Citation Nr: 20046867 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 13-03 348 DATE: July 13, 2020 ORDER Entitlement to an initial rating in excess of 30 percent for nerve damage of the right wrist is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT 1. The most probative evidence of record reflects the Veteran’s right wrist nerve damage is manifested by, at worst, moderate incomplete paralysis of the ulnar nerve. 2. The Veteran does not meet the schedular criteria for a grant of TDIU and his right wrist nerve disability is not so severe as to require referral for consideration of TDIU on an extraschedular basis. CONCLUSION OF LAW 1. The criteria for entitlement to an initial rating in excess of 30 percent for nerve damage of the right wrist have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8516. 2. The criteria for a grant of TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to July 1983. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this matter was previously remanded in an April 2018 Board decision for further development. The Board finds that the development has been completed. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 1. Entitlement to an initial rating in excess of 30 percent for nerve damage of the right wrist The Veteran contends that his right wrist nerve damage disability warrants a higher rating. The Veteran’s right wrist nerve damage disability is rated in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8516. Under Diagnostic Code 8516, on the major side, a 30 percent rating is warranted when there is moderate incomplete paralysis of the ulnar nerve. Id. On the major side, a 40 percent rating is warranted when there is severe incomplete paralysis of the ulnar nerve. Id. On the major side, a 60 percent rating is warranted when there is complete paralysis of the ulnar nerve due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; and loss of extension of ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb; or flexion of wrist weakened. Id. Pursuant to the April 2018 Board remand, the Veteran was afforded a VA examination in January 2019. The Veteran indicated he is right-handed. The VA examiner noted that the Veteran experiences sharp pain with palpation in his right wrist. The Veteran’s ulnar nerve had moderate incomplete paralysis on the right side. No severe incomplete paralysis or complete paralysis resulting in deformity due to flexor contraction of ring and little fingers, atrophy in dorsal interspace, or loss of extension of ring and little fingers was noted. After a review of all the evidence, both lay and medical, the Board finds that an increased rating in excess of 30 percent for right wrist nerve disability is not warranted for the entire period on appeal. The January 2019 VA examiner found the Veteran’s incomplete paralysis to be moderate on the right side. In so finding, the Board acknowledges the Veteran’s complaints of pain and functional loss due to ulnar nerve issue. See January 2013 VA Form-9. However, the overall disability picture does not suggest that the right wrist nerve disability warrants a rating in excess of the currently assigned rating. In so finding all of the above, the Board notes that the Veteran is competent to report on symptoms and credible to the extent that he believes he is entitled to a higher rating for his disability. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiner has the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The issue of TDIU is before the Board as a part of the increased rating claim for right wrist nerve disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although entitlement to TDIU, was not discussed in the April 2018 Board remand, the Veteran’s claim of unemployability has persisted in the record. TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran’s combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his or her case outside of the norm. The sole fact that he or she is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran who fails to meet these percentage standards may still qualify for an extraschedular TDIU rating under 38 C.F.R. § 4.16(b). Under that provision, VA will grant a TDIU when the evidence shows that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran’s education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 U.S.C. § 4.16. Therefore, at the regional office (RO) level, rating boards are to submit to the Director of Compensation Service (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The Board itself cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). However, the Board can adjudicate whether to refer a case to the Director for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). In this case, the Veteran is service connected for right wrist nerve damage at 30 percent and status post fusion osteoarthritis of the right wrist at 10 percent. The Veteran’s combined rating is 40 percent. See 38 C.F.R. § 4.25. Therefore, the Veteran does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). Accordingly, the only remaining question is whether referral for extraschedular TDIU is warranted under 38 C.F.R. § 4.16(b). The record reflects that the Veteran submitted a VA Form 21-4192 in November 2010 concerning entitlement to TDIU. The form noted that the Veteran had been laid off in December 2008 from his work as a metal shop worker and that the company was not aware of any disability. Further, the Veteran’s service-connected disabilities do not present a disability picture indicating that TDIU is warranted. The Veteran underwent VA nerve examinations in July 2011 and January 2019. The January 2019 VA examiner noted that the Veteran has trouble doing leisure activities such as riding his motorcycle, opening jars, or grasping a fishing rod during flare-ups. However, both the 2011 and 2019 examinations noted functional impact concerning his ability to perform occupational tasks. When he did work, he was assigned other duties due to his nerve pain. Therefore, there is insufficient evidence to conclude that the Veteran’s education, training, and experience preclude him from securing and maintaining all forms of substantially gainful employment due to service-connected disabilities. Thus, referral to the Director of Compensation Service is not warranted, and entitlement to TDIU must be denied. See 38 C.F.R. § 4.16(b). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran’s claim for a TDIU, that doctrine is not helpful to the Veteran. 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). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board, R. Smith Department of Veterans Affairs 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.