthopedic and neurological examinations by an appropriate examiner to determine the nature, extent, and severity of manifestations from his service-connected ganglion cyst of the left wrist.” Moving to the next instruction, the Board directed that the examiner be provided with the claims file and copy of the July 2016 remand order for review. See July 2016, Board Decision. The Board finds that the examiner for both of the relevant VA examinations was the same, Dr. S.D. The Board also finds that both examinations were completed on the same date, December 21, 2016. Finally, as indicated in the VA Wrist Conditions examination report, the physician identified that the Veteran’s virtual claims file, which notably included the July 2016 remand directives and final order of the Board, had been reviewed. See December 2016, VA Wrist Conditions Examination Report. Accordingly, the Board finds that there has been complete compliance with this directive as well. The next remand instruction is the further subject of contention of the Veteran’s representative, as he argued on appeal that the examiner was instructed, “to ascertain the status of the [left wrist ganglion cyst] disorder…to include and electromyography [EMG} and/or nerve conduction study (if deemed necessary) should be performed and a written interpretation of such should be associated with the examination report.” See January 2019, Appellant’s Brief, pg. 12. The instruction, in its entirety, read as follows: All studies and tests needed to ascertain the status of the disorder, to include any medically indicated tests to include an electromyography and/or nerve conduction study (if deemed necessary), should be performed and a written interpretation of such should be associated with the examination report. July 2016, Board Decision, pg. 21. The Board notes that this instruction in itself contains multiple qualifiers, leaving discretion to the medical professional for exacting the course of examinations necessary. First, not only is this the most effective form of recourse for the Veteran, as medical decision-making is deferred to the medical experts, but it is legally required as the Board is not to make medical findings or insert its own medical opinions, but is to weigh and assess the credibility of the medical evidence of record. See Colvin v. Derwinski,1 Vet. App. 171, 175 (1991). Second, in this instruction, the Board directed the examiner to perform “all studies and tests needed…,” giving the examiner the authority to determine which studies and tests may be needed. Then, the Board indicated specific tests to be considered, in other words, directed the examiner to determine whether the specific tests were needed, including an EMG. To be certain that the Board’s instruction, which already began with the qualifier of “[a]ll studies and test needed…”, the Board further added, “if deemed necessary…” after noting EMG and/ or nerve studies could be considered. Finally, there is nothing which can be read as ambiguous within the instruction when read as a whole. There is no compulsory language requiring the completion of an EMG test, but rather, multiple qualifiers of deference given to the medical expert to determine what test is needed to assess the claim. Indeed, the case of Dyment v. West, presented a similar situation. Dyment v. West, 13 Vet. App. 141, 146 (1999). In that case, the Board’s remand directives for a new VA examination included explicit and compulsory language for the examiner to presume that the Appellant had been exposed to asbestos when assessing the claim. Id. The medical examiner failed to presume exposure, but nevertheless, rendered a medical conclusion later relied upon by the Board. Id. The examiner concluded that upon review of the relevant medical evidence of record, asbestos was not involved in the Appellant’s disease. Id. The Court, quoting Stegall, found that the examiner substantially complied with the Board’s remand directives because the Board had ultimately requested that the examiner make a determination as to whether asbestos contributed to the Veteran’s disability. Id. (quoting Stegall, 11 Vet. App. at 271). Despite the examiner’s failure to follow the required language of considering asbestos exposure, the Court still found substantial compliance to the remand directives because the crux of the Board’s instruction, to provide a medical conclusion on asbestos involvement with the claimed disability, had been followed. Id. If such action constitutes substantial compliance, the Board finds that here, where there is no such compulsory language but medical deference given to the examiner, not only was there substantial compliance, but complete compliance. The Board’s remaining July 2016 directives included instructions to: record medical complaints, symptoms, findings, describe ranges of motion, determine the presence of atrophy, changes in condition of the skin indicative of disuse, weakness, incoordination, temperature changes, bone deformities, or other objective manifestations demonstrating functional impairment due to pain. The examiner was also requested to comment on pain on movement and muscle and nerve involvement. As to each of the above instructions, the Board finds that the examiner substantially complied and ultimately provided the information sought by the Board giving rise to the remand. The examiner noted abnormal range of motion, with palmar flexion limited to 80 degrees, dorsiflexion to 70 degrees, ulnar deviation to 40 degrees, and radial deviation to 20 degrees. See December 2016, VA Wrist Conditions Examination. It was noted that range of motion limitation did not contribute to functional loss and although there was pain noted on the examination through range of motion testing of ulnar deviation, it also did not cause functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or soft tissue, no pain with weight bearing, no evidence of crepitus. Repetitive use testing was performed without additional loss of function or range of motion after three repetitions. Although the examination was not performed immediately after repeated use over time, it was found that it was neither medically consistent or inconsistent with the Veteran’s statement describing functional loss after repetitive use over time. The examination was not conducted during a flare-up, however, the Veteran did not report experiencing flare-ups. Muscle strength testing of the left wrist revealed 5/5 scores in both areas, no muscle atrophy was present neither was ankylosis. Finally, the disability was noted as not impacting the Veteran’s ability to work. In the additional peripheral nerve conditions examination, it was found that the Veteran did not have any symptoms of the left wrist attributable to any peripheral nerve condition. See December 2016, VA Peripheral Nerve Examination. A sensory examination of the left side was normal in all areas, there was no presence of trophic changes, the Veteran’s gait was normal, and specialty testing of the median nerve on the left side was negative. All nerve testing of the left side was normal, and there was no demonstrated functional impact found from the Veteran’s left wrist disability. Based upon the detailed foregoing findings reported within the completed examinations, and the resulting readjudication of the Veteran’s claim for increase of his initial disability rating of the left wrist, the Board finds that its July 2016 remand directives were, at a minimum, substantially complied with. Thus, the examinations are adequate for the determination of the Veteran’s claim on the merits. Stegall, 11 Vet. App. at 271. Finally, given the above noted testing results, the Board finds that the Veteran’s disability warrants a 10 percent rating, but no higher, based upon painful motion of the left wrist. The Veteran’s disability is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 7819-5215. Diagnostic Code (DC) 7819 applies to benign skin neoplasms and directs that the disability at issue be rated based on limitation of function. Diagnostic Code 5115 assigns a maximum 10 percent rating for limitation of motion of the wrist, where dorsiflexion is less then 15 degrees or palmar flexion is limited in line with the forearm. A higher evaluation of 30 percent for ankylosis of the left wrist under DC 5214 is not warranted in the absence of ankylosis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, entitlement to a rating in excess of 10 percent for the Veteran’s service-connected ganglion cyst of the left wrist is not established. 2. Entitlement to total disability rating for compensation based on individual unemployability (TDIU), prior to July 31, 2015. The Veteran contends that his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled 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, the disability shall be ratable at 60 percent or more. If there are two or more such 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). A finding of total disability is appropriate, “when there is present any impairment of mind or body 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), 4.15. 38 C.F.R. § 4.16 states that “[m]arginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a); see also Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016) (concluding that the terms “substantially gainful occupation” and “substantially gainful employment” in § 4.16 are “synonymous”). In considering whether employability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Turning to the case at hand, prior to July 31, 2015, the Veteran’s combined disability rating was 80 percent, with 70 percent assigned for his PTSD disability, satisfying the schedular criteria for consideration of TDIU. The Board finds that the evidence demonstrates that the Veteran was employed full-time as a truck driver throughout the pendency of his appeal until November 2016. However, the fact that the Veteran was employed does not preclude him from establishing entitlement to a TDIU if the employment was not substantially gainful. “Substantially gainful employment” is that employment, “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.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In the case at hand, the Veteran has not argued that his employment has been marginal, and he has not demonstrated that his earnings from said employment were below the poverty threshold for one person at any point prior to his termination. Therefore, the Board finds that entitlement to TDIU prior to July 31, 2015, is not warranted. REASONS FOR REMAND Entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(s) prior to January 18, 2016. The Board notes that the Veteran’s additional service-connected disabilities between July 31, 2015 and January 18, 2016, do not rise to the schedular threshold requirements for consideration of special monthly compensation under 38 U.S.C. § 1114(s). See April 2016, Rating Decision (demonstrating that aside from PTSD, the Veteran is service-connected for: (1) migraine headaches rated at 30 percent; and (2) left and right wrist disabilities rated at 10 percent each, with a combined rating (including bilateral factor for wrist disabilities) of 40 percent. However, the Board recently issued a decision in February 2020 addressing an increased rating claim for the Veteran’s service-connected migraine headaches. See February 2020, Board Decision. The Board finds that the issue of entitlement to SMC prior to January 18, 2016, is inextricably intertwined with the increased rating claim for the Veteran’s migraine headaches. See 38 U.S.C. §§ 1114(s), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350(i)(1). Therefore, as the AOJ has not yet had opportunity to implement the Board’s February 2020 decision, the issue of SMC is not currently ripe for adjudication before the Board, and it is remanded to the AOJ for due consideration, as necessary, based upon implementation of the Board’s February 2020 order. This matter is REMANDED for the following action: Upon implementation of the Board’s February 2020 order, readjudicate the issue of entitlement to special monthly compensation pursuant to 38 U.S.C. §§ 1114(s), for the period prior to January 18, 2016. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, Associate Counsel 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.